PETITIONER: GOPAL CHANDRA GHOSH Vs. RESPONDENT: RENU BALA MAJUMDAR DATE OF JUDGMENT12/01/1994 BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) JEEVAN REDDY, B.P. (J) CITATION: 1994 SCR (1) 108 1994 SCC (2) 258 JT 1994 (1) 80 1994 SCALE (1)63 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
HANSARIA, J.- The appellant has come to be evicted from the
premises (a shop room) on his failure to deposit rent for
November 1984 within December 15, 1984, which is held to
have incurred the wrath of Section 17 of West Bengal
Premises Tenancy Act, 1956 (hereinafter called ‘the Act’).
There is no dispute that the rent was deposited on December
17, 1984. There was thus, if at all, delay of two days.
This would even be not so, if notice is taken of the fact
that 16th was a Sunday, which shows that 15th was a
Saturday. If it would have been a half-working day,
Explanation to Section 4 of the Limitation Act would have
taken care of 15th as well, in which case there would have
been no delay at all.
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2. Let it be seen whether the provision of Section 17 is
really so harsh as to deny benefit of a beneficent statute
like the Act at hand, even if there was delay of two days in
depositing the rent.
3. The eviction order came to be passed on a suit filed by
the respondents sometime in 1980 in which eviction was
prayed on three grounds :
(a) Bona fide requirement of the premises;
(b) sub-letting of the premises by the
appellant; and
(c) default in paying rent from the month of
November 1979 onwards.
4. The trial court as well as the first appellate court
did not accept the case of the respondents insofar as first
two grounds are concerned. As to the third, there is no
finding of default as averred. What, however, happened was
that the appellant failed to deposit rent for the month of
November 1984 within the time visualised by Section 17(1) of
the Act, which ultimately led to the passing of the order of
eviction against him. As already stated this came to happen
because it has been held by the courts below that that is
the mandate of Section 17 of the Act.
5. For understanding the contentions advanced by the
learned counsel of the parties, it would be necessary to
note Section 17 in its entirety, which at the relevant time
read as below :
“17. When a tenant can get the benefit of
protection against eviction.- (1) On a suit or
proceeding being instituted by the landlord on
any of the grounds referred to in Section 13,
the tenant shall, subject to the provisions of
sub-section (2) within one month of the
service of the writ of summons on him, or
where he appears in the suit or proceeding
without the writ of summons being served on
him, within one month of his appearance
deposit in Court or with the Controller or pay
to the landlord an amount calculated at the
rate of rent at which it was last paid, for
the period for which the tenant may have made
default including the period subsequent
thereto up to the end of the month previous to
that in which the deposit or payment is made
together with interest on such amount
calculated at the rate of eight and one-third
per cent per annum from the date when any such
amount was payable up to the date of deposit,
and shall thereafter continue to deposit or
pay, month by month, by the 15th of each
succeeding month a sum equivalent to the rent
at that rate.” (emphasis supplied)
(2)If in any suit or proceeding referred to
in sub-section (1) there is any dispute as to
the amount of rent payable by the tenant, the
tenant shall, within the time specified in
sub-section (1), deposit in court the amount
admitted by him to be due from him together
with an application to the court for
determination of the rent payable. No such
deposit shall be accepted unless it is
accompanied by an application for
determination of the rent payable. On receipt
of such application, the court shall-
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(a)having regard to the rate at which rent
was last paid, and the period for which
default may have been made, by the tenant,
make, as soon as possible within a period not
exceeding one year, a preliminary order,
pending final decision of the dispute,
specifying the amount, if any, due from the
tenant and thereupon the tenant shall, within
one month of the date of such preliminary
order, deposit in court or pay to the landlord
the amount so specified in the preliminary
order; and
(b)having regard to the provisions of this
Act, make, as soon after the preliminary order
as possible, a final order determining the
rate of rent and the amount to be deposited in
court or paid to the landlord and either
fixing the time within which the amount shall
be deposited or paid or, as the case may be,
directing that the amount already deposited or
paid be adjusted in such manner and within
such time as may be specified in the order.
(2-A) Notwithstanding anything contained in
sub-section (1) or subsection (2), on the
application of the tenant, the Court may, by
order,-
(a) extend the time specified in sub-section
(1) or sub-section (2)for the deposit or
payment of any amount referred to therein;
(b) having regard to the circumstance of the
tenant as also of the landlord and the total
sum inclusive of interest required to be
deposited or paid under sub-section (1) on
account of default in the payment of rent,
permit the tenant to deposit or pay such sum
in such instalments and by such dates as the
Court may fix :
Provided that where payment is permitted by
instalments such sum shall include all amounts
calculated at the rate of rent for the period
of default including the period subsequent
thereto up to the end of the month previous to
that in which the order under this sub-section
is to be made with interest on any such amount
calculated at the rate specified in sub-
section (1) from the date when such amount was
payable up to the date of such order.
(2-B) No application for extension of time for
the deposit or payment of any amount under
clause (a) of sub-section (2-A) shall be
entertained unless it is made before the
expiry of the time specified therefor in sub-
section (1) or sub-section (2), and no
application for permission to pay in
instalment under clause (b) of sub-section (2-
A) shall be entertained unless it is made
before the expiry of the time specified in
sub-section (1) for the deposit or payment of
the amount due on account of default in the
payment of rent.
(3)If a tenant fails to deposit or pay any
amount referred to in subsection (1) or sub-
section (2) within the time specified therein
or within such extended time as may be allowed
under clause (a) of sub-section (2-A), or
fails to deposit or pay any instalment
permitted under clause (b) of sub-section
(2-A) within the time fixed therefor, the
Court shall
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order the defence against delivery of
possession to be struck out and shall proceed
with the hearing of the suit.
(4) If a tenant makes deposit or payment as
required by sub-section(1)or sub-section
(2) or sub-section (2-A) no decree or order
for delivery of possession of the premises to
the landlord on the ground of default in
payment of rent by the tenant shall be made by
the Court but the Court may allow such costs
as it may deem fit to the landlord :
Provided that a tenant shall not be entitled
to any relief under this sub-section if,
having obtained such relief once in respect of
the premises, he has again made default in the
payment of rent for four months within a
period of twelve months.”
6. Shri Ghosh, learned counsel for the appellant, submits,
on the strength of decision of this Court in B.P. Khemka
Pvt. Ltd. v. Birendra Kumar Bhowmick1 that the failure, if
any, of the appellant was technical and not real; and so,
the same should be regarded as inconsequential in nature.
In Khemka case’ this Court was called upon to decide as to
whether sub-section (3) of Section 17 of the Act was
mandatory in nature or directory. After referring to
Govindlal Chhaganlal Patel v. Agricultural Produce Market
Committee2 and Ganesh Prasad Sah Kesari v. Lakshmi Narayan
Gupta3 in the latter case the provision being similar to
Section 17(3) of the Act it was held in paragraph 14 that
the word ‘shall’ in above said sub-section has to be read as
‘may’.
7. Shri Ghosh has also placed reliance on Shyamcharan
Sharma v. DharamdaS4 in which, while considering the import
of sub-sections (1), (5) and (6) of Section 13 of the Madhya
Pradesh Accommodation (Control) Act, which are in pari
materia with sub-sections (1), (3) and (4) of Section 17 of
the Act, it was held that court has power under sub-section
(6) to condone delay in deposit of rent having become due
after institution of suit for eviction. Learned counsel
calls in aid Ved Prakash Wadhwa v. Vishwa Mohan5 too in
which case this Court dealt with “rather trifling question”
noted in paragraph 4 which was that the date of deposit of
the rent could not be taken to be the date on which challan
was passed but only the date on which the actual money was
put into the treasury. The Bench after noting two earlier
decisions stated that these decisions had laid down the law
that when money is tendered before the Court and thereupon
challan is passed by the ministerial officers, whereafter
the money is deposited in treasury with the challan, the
deposit relates back to the date on which the tender was
made or the challan presented.
8. Shri Ghosh has referred to the decision in Ved Prakash
case5 because the challan in the present case was passed on
December 11, 1984 and as
1 (1987) 2 SCC 407
2 (1975) 2 SCC 482: (1976) 1 SCR 451
3 (1985) 3 SCC 53
4 (1980) 2 SCC 151
5 (1981) 3 SCC 667
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such, within 15 days of November 30, 1984, which would
satisfy even the letter of law. As to this facet of the
case, we may, however say that this Court took the aforesaid
view because it was noted that before challan was passed
money was required to be tendered. There is nothing before
us to satisfy whether in the present case too the money was
required to be tendered before challan was passed. We
would, therefore, hold that Ved Prakash case5 does not
assist the appellant.
9. Shri Ganguli appearing for the respondents has
strenuously contended that the present case is not covered
by sub-section (3) but attracts sub-section (4) of Section
17 whose requirement is not satisfied as the appellant had
admittedly not deposited the rent as required by sub-section
(1). According to the teamed counsel the case at hand is
nearer to J.L. Varandani v. Asha Lata Mukherjee6 in which
relief under sub-section (4) of the Act was denied to a
tenant who had not made deposit as required by sub-section
(1) read with sub-section (2-A). Shri Ganguly urges that in
case of failure of a tenant to deposit the monthly rent as
required by the concluding part of sub-section (1), the only
relief he can claim under Section 17 of the Act is to apply
to the Court to extend the time specified for deposit by
sub-section (1) as permitted by sub-section (2-A) and, if
this would not be done, the Court would have no choice but
to order for eviction. The aforesaid follows, according to
Shri Ganguly, from what was held by this Court in Varandani
case6.
10.We are not persuaded to accept the aforesaid
submission, as in Varandani case6 the main plea of the
tenant was that as despite non-deposit of rent within the
time allowed no order for striking off the defence had been
passed, it should be presumed that the delay in payment of
rent was condoned or deemed to have been condoned, because
of which no decree for eviction could be passed. The facts
of the instant case are different inasmuch as Varandani
case6 was concerned with arrear rent, as by Order No. 26
dated March 23, 1977 of which reference has been made in
paragraph 1 as well as in the ultimate paragraph, the
appellant had been asked to deposit arrears at specified
rate, whereas in the case at hand it is post-institution
rent with which we are concerned. Further, the plea of
presumed condonation of delay advanced in Varandani6 is not
relevant for the case at hand because non-striking off the
defence, on which ground the plea was advanced is governed
by sub-section (3), which in Khemka case’ has been held to
be directory.
11.Shri Ghosh has a point when he contends that if the
power relating to striking off defence be directory, the
power to order eviction has proprio vigore to be so inasmuch
as the order of eviction has greater lethality than an order
striking off defence.
12.Being seized with a beneficial piece of enactment, we
have to take a view which would advance the object and
purpose of the Act, which apparently is to give protection
to a tenant and not to allow the law to permit throwing out
of a tenant merely because of some technical violation of
the
6 (1990) 4 SCC 40
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statute. That this is the approach which has to be adopted
would be clear from Union of India v. Philip Tiago De Gama
of Vedem Vasco De Gama7 in paragraphs 16 and 17 of which it
was stated that text of a statute is not to be construed
merely as a piece of prose without reference to its nature
or purpose; and that if the strict grammatical
interpretation were to give rise to absurdity or
inconsistency, the Court would discard such interpretation
and adopt one which will give effect to the purpose of the
legislature. The purpose insofar as the Act at hand is
concerned is, as already noted, to give protection to a
tenant. While construing such a statute, the substance of
the matter has to be seen, and not merely the form.
Technicalities would have no place when the court is seized
with a human problem, as is the one at hand, relatable as it
is to the earning of livelihood by the appellant by carrying
on business in the shop premises. In such a case it is the
heart of the matter which counts, and not the facade of it.
13. As Shri Ganguli has strongly urged that the requirement
of sub- section (1) relating to deposit of rent falling due
after institution of the rent having not been satisfied, it
was almost incumbent on the Court to pass an order of
eviction, let it be seen whether the case at hand really
attracts sub-section (4) or sub-section (3) as is the
contention of Shri Ghosh. As sub-section (4) deals with the
situation which arises on a tenant making deposit or payment
as required inter alia by sub-section (1), whereas sub-
section (3)is concerned with failure to deposit or pay any
amount referred in sub- section (1), we are of the view that
it is really sub-section (3) which would get attracted in
the instant case it being one of non-deposit as required by
sub-section (1). Acceptance of contention of Shri Ganguli
would amount to conceding a situation converse to the one
mentioned in sub-section (4) as a part of legislative
mandate. Logic does not permit us to so hold, as though all
men are said to be animals, the converse of it that all
animals can be said to be men does not follow.
14. To buttress his submission, Shri Ganguli has, however,
submitted that where ejectment is prayed only on the ground
of default, it is sub-section (4) alone which would operate,
other grounds of eviction would be covered by sub-section
(3). We find no such sequitur, because sub-section (1)
refers to suit or proceedings instituted by the landlord on
any of the grounds referred to in Section 13, reference to
which shows that default in payment of rent is one of the
grounds. So operation of sub-section (3) cannot be confined
to cases other than those of default in payment of rent, as
that sub-section opens by referring to the question of
failure to deposit rent, which question can arise only if
the tenant be a defaulter.
15. We, therefore, hold that the present case was covered
by sub-section (3) which was held to be directory in Khemka
case’. This would be more so while deciding whether to
order for eviction. The courts below were, therefore, under
no obligation to order for eviction merely because of two
days delay in deposit of rent by the appellant. This is not
all. Sub-section (3)
7 (1990) 1 SCC 277
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permits striking off the defence and requires proceeding
with the hearing of the suit. So, merely because defence is
struck off, order of eviction will not follow automatically;
the landlord shall have to prove dehors the defence of the
tenant, that a case for eviction has been made out. This
aspect of the matter completely missed the courts below. We
do not agree with Shri Ganguli that nothing would be
required to be proved by a landlord in a case based on
allegation of default. According to us, the plea of default
shall have to be established as any other plea is required
by law.
16.Thus, not only Khemka case’ but Shyamcharan Sharma
case4 also helps the appellant and according to us, it was a
fit case where two days delay in depositing the rent for the
month of November 1984 ought to have been condoned. The
failure not to do so has resulted in failure of justice.
This apart, the respondents not having established their
case of default in paying rent from November 1979 onwards,
on which plea eviction was prayed for when the suit was
filed, the decree of eviction could not have been legally
passed.
17.In the aforesaid view of the matter, we allow the
appeal by setting aside the impugned decree of eviction. In
the facts and circumstances of the case, we make no order as
to costs.
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