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CASE NO.: Appeal (civil)  7253 of 2002

PETITIONER: Manik Lal Majumdar and others

RESPONDENT: Gauranga Chandra Dey and others  

DATE OF JUDGMENT: 26/02/2004

BENCH: D.M. Dharmadhikari

JUDGMENT: J U D G M E N T

Dharmadhikari J.

This appeal is directed against the order dated 21.6.2001  passed by the High Court of Gauhati.  The appellant is the tenant of  the leased premises in dispute.  The appeal to the Appellate Authority  against the order of eviction  from the leased premises on the ground  of default in payment of rent passed by the Rent Control Court has  been dismissed on the alleged failure of deposit of rent, being a  mandatory pre-condition for preferring appeal under Section 20 read  with Section 30 of the Tripura Buildings (Lease and Rent Control) Act  1975 (for short hereinafter referred to as the Act).

Learned Single Judge of the High Court formed an opinion  that a decision of the Division Bench of the High Court in the case of  Binapani Roy vs. State of Tripura [1994 (1) GLR 98], in the light  of subsequent decision of the Supreme court on identical provisions  of Kerala Act in the case Chinnamma vs. Gopalan [1995(6) SCC  491], requires reconsideration by a larger bench.  The learned Single  Judge formulated and referred the following question for decision of  the larger bench. "Whether in view of section 13 of the Act, 1975, the appellate  Court is prohibited from entertaining an appeal unless the  tenant has paid or pays to the landlord or deposits with the Rent  Control Court or the appellate authority, as the case may be, all  arrears of rent admitted by the tenant to be due in respect of  the building up to the date of payment or deposit and continues  to pay or deposit any rent which may subsequently become due  in respect of the building until termination of the proceedings  before the Rent Control Court or the appellate authority, as the  case may be?"

The Division Bench answered the question against the tenant  by holding thus: "Thus, it is clear that payment or deposit of arrears of rent  admitted by the tenant and also the future rent to be due is  required to enable the tenant to contest the eviction  proceedings before the Rent Control Court or to file appeal  against the order of Rent Control Court.  This condition is sine- qua-non for the purpose of contesting the eviction proceedings  or filing of an appeal.  By no stretch of imagination it can be  presumed that tenant may be allowed to contest the eviction  proceedings or to file an appeal, without making such deposit as  required by law, appeal being a creature of statute, the right  conferred by the statute is also subject to any other condition  imposed by the statute."

The learned counsel appearing for the tenant assailing the

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correctness of the judgment of the Division Bench has contended that  pre-deposit of arrears of rent and  future regular payment of rent  during pendency of the appeal may be a mandatory pre-condition for  consideration or hearing of the appeal by the tenant but the filing or  presentation of the appeal without deposit cannot be held to be  incompetent.  It is submitted that until the requisite deposit of rent is  made the proceedings in the appeal may be suspended as provided in  sub-section (3) of Section 13 but the tenant would have a right of  consideration or hearing of his appeal after he makes good the  requisite deposit in accordance with sub-section (1) of Section 13  read with sub \026section (2) thereof.

On the other hand, learned counsel appearing for the  landlord supported the reasoning and conclusion of the Division  Bench in the impugned judgment.

The legal question that arises in this appeal before us is on  the tenability of the appeal without pre-deposit of arrears till the date  of filing or presentation of the appeal.   

To answer the above question a critical examination of the  provisions of sections 13 & 20, in the light of the scheme and object  of the said provision in the Act, is necessary. "Section 13(1): No tenant   against whom an application for  eviction has been made by a landlord under section 12 shall be  entitled to contest the application before the Rent Control  Court under that section, or to prefer an appeal under section  20 against any order made by the Rent Control Court on the  application, unless he has paid or pays to the landlord, or  deposits with the Rent Control Court or the appellate authority,  as the case may be, all arrears of rent admitted by the tenant to  be due, in respect of the building up to the date of payment or  deposit, and continues to pay or to deposit any rent which may  subsequently become due in respect of the building, until the  termination of the proceedings before the Rent Control Court or  the appellate authority, as the case may be.

(2)     The deposit under sub-section (1) shall be made within  such time as the Rent Control Court may fix and in such manner  as may be prescribed and shall be accompanied by the fee  prescribed for the service of notice referred to in sub-       section (4). Provided that the time fixed by the Rent Control Court for the  deposit of the arrears of  rent shall not be less than forty five  days from the date of the order and the time fixed for the  deposit of rent which subsequently accrues due shall not be less  than two weeks from the date on which the rent becomes due.

(3)     If any tenant fails to pay or  to deposit the rent as  aforesaid, the Rent Control Court or the appellate authority, as  the case may be, shall, unless the tenant shows sufficient  cause to the contrary, stop all further proceedings and make  an order directing the tenant to put the landlord in possession of  the building.

(4)  When any deposit is made under sub-section(1), the Rent  Control Court or  the appellate authority, as the case may be,  shall cause notice of the deposit to be served on the landlord in  the prescribed manner, and the amount deposited may, subject  to such conditions as may be prescribed, be withdrawn by the  landlord on application made by him to the Rent Control Court  or the appellate authority in that behalf.

Section 20 (1) (a). The State Government may, by general or  special order notified in the Official Gazette, confer on such

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officers and authorities not below the rank of a subordinate  judge the powers of  appellate authorities for the purposes of  this Act in such areas or in such classes as may be specified in  the order.

(b)     Any person aggrieved by an order passed by the Rent  Control Court may, within thirty days from the date of such  order, prefer an appeal in writing to the appellate authority  having jurisdiction.

Note: In computing the thirty days in this clause, the time  taken to obtain a certified copy of the order appealed against  shall be excluded.

(2)     On such appeal being preferred, the appellate authority  may order stay of further proceedings in the matter pending  decision on the appeal.  

(3)     The appellate authority shall call for the records of the  case from Rent Control Court and after giving the parties an  opportunity of being heard, and if necessary, after making such  further inquiry as it thinks fit, either directly or through the Rent  Control Court, shall decide the appeal.

Explanation: The appellate authority may, while confirming the  order of eviction passed by the Rent Control Court, grant an  extension of time to the tenant for putting the landlord in  possession of the building.  

(4) The appellate authority shall have all the powers of  the Rent Control Court including the fixing of arrears of  rent.

(5) The decision of the appellate authority, and subject to such  decision, an order of the Rent Control Court shall be final and  shall not be liable to be called in question in any court of law,  except as provided in Section 22." [Underlining for pointed attention] Section 33 confers power on the State Government to make  rules to carry out the purposes of the Act including for regulating the  procedure to be followed by the Rent Control Courts and appellate  authorities in performance of their functions under the Act.  In  exercise of the aforementioned rule making power Tripura Buildings  (Lease and Rent Control ) Rules 1979 have been framed and the  relevant Rules regulating the procedure of appeals i.e. Rules 15 and  16 read as under: "Section 15(1). Every appeal against an order either of the  Accommodation controller or the Rent Control Court shall in  addition to the grounds of appeal specify the date on which the  order was received by the appellant.  The memorandum of  appeal shall be signed by the appellant or his counsel and  presented to the Appellate Authority or to such officer as he  appoints in this behalf by the appellant himself  personally or by  his recognised agent or by counsel at any time during office  hours on a working day. The  appeal shall be accompanied by a  copy of the order of the Accommodation Controller or the Rent  Control Court as the case may be against which the appeal is  made.

(2) Every appeal under the Act shall be accompanied by a spare  or sufficient number of spare copies thereof for service on the  respondent or respondents mentioned therein.

Section 16 (1).  When an appeal under the Act is preferred, the  Appellate Authority shall fix a day for hearing the appeal and

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send notice thereof to the appellant or appellants and the  respondent or respondents mentioned in the appeal and shall  also send a copy of the appeal along with notice to the  respondent or respondents.

(2)     The Appellate Authority after hearing the appeal may  decide the appeal finally according to law of equity and good  conscience or may make further enquiry.  The final decision  given shall be reduced into writing.  In the absence of any party  duly summoned to attend, the appeal may be decided exparte.

(3)     If the Appellate Authority decides to make further  enquiry he may take additional evidence or require such  evidence to be taken by the Accommodation Controller or Rent  Control Court, as the case may be.

(4)     .............................................................................. ....................................................... [Underlining for pointed attention] As has been rightly observed by Division Bench of the High  Court in the decision of Binapani Roy (supra) ’Section 13 of the Act  has been inserted with the intendment to avoid litigations for  realization of arrears of rents which is likely to accumulate during the  long period of litigation and also to deter the tenant from resorting to  unfair practice to use and occupy tenanted premises without payment  of rent during the long period of  protracted litigation.’

The decision in Binapani Roy (supra) does not directly deal  with and answer the question posed before us.  In that case the  interpretation of the words and expression "admitted by the tenant to  be due" as used in sub-section (1) of  Section 13, came up for  interpretation.  To make the said provision workable it was held that  the above-mentioned expression can not be given a literal meaning  as conveying  only the rent which has been admitted in the pleadings  by the tenant.  It was held that in order to fulfil the object of the  provision which is in the interest  of the landlord the expression is to  be understood reasonably to mean ’the rent which can be found to be  due from  the facts and materials  on record.’

The decision of the Supreme Court in the case of  Chinnamma (supra) which interprets similar provisions in the Kerala  Act also does not deal with point involved before us.  In that case it  was held that provisions of Section 11(2) of the Kerala Act, which are  comparable to Section 13(1) of the present Act, impose an obligation  in specified terms on the tenant to enable him to contest the  proceedings before the Rent Control Court.  He is required to deposit  the arrears of rent (along with interest and cost of proceedings) for  which the landlord had sent a demand notice on him and on basis  whereof the Rent Control Court had passed an order of deposit under  Section 11(2) (b) of the Kerala Act which is comparable to Section  13(2) of the present Act.  The Supreme Court held that the arrears of  rent to be deposited before the Rent control Court as a  pre-condition  for contesting the case by the tenant are only arrears of rent for  which a notice has been served by the landlord and ’would not  include rent which might become due till the actual date of deposit  under the order of the Rent Control Court.’  The above proposition  does not directly answer the question of the nature of the  requirement of deposit of arrears as a pre-condition for preferring  appeal under Section 20 of the Act under consideration before us.   The Division Bench in the impugned judgment, therefore, was right in  observing that the decision of the Division Bench of the High Court in  Binapani Roy’s case (supra)  which was on a different point was not  required to be reconsidered by the larger bench in the light of  decision of this Court in Chinnamma’s case (supra).

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The question, therefore, arising needs to be answered on a  proper and reasonable interpretation of the provisions of Section 13  read with Section 20 of the Act.   

Sub-section (1) of Section 13 restricts right of tenant to  contest proceedings before the Rent Control Court as also appeal  arising from them.   The language of sub-section (1) is "no tenant  ............. shall be entitled to contest the application before the  Rent Control Court under that section, or to prefer an appeal  under Section 20 against any order made by the Rent Control Court  on the application, unless he has paid or pays to the landlord, or  deposits with the Rent Control Court or the appellate authority, as the  case may be,  all arrears of rent admitted by the tenant to be  due in respect of the building up to the date of payment or deposit,  and continues to pay or deposit any rent which may subsequently  become due in respect of the building, until the termination of the  proceedings before the Rent Control Court or the appellate authority,  as the case may be."  

Sub-section (2) of Section 13 contemplates passing of an  order by the Rent Control Court fixing the time and manner of deposit  to be made by the tenant under sub-section (1).  

The proviso below sub-section (2) empowers the Rent Control  Court to fix period of not less than 45 days for deposit of arrears of  rent and not less than two weeks for future rent.  The minimum  period indicated in proviso to sub-section (2) for making two kind of  deposits allows larger periods than the minimum prescribed to be  granted by the Rent Control Court.

After the Rent Control Court has fixed the period and manner  of two kinds of deposits i.e. arrears and future rent,  if there is failure  on the part of the tenant to make the requisite deposits within the  prescribed period, the Rent Control Court in the original proceedings  and appellate court in appeal proceedings can stop all further  proceedings.  The tenant if, however, shows sufficient cause for  failure or delay in deposit, the Rent Control Court or the appellate  authority, as the  case may be, has discretionary power under sub-  section (3) not to take adverse action against the tenant of stopping  all proceedings and directing the tenant to put the landlord in  possession of the building.  The use of the expression "unless tenant  shows sufficient cause to the contrary"  as used in sub-section (3)  clearly gives such a discretion.  Sub-section (1) and sub-section (3)  of Section 13 make express mention both of "Rent Control Court and  appellate authority"  for the application of those provisions to original  proceedings as also to the appellate proceedings.  Deposit of arrears  of rent and future rent are two pre-conditions for the tenant to  contest the original proceedings and avail remedy of appeal. In sub- section (2) of Section 13, there is only mention of Rent Control Court  empowering it to fix time and manner of deposit of arrears and future  rent.  The omission of words "appellate authority" in sub-section (2)  of Section 13 prima facie gives an impression that fixation of time  and manner for two kinds of deposits of arrears and future rent are  not required to be made by the appellate authority.  

This omission of the words "appellate authority" in sub-section  (2) however, is made good by incorporating sub-section (4) in  Section 20. Section 20 with its sub-sections creates forum for  appeals, describes nature of power of appellate authority and  prescribes period of limitation for appeals, preferable either by the  landlord or by the tenant, as the case may be, who feels aggrieved  by the order of Rent Control Court. Sub-section (4) of Section 20 states "the appellate authority  shall have all the powers of the Rent Control Court including the  fixing of arrears of rent.

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The language employed in sub-section (4) gives all powers of  Rent Control Court to Appellate Authority inclusive of the power of  Rent Control Court to fix arrears of rent.  On examination of all other  provisions of the Act, power to fix arrears of rent by the Rent Control  Court is to be found only in sub-section (2) of Section 13 and in no  other provision.  The legislative intent of conferring same power of  Rent Control Court under sub-section (2) on the appellate authority is  clear from incorporation of sub-section (4) in Section 20 which  regulates the power and procedure of appeal.  Since the appellate  authority has been conferred with all powers of Rent Control Court,  non-mention in sub-section (2) of ’appellate authority’ with ’Rent  Control Court’  seems to be a deliberate omission.  

It is true that when a tenant prefers an appeal there may be a  case where the arrears of rent due up to the date of order of the Rent  Control Court are already quantified and the dispute of quantum  and/or rate of rent stands decided by the original order.  That would  enable the tenant to deposit the arrears at the time of filing of the  appeal.   

The language "all arrears of rent admitted by the tenant to be  due", as has been used in Section 13(1), has been interpreted by the  Division Bench of the High Court in the case of Binapani Roy  (supra). I find that the Division Bench has reasonably construed that  expression as not merely conveying ’such rent as has been admitted  by such tenant in his pleadings.’  According to the Division Bench the  expression aforementioned has to be so construed as to fulfil the  object of the Act to disable the tenant to withhold rent due pending  eviction proceedings against him or appeal by him.  The expression  has been construed to mean ’the rent which is ascertainable as  admitted from the record of the case.’  The legislature also intends  that the so-called admitted arrears and recurring rent to be deposited  or paid by the tenant during eviction proceedings or appeal preferred  by him, are required to be judicially or quasi-judicially determined in  accordance with sub-section (2), with fixation of time and manner of  its deposit or payment.  Such an interpretation of expression "all  arrears of rent admitted by the tenant to be due" is  necessary  because there may be various kinds of situations in different cases,  such as, where the tenant denies his relationship with the landlord, or  disputes the quantum of arrears and/or rate of rent.  In such  situations, it might be found necessary in original proceedings for the  Rent Control Court to determine the rent which can be said to be  admittedly due and similar determination might be required in  appeal.  

On behalf of the landlord, learned counsel has argued that  sub-section (1) of section (13) which is intended to protect the  interest of the landlord casts a mandatory pre-condition on the tenant   to  deposit or pay arrears of rent due up to the date of deposit and  make future payment for preferring appeal.  It is submitted that  appeal without payment of arrears of rent found due against the  tenant is incompetent.  The appeal cannot even be filed without  deposit of rent.  In appeal, any order under sub-section (2) of section  13 is not contemplated which is restricted in its application to  proceedings before Rent Control Court.   In this respect it is  submitted that a strict literal construction is required to be placed on  the provisions of Section 13(1)(2) & (3) of the Act.  Reliance is placed  on the decision of this Court in Nasiruddin vs. Sita Ram Aggarwal  [2003 (2) SCC 517].

We find that the decision of Nasiruddin (supra) of this Court  turned on the express language of Section 13(4) of the Rajasthan  Premises (Control of Rent and Eviction) Act 1950.  The said section  required a tenant to deposit or pay to the landlord the amount of rent  determined by the court under  sub-section (3) of that section within

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15 days from the date of such determination or within such  further time not exceeding three months as may be extended  by the Court.

The section further provides that the tenant has to continue to  deposit in court or pay to the landlord future monthly rent by 15th of  each succeeding month or within such further time not  exceeding 15 days as may be extended by court.

Failure to deposit or pay the rent as required by sub-     section (4) in the specified time enables the court under sub-section  (5) to "strike out the defence of tenant against his proposed  eviction".  It is on the aforesaid language of Section 13(4) of the  Rajasthan Act which prescribes not only an outer limit for deposit of  rent but also the outer limit of extended period for deposit to be  granted by the court, that this Court put strict interpretation on the  provisions regardless  of the harsh consequences that may ensue  against the tenant.  The decision of this Court in Nasiruddin’s case  (supra), therefore, is clearly distinguishable on the peculiar language  of provisions of Rajasthan Act interpreted therein.   It is then contended on behalf of the landlord that both sub- section  (1) of section 13 and section 20 of the Act use the word  "prefer" in respect of remedy of appeal meaning thereby that no  appeal can be filed by tenant without fulfilling the mandatory  condition of  pre-deposit of arrears of rent and future rent.   

The word "prefer" as used in Section 245M of the Income Tax  Act came for consideration before this Court in the case of  Commissioner of  Income Tax Act vs. BN Bhattacharjee [1979  (3) SCR 1133].  Under the provision of Income Tax Act an assesee  can approach a Settlement Commissioner for settlement of his case  but the embargo under section 245 M(1) is that he would not be  entitled to make an application to the Settlement Commission where  Income Tax Officer had preferred an appeal under Sub-section (2) of  Section 253.  The proviso to Section 245M(1) of the Income Tax Act  which came up for interpretation reads thus:

"Provided that no assessee shall be entitled to make an  application in a case where the Income-Tax Officer has  preferred an appeal under sub-section (2) of Section 253  against the order to which the assessee’s appeal relate."  

On the meaning of the word "prefer" an appeal this Court  explained the word thus:

"Preferred" is a word of dual import; its semantics depend on  the scheme and the context; its import must help, not hamper,  the object of the enactment even if liberty with language may  be necessary.

There is good ground to think that an appeal means an effective  appeal.  An appeal withdrawn is an appeal non est as judicial  thinking suggests.

Black’s Law Dictionary gives the following meaning:

PREFER: To bring before; to prosecute; to try to proceed with.   Thus, preferring an indictment signifies prosecuting or trying an  indictment.

To give advantage, priority, or privilege; to select for first  payment, as to prefer one creditor over others.  

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Thus,  it may mean ’prosecute’ or effectively pursue a  proceeding or merely institute it.  Purposefully  interpreted, preferring an appeal means more than  formally filing it but effectively pursuing it."                 (Emphasis added)

In clause (b) of sub-section (1) of Section 20 period of  limitation of 30 days has been prescribed for preferring an appeal in  writing from the order of Rent Control Court, excluding the period for  obtaining certified copy.  The period of limitation prescribed for  preferring an appeal is not the period fixed for deposit of rent as a  pre-condition for preferring an appeal by the tenant.  As has been  noted above, sub-section (1) of section 13 lays down two pre- conditions for preferring an appeal. First is deposit of arrears of rent  due till the date of deposit for appeal and second payment or deposit  of future rent due after the date of deposit.  Such requirements on  the part of the tenant for preferring an appeal are clear indications  that 30 days’ time fixed for appeal in sub-section (2) is not a period  for deposit of arrears of rent due and future rent as a pre-condition  for appeal.   

To enable a tenant to prefer an appeal by fulfilling both the  conditions of deposit of arrears and future rent, it is necessary that as  is the power given to the Rent Control Court, the appellate authority,  on being approached by the tenant, has to pass a judicial or quasi- judicial order not only  for the purpose of fixing the time and manner  of two kinds of deposits but also to determine, on the basis of  record of the case, the rent which can be said to be admitted  to be due by the tenant within the meaning of expression "all  arrears of rent admitted by the tenant to be due" as used in sub- section (1) of Section 13.

The use of the word "prefer" therefore, in sub-section (1) of  Section 13, in the context of the said provision and the other  provisions in sub-sections (2) to (4) of the said Section has a   meaning different from mere filing or presentation of an appeal.   The word "prefer" in the context of Section 13(1), to enable the  tenant to contest original proceedings, or prosecute appellate  proceedings should reasonably mean that the tenant without  requisite deposit of arrears of rent and future rent, shall not be  allowed to prosecute the appeal or be heard in the appeal  against the order  passed by the Rent Control Court.   

The word "prefer" as used in clause (b) of Section 20, in the  context of providing a period of limitation for appeals both by the  landlord and tenant, as the case may be, from the order of the Rent  Control Court, if they feel aggrieved, would have a narrower meaning  as mere filing or presentation of an appeal.  It is so indicated in   Rules 15(1)& (16) where both expressions "presentation of appeal"  and "prefer an appeal" have been used synonymously.  

No doubt, there is a presumption that the legislature uses  same word in different parts of the same statute with the same  meaning.  The presumption is, however, weak and can be displaced  by the context.  Even when the same word is used at different places  in the same clause of the same Section it may not bear the same  meaning at each place having regard to the context of its use.  [See  Principles of Statutory Interpretation by GP Singh 8th Edition Chapter-V,  Synopsis-I at pages 286-287]

The word "prefer" for the purpose of Section 13(1) has to be  distinguished from mere filing of an appeal in the prescribed period  of limitation.  As interpreted by us above sub-section (2) of section  13 containing power of Rent Control Court, in the matter of fixing  period and manner of deposit, is available to the appellate authority

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by virtue of sub-section (4) Section 20.  The expression "all arrears of  rent admitted by the tenant to be due" as used in sub-section (1) of  Section 13 requires adjudication to some extent.  The right of tenant  to prefer an appeal can not be denied to him until such an  adjudication is made. My above conclusion is reinforced by the  language of sub-section (3) of Section 13 which empowers expressly  both the Rent Control Court and the appellate authority to stop all  proceedings and direct the tenant to put the landlord in possession of  the leased premises, if there is a failure on the part of the tenant to  make requisite deposits either of arrears and/or future rent and only  if he is unable to show any sufficient cause for non-deposit or delay.   Such a power with discretion both in Rent Control Court and appellate  authority to stop or refrain from stopping original or appellate  proceedings, as the case may be, and evicting tenant in the event of  default of deposit, also indicates that right of appeal to the tenant can  be deprived to him only if there is  a default on his part and he is  unable to show any sufficient cause for such default.   This also  indicates that filing of an appeal within limitation and  allowing the  tenant to prosecute that appeal due to his failure to make deposits of  arrears and future rent are two different stages or steps in both  original proceedings and appellate proceedings.

Another settled rule of construction of statute is that ’it has to  be presumed that the legislature does not waste its words and  say  anything in vain’.  If sub-section (4) of section 20 is not read as  conferring on the appellate authority full powers of Rent Control  Court including power under sub-section (2) of Section 13, sub- section (4) of section 20 would be rendered otiose or superfluous.  Such a construction which attributes redundancy to the Legislature  has to be avoided. [See Principles of Statutory Interpretation by G.P.  Singh, Chapter-II, Synopsis-I at    Page 63].

       As a result of the detailed discussion aforesaid of the provisions  under consideration before us, I have come to the conclusion that a  tenant can file or present a memo of appeal within the prescribed  period of thirty days excluding the time for obtaining certified copy of  the order in accordance with sub-section (1) of Section 20 but until  and unless he seeks an order from the appellate authority in  accordance with  sub-section (2)  of  Section 13 and makes deposit of  

all arrears of rent and continues to pay future rent in the manner and  within the time directed by the  appellate authority, he would not be  entitled to prosecute the appeal and obtain any interim or final relief  against the order of the Rent Control Court as is contemplated in sub- sections (2) & (3) respectively of the said Section.          In the result, the appeal preferred by the tenant is allowed.   The impugned order passed by the Division Bench is set aside.  The  case is sent back to the appellate authority with liberty to the tenant  to invoke provisions of sub-section (2) of Section 13 as interpreted   above.