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PETITIONER: MANMOHAN KAUR

       Vs.

RESPONDENT: SURYA KANT BHAGWANDI

DATE OF JUDGMENT04/10/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S.

CITATION:  1989 AIR  291            1988 SCR  Supl. (3) 409  1988 SCC  (4) 698        JT 1988 (4)   406  1988 SCALE  (2)1013

ACT:     Bihar Buildings (Lease, Rent and Eviction) Control  Act, 1982:  Section 13--‘Defence against ejectment’ striking  off by  court--when permissible--Failure to deposit rent  within stipulated time--Delay--Explanation of--Acceptable to court- -Court must not strike out defence.

HEADNOTE:     During  the  pendency of the suit for  eviction  of  the defendant-  appellant from the shop-room under s. 11 of  the Bihar Building (Lease, Rent and Eviction) Control Act,  1982 the  Trial Court passed an order directing the appellant  to deposit rent month by month. The appellant having  defaulted in  the  payment  of rent for two  months,  the  respondent- landlord  filed  a  petition under s. 13 of the  Act  for  a direction  to strike out the defence of the  appellant.  The appellant’s  defence  was  that it was  a  case  of  genuine mistake.  The  Trial  Court held that the  excuse  for  non- payment  was  not bona fide and that there  was  unexplained delay to deposit the rent. The Trial Court therefore  struck off  the appellant s defence. The High Court  dismissed  the revision application of the appellant it limine.     Disposing of the appeal, it was,     HELD: (1) The Act, as the preamble states, is inter alia ‘to  prevent unreasonable eviction of  tenants’.  Therefore, though it is for protection of tenants, the Act is  enjoined to  regulate the rights and the duties of the landlords  and the tenants. [413C]     (2)  The Court must from a proper perspective judge  the question whether the delay or failure to deposit the rent in terms of order under section 13 of the Act has been properly explained,  and if that delay has been  properly  explained, then the court has a discretion to excuse the delay, but  if the delay has not been properly explained then the court has no  discretion.  Such a construction would be  a  harmonious rendering   of the language of section l 3 to the claim  for justice in each particular  case. [414B-C]                                                    PG NO 409     (3)  In  construing the question whether the  delay  has been  reasonably  explained or not, the court in the  scheme of  the administration of justice must take  a  constructive

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and purpose-oriented approach. If it does, then the  element of  discretion  comes into play though not in  the  form  of directory or mandatory provision but in considering  whether the delay was properly explained or not. [414C-D]     (4)  In  the facts of this case, there is good  deal  of justification for the delay and the delay has been  properly explained.  The Trial Court, therefore, committed  an  error resulting  in miscarriage of justice. The High Court in  not interfering with this miscarriage too committed an error  of jurisdiction. [4l4D-E]     Ganesh  Prasad  Sah  Kesari v.  Lakshmi  Narayan  Gupta, [1985]  3S.C.R.  825; Mrs. Manju Choudhary  v.  Dulai  Kumar Chandra, [1988] 1 SCC 363 and M/s. B.P. Khemka Pvt. Ltd.  v. Birendra Kumar Bhowmick, [1987] 2 SCC 407, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No  3740  of 1988.     From the Judgment and Order dated 7.7.1988 of the  Patna High Court in C.R. No. 167 of 1988.     Dr. Shankar Ghosh and D P Mukherjee for the Appeliant.     H.K.Puri for the Respondent.     The Judgment of the Court was delivered by     SABYASACHI  MUKHARJI,  J.  Special  leave  granted.  The appeal is disposed of by the judgment herein.     This  is  an appeal from the judgment and order  of  the High  Court of Patna (Ranchi Bench) dated 7th of.July,  1988 By the aforesaid order the High Court confirmed the striking off of the defence of the. appellant in a suit for  eviction under the Bihar Building (Lease, Rent and Eviction)  Control Act,  1982 (hereinafter called ‘the Act’) on the  ground  of personal necessity and change of the nature of the  business by the appellant etc. The plaintiff-respondent filed a  suit for eviction against the defendant-appellant from the  shop- room  under  Section  11 of the said Act  on  the  aforesaid grounds The appellant tiled the written statement contesting the  said  suit.  The case Or the  appellant  was  that  the                                                   PG NO 411 respondent-landlord’s  case  was  false and  a  pretext  for reletting  the  premises  for much  higher  rent  after  her attempt  to  increase rent did not succeed. It  was  further alleged   that  the  landlord  had  sufficient   alternative accommodation which would not entitle him to get a   decree. It was denied that there was no change of business   carried on  apart from those business permitted by the  contract  of tenancy.  There was, however, no such bar in this  case.  On 4th of February, 1983, the asked for an order under  Section 15  of  the said Act against the appellant  for  deposit  of arrears  and current rent. The Trial Court by its  order  on that date directed the appellant to deposit the arrears,  if ny, and continue to deposit rent month by month in future by 15th day of the month next following. It was stated that the appellant  accordingly  got  challans passed  for  2  months together  each time and deposited the amount in time in  the court    treasury   throughout.   However,   through    some inadvertence, rent for the months of November and  December, 1986  could  not  be  deposited.  It  as  alleged  that  the appellant had genuine belief that his son had deposited  the same. It was further the case of the appellant that  neither the landlord nor any court of law ever pointed out this non- deposit  to  the appellant. The appellant  further  asserted that  the challans for subsequent period having been  passed without  any  objection, the  appellant got  the  impression

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which  was bona fide that he had complied with  the  earlier order  of  the  court  and continued  to  be  in  bona  fide occupation of the premises in question. In the premises, the respondent  filed a petition under section 15 of the Act  in the trial court for a direction to strike out the defence on the ground that the appellant failed to deposit rent for the months  of  November  and  December,  1986.  The   appellant contested  the application, inter alia, contending that  the rent  for the said period had been duly deposited and  asked for  a report from the Accounts Branch of the  court.  This, according to the appellant, was because the challan for that period was found missing from the record of the appellant as asserted  by  the  appellant. It  later  transpired  on  the challans  being  produced that the rent for  the  months  of November and December, 1986 had not been actually deposited. The  appellant’s case was and throughout has been that  this was a mistake. The appellant, therefore, got a fresh challan passed on or about 9th March, l988 and deposited the amount. It is further the case of the appellant that all  subsequent amounts have been duly deposited for all subsequent periods. The   respondent   made  his   application,   as   mentioned hereinbefore,  under section 15 of the Act for striking  out the  defence. On 27th March, 1988, the  learned  Subordinate Judge-III, Jamshedpur found that the rent for the months  of November  and  December, 1986 had not  been  deposited.  The defence against the ejectment, therefore, was struck off. It                                                   PG NO 412 was contended before the learned Subordinate Judge that  the time  to  deposit  the  rent  from  time  to  time,   though originally  granted  for two months had  expired,  could  be extended. On the other hand, on behalf of the respondent, it was urged that the defence was bound to be struck off  since it  was apparent that the amount had not been deposited.  It was  asserted  that the defence of the  appellant  that  the amount  had been deposited, and the assertion to  which  the appellant struck was obstinate and wrong and, therefore, not bona  fide.  Taking  view of  these  evidence,  the  learned Subordinate Judge came to the conclusion that the excuse for non-deposit  was  not bona fide and  there  was  unexplained delay  to  deposit the rent for the months of  November  and December,  1986 as enjoined by the order of the court,  and, therefore,  under section 15 of the Act, it  was  obligatory for the court to strike off the defence. The High Court  was moved in revision. The High Court dismissed the  application on the 7th July, 1988 in limine. Hence, this appeal.      Section 13 of the Act enjoins making of an  application for  deposit  by a tenant in suits for ejectment.  The  said section provides as follows: " 13. Deposit of rent by tenants in suits for ejectment.  If in  a  suit for recovery of possession of any  building  the tenant  contests the suit, as regards claim  for  ejectment, the  landlord  may make an application at any stage  of  the suit for order on the tenant to deposit month by month  rent at a rate at which it was last paid and also the arrears  of rent, if any, and the Court, after giving an opportunity  to the parties to be heard, may make order for deposit of  rent at  such  rate as may be determined month by month  and  the arrears  of  rent, if any, and on failure of the  tenant  to deposit the arrears of rent within fifteen days of the  date of  the order or the rent at such rate for any month in  the fifteenth day of the next following months, the Court  shall order the defence against ejectment to be struck out and the tenant  to be placed in the same position as if he  had  not defended the claim to ejectment. The landlord may also apply for   permission  to  withdraw  the  deposit  rent   without

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prejudice to his right to claim decree for ejectment and the Court  may permit him to do so. The Court may further  order recovery of cost of suit and such other compensation as  may be determined by it from the tenant."                                                   PG NO 413      In  case an order of a deposit is made, the  court  may pass  an  order  to deposit the rent on  a  particular  date and/or  on  15th day of the following month and  if  such  a deposit  is not made then the court shall order the  defence against  the  ejectment to be struck out and the  tenant  be placed in the same position as he had not defended the claim for  ejectment. The question is if the deposit is not  made, the  provision of the section mandates the court  to  strike out  the  defence. The question, therefore,  arises  whether there is any discretion for the court in case the deposit is not  made within the stipulated time. Indisputably, in  this case the deposit had not been made. The section is clear  in its  terms. The Act, as the preamble states, is  inter  alia ‘to  prevent unreasonable eviction of  tenants’.  Therefore, though it is for protection of tenants, the Act is  enjoined to  regulate the rights and the duties of the landlords  and the  tenants.  In the facts of this case, as  found  by  the court,  there  was failure to deposit the  rent  within  the stipulated  time. The actual problem in the instant case  is whether in a case of a genuine mistake, which, we must hold- -there was in this case--does the court have jurisdiction to extend  the time and treat the deposit subsequently made  as properly made?      In  Ganesh Prasad Sah Kesari & Anr. v. Lakshmi  Narayan Gupta, [1985] 3 S.C.R. 825 this Court was concerned with the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 and  Section 11A thereof as it stood at the  relevant  time. The said section, like the present section 13, enjoins  that ‘the  court shall order the defence against ejectment to  be struck out and the tenant be placed in the same position  as if  he had not defended the claim to ejectment’. This  Court held that failure to comply with an earlier direction should not  necessarily visit the tenant with the  consequences  of his  defence being struck off because there might be  myriad situations  in  which  default may be  commited.  The  Court should,  therefore, adopt such a construction as  would  not render the court powerless in a situation in which the  ends of justice demand relief being granted. It was found in that case  that  the  tenant had deposited all  arrears  of  rent though there were some irregularities in making the deposit, but it was not of such a nature as to visit the tenant  with the  consequence of striking off his defence. In that  case, it  was held that the defence should not be struck  off  and the  Court should also not consider the word ‘shall’ in  the context of the section as mandatory but directory.      In  the cue of Mrs. Manju Choudhary and Anr.  v.  Dulal Kumar  Chandra, [1988] 1 SCC 363 it was held that  if  there was ‘unexplained delay then the court is bound to strike off the defence. There was observation that there is a duty cast                                                   PG NO 414 on  the court to strike off the defence if there is  failure to  deposit the rent in terms of the order of section 13  of the  Act. The said observations would apply to the facts  of this  case  and,  therefore, the court must  from  a  proper perspective judge the question whether the delay or  failure to  deposit the rent in terms of order under section  13  of the  Act has been properly explained and if that  delay  has been properly explained, then the court has a discretion  to excuse  the  delay, but if the delay has not  been  properly explained then the court has no discretion. In our  opinion,

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such  a construction would be a harmonious rendering of  the language  of  section 13 to the claim for  justice  in  each particular  case.  Therefore,  the  court  should   consider whether  the delay has been reasonably explained or not.  In construing  that  question the court in the  scheme  of  the administration  of  justice  must take  a  constructive  and purposeoriented  approach. If it does, then the  element  of discretion  comes  into  play  though not  in  the  form  of directory or mandatory provision but in considering  whether the  delay  was properly explained or not. In the  facts  of this case. we find that there is good deal of  justification for  the delay and the delay has been properly explained  in the  background  of the facts and the circumstances  of  the case. If that is the position, the court should consider the question  in that light. The trial court did not look at  it from  that  perspective. The court, therfore,  committed  an error resulting in miscarriage of justice. The High Court in not  interfering  with  this  miscarriage  of  justice   too committed an error of jurisdiction.      In  this  connection,  reference may  be  made  to  the observations  of this Court in M/s B.P.Khemka Pvt.  Ltd.  v. Birendra  Kumar Bhowmick and Anr., [I971] 2 SCC 407.  There, the  court was concerned With the default in  payment  under the West Bengal Premises Tenancy Act, 1956 (as introduced by Ordinance  6 of 1967).There, the court had to  consider  the expresion  ‘shall’ in section 17(3) of the West Bengal  Act. It was held that the court’s power was discretionary and  in that  case the High Court was of the opinion that the  delay of two months in payment of rent being of technical  nature, the  court should have exercised discretion and  refused  to strike  off the defence. It was the view of the  court  that the  words  ‘shall  order the defence  against  delivery  of possession  to be struck out’ occuring in section  17(3)  of the  West  Bengal  Act have to  be  construed  as  directory provision  and not mandatory provision as the  word  ‘shall’ should  b. read as ‘may’. The court expressed the view  that such  a  construction was warranted  because  otherwise  the intendment  of  the  Iegislation as judged  from  the  whole scheme  in the preamble would be defeated and the  class  of                                                   PG NO 415 tenants for whom the beneficial provisions were made by  the Ordinance in question in that case and the amending Act will stand  deprived of them. This Court observed that the  court is vested with the discretion either to order the defence to be  struck out or not, depending upon the  circumstances  of the case in the interest of justice. There, the Court  found that the delay was technical in nature.      Therefore,  the  interest  of  justice  which  is   the paramount  justification  of the administration  of  justice with the purpose of the Act, compels us to hold that if  the delay  is explained then there is no delay and the court  in such a case cannot strike off the defence. If, on the  other hand,  the delay is not explained or the explanation is  one which  is not acceptable to the court, then the  court  must strike  out the defence and there is no discretion. Read  in that  light, in our opinion, the learned trial judge of  the High   Court   committed   an  error   in   exercising   his jurisdiction.  The  orders of the High Court and  the  Trial Court  are  set  aside.  The defence  of  the  appellant  is restored since all the rents have been deposited. In view of the  delay  due to interruption in the  prosecution  of  the case, it is desirable, if possible, to dispose of the  trial within  six months from today, particularly since  the  case has  been  pending  since 1975. The  appeal  is,  therefore, disposed of accordingly. In the facts and the  circumstances

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of  the case and the conduct of the appellant in  taking  an incorrect  defence  leading to subsequent  proceedings,  the appellant is directed to pay all costs of this appeal  which are assessed as Rs. 1,500.   R.S.S.                                 Appeal disposed of.