{"id":166451,"date":"1994-01-12T00:00:00","date_gmt":"1994-01-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gopal-chandra-ghosh-vs-renu-bala-majumdar-on-12-january-1994"},"modified":"2015-10-25T15:21:25","modified_gmt":"2015-10-25T09:51:25","slug":"gopal-chandra-ghosh-vs-renu-bala-majumdar-on-12-january-1994","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gopal-chandra-ghosh-vs-renu-bala-majumdar-on-12-january-1994","title":{"rendered":"Gopal Chandra Ghosh vs Renu Bala Majumdar on 12 January, 1994"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gopal Chandra Ghosh vs Renu Bala Majumdar on 12 January, 1994<\/div>\n
Equivalent citations: 1994 SCR (1) 108, \t 1994 SCC (2) 258<\/div>\n
Author: H B.L.<\/div>\n
Bench: Hansaria B.L. (J)<\/div>\n
           PETITIONER:\nGOPAL CHANDRA GHOSH\n\n\tVs.\n\nRESPONDENT:\nRENU BALA MAJUMDAR\n\nDATE OF JUDGMENT12\/01\/1994\n\nBENCH:\nHANSARIA B.L. (J)\nBENCH:\nHANSARIA B.L. (J)\nJEEVAN REDDY, B.P. (J)\n\nCITATION:\n 1994 SCR  (1) 108\t  1994 SCC  (2) 258\n JT 1994 (1)\t80\t  1994 SCALE  (1)63\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
The Judgment of the Court was delivered by
\nHANSARIA, J.- The appellant has come to be evicted from\t the
\npremises  (a shop room) on his failure to deposit  rent\t for
\nNovember  1984\twithin December 15, 1984, which is  held  to
\nhave  incurred\tthe  wrath  of Section\t17  of\tWest  Bengal
\nPremises  Tenancy Act, 1956 (hereinafter called ‘the  Act’).
\nThere is no dispute that the rent was deposited on  December
\n17,  1984.   There was thus, if at all, delay of  two  days.
\nThis  would even be not so, if notice is taken of  the\tfact
\nthat  16th  was\t a  Sunday, which  shows  that\t15th  was  a
\nSaturday.   If\tit  would  have\t been  a  half-working\tday,
\nExplanation  to Section 4 of the Limitation Act\t would\thave
\ntaken  care of 15th as well, in which case there would\thave
\nbeen no delay at all.\n<\/p>\n
261<\/span><\/p>\n
2.   Let  it be seen whether the provision of Section 17  is
\nreally\tso harsh as to deny benefit of a beneficent  statute
\nlike the Act at hand, even if there was delay of two days in
\ndepositing the rent.\n<\/p>\n
3.   The eviction order came to be passed on a suit filed by
\nthe  respondents  sometime  in 1980 in\twhich  eviction\t was
\nprayed on three grounds :\n<\/p>\n
\t      (a)   Bona fide requirement of the premises;\n<\/p><\/blockquote>\n
\t      (b)   sub-letting\t of  the  premises  by\t the
\n\t      appellant; and\n<\/p><\/blockquote>\n
\t      (c)   default in paying rent from the month of
\n\t      November 1979 onwards.\n<\/p><\/blockquote>\n
4.   The  trial court as well as the first  appellate  court
\ndid not accept the case of the respondents insofar as  first
\ntwo  grounds  are concerned.  As to the third, there  is  no
\nfinding of default as averred.\tWhat, however, happened\t was
\nthat  the appellant failed to deposit rent for the month  of
\nNovember 1984 within the time visualised by Section 17(1) of
\nthe Act, which ultimately led to the passing of the order of
\neviction against him.  As already stated this came to happen
\nbecause\t it has been held by the courts below that  that  is
\nthe mandate of Section 17 of the Act.\n<\/p>\n
5.   For  understanding\t the  contentions  advanced  by\t the
\nlearned\t counsel  of the parties, it would be  necessary  to
\nnote Section 17 in its entirety, which at the relevant\ttime
\nread as below :\n<\/p>\n
\t      “17.   When  a tenant can get the\t benefit  of
\n\t      protection against eviction.- (1) On a suit or
\n\t      proceeding being instituted by the landlord on
\n\t      any of the grounds referred to in Section\t 13,
\n\t      the tenant shall, subject to the provisions of
\n\t      sub-section  (2)\twithin\tone  month  of\t the
\n\t      service  of  the writ of summons\ton  him,  or
\n\t      where  he\t appears in the suit  or  proceeding
\n\t      without  the writ of summons being  served  on
\n\t      him,  within  one\t month\tof  his\t  appearance
\n\t      deposit in Court or with the Controller or pay
\n\t      to  the landlord an amount calculated  at\t the
\n\t      rate  of rent at which it was last  paid,\t for
\n\t      the period for which the tenant may have\tmade
\n\t      default\tincluding  the\t period\t  subsequent
\n\t      thereto up to the end of the month previous to
\n\t      that  in which the deposit or payment is\tmade
\n\t      together\t with\tinterest  on   such   amount
\n\t      calculated at the rate of eight and  one-third
\n\t      per cent per annum from the date when any such
\n\t      amount was payable up to the date of  deposit,
\n\t      and  shall thereafter continue to\t deposit  or
\n\t      pay,  month  by  month, by the  15th  of\teach
\n\t      succeeding month a sum equivalent to the\trent
\n\t      at that rate.” (emphasis supplied)
\n\t      (2)If in any suit or proceeding referred to
\n\t      in sub-section (1) there is any dispute as  to
\n\t      the amount of rent payable by the tenant,\t the
\n\t      tenant  shall,  within the time  specified  in
\n\t      sub-section  (1), deposit in court the  amount
\n\t      admitted\tby him to be due from  him  together
\n\t      with   an\t  application  to  the\t court\t for
\n\t      determination  of the rent payable.   No\tsuch
\n\t      deposit\tshall  be  accepted  unless  it\t  is
\n\t      accompanied    by\t   an\t application\t for
\n\t      determination of the rent payable.  On receipt
\n\t      of such application, the court shall-\n<\/p><\/blockquote>\n
\t      262<\/span><\/p>\n
\t      (a)having regard to the rate at which  rent
\n\t      was  last\t paid,\tand  the  period  for  which
\n\t      default  may  have been made, by\tthe  tenant,
\n\t      make, as soon as possible within a period\t not
\n\t      exceeding\t one  year,  a\tpreliminary   order,
\n\t      pending\tfinal  decision\t of   the   dispute,
\n\t      specifying  the amount, if any, due  from\t the
\n\t      tenant and thereupon the tenant shall,  within
\n\t      one  month  of the date  of  such\t preliminary
\n\t      order, deposit in court or pay to the landlord
\n\t      the  amount  so specified in  the\t preliminary
\n\t      order; and\n<\/p><\/blockquote>\n
\t      (b)having regard to the provisions of  this
\n\t      Act, make, as soon after the preliminary order
\n\t      as  possible,  a final order  determining\t the
\n\t      rate of rent and the amount to be deposited in
\n\t      court  or\t paid  to the  landlord\t and  either
\n\t      fixing the time within which the amount  shall
\n\t      be  deposited or paid or, as the case may\t be,
\n\t      directing that the amount already deposited or
\n\t      paid  be\tadjusted in such manner\t and  within
\n\t      such time as may be specified in the order.
\n\t      (2-A)  Notwithstanding  anything contained  in
\n\t      sub-section  (1)\tor subsection  (2),  on\t the
\n\t      application  of the tenant, the Court may,  by
\n\t      order,-\n<\/p><\/blockquote>\n
\t      (a)   extend the time specified in sub-section
\n\t      (1)  or  sub-section  (2)for  the\t deposit  or
\n\t      payment of any amount referred to therein;\n<\/p><\/blockquote>\n
\t      (b)   having regard to the circumstance of the
\n\t      tenant  as also of the landlord and the  total
\n\t      sum  inclusive  of  interest  required  to  be
\n\t      deposited\t or  paid under sub-section  (1)  on
\n\t      account  of  default in the payment  of  rent,
\n\t      permit  the tenant to deposit or pay such\t sum
\n\t      in  such instalments and by such dates as\t the
\n\t      Court may fix :\n<\/p><\/blockquote>\n
\t      Provided\tthat where payment is  permitted  by
\n\t      instalments such sum shall include all amounts
\n\t      calculated at the rate of rent for the  period
\n\t      of  default  including the  period  subsequent
\n\t      thereto up to the end of the month previous to
\n\t      that in which the order under this sub-section
\n\t      is to be made with interest on any such amount
\n\t      calculated  at  the  rate\t specified  in\tsub-
\n\t      section (1) from the date when such amount was
\n\t      payable up to the date of such order.
\n\t      (2-B) No application for extension of time for
\n\t      the  deposit  or payment of any  amount  under
\n\t      clause  (a)  of  sub-section  (2-A)  shall  be
\n\t      entertained  unless  it  is  made\t before\t the
\n\t      expiry of the time specified therefor in\tsub-
\n\t      section\t(1)  or\t sub-section  (2),  and\t  no
\n\t      application   for\t  permission   to   pay\t  in
\n\t      instalment under clause (b) of sub-section (2-
\n\t      A)  shall\t be entertained unless\tit  is\tmade
\n\t      before  the  expiry of the time  specified  in
\n\t      sub-section (1) for the deposit or payment  of
\n\t      the  amount due on account of default  in\t the
\n\t      payment of rent.\n<\/p><\/blockquote>\n
\t      (3)If a tenant fails to deposit or pay  any
\n\t      amount  referred to in subsection (1) or\tsub-
\n\t      section (2) within the time specified  therein
\n\t      or within such extended time as may be allowed
\n\t      under  clause  (a) of  sub-section  (2-A),  or
\n\t      fails   to  deposit  or  pay  any\t  instalment
\n\t      permitted under clause (b)     of\t sub-section
\n\t      (2-A)  within  the time  fixed  therefor,\t the
\n\t      Court shall
\n\t      263<\/span>
\n\t      order   the   defence  against   delivery\t  of
\n\t      possession to be struck out and shall  proceed
\n\t      with the hearing of the suit.\n<\/p><\/blockquote>\n
\t      (4)   If a tenant makes deposit or payment  as
\n\t      required by sub-section(1)or  sub-section
\n\t      (2)  or sub-section (2-A) no decree  or  order
\n\t      for delivery of possession of the premises  to
\n\t      the  landlord  on\t the ground  of\t default  in
\n\t      payment of rent by the tenant shall be made by
\n\t      the  Court but the Court may allow such  costs
\n\t      as it may deem fit to the landlord :
\n\t      Provided\tthat a tenant shall not be  entitled
\n\t      to  any  relief  under  this  sub-section\t if,
\n\t      having obtained such relief once in respect of
\n\t      the premises, he has again made default in the
\n\t      payment  of  rent\t for four  months  within  a
\n\t      period of twelve months.”\n<\/p><\/blockquote>\n
6.   Shri Ghosh, learned counsel for the appellant, submits,
\non  the\t strength of decision of this Court in\tB.P.  Khemka
\nPvt.  Ltd. v. Birendra Kumar Bhowmick1<\/a> that the failure,  if
\nany,  of the appellant was technical and not real;  and\t so,
\nthe  same should be regarded as inconsequential\t in  nature.
\nIn  Khemka case’ this Court was called upon to decide as  to
\nwhether\t sub-section  (3)  of  Section 17  of  the  Act\t was
\nmandatory  in  nature  or  directory.\tAfter  referring  to
\nGovindlal  Chhaganlal Patel v. Agricultural  Produce  Market
\nCommittee2  and Ganesh Prasad Sah Kesari v. Lakshmi  Narayan
\nGupta3\tin  the latter case the provision being\t similar  to
\nSection\t 17(3) of the Act  it was held in paragraph 14\tthat
\nthe word ‘shall’ in above said sub-section has to be read as
\n‘may’.\n<\/p>\n
7.   Shri  Ghosh  has also placed  reliance  on\t Shyamcharan
\nSharma v. DharamdaS4 in which, while considering the  import
\nof sub-sections (1), (5) and (6) of Section 13 of the Madhya
\nPradesh\t Accommodation\t(Control)  Act, which  are  in\tpari
\nmateria with sub-sections (1), (3) and (4) of Section 17  of
\nthe Act, it was held that court has power under\t sub-section
\n(6)  to condone delay in deposit of rent having\t become\t due
\nafter  institution  of suit for eviction.   Learned  counsel
\ncalls  in  aid Ved Prakash Wadhwa v. Vishwa  Mohan5<\/a>  too  in
\nwhich case this Court dealt with “rather trifling  question”
\nnoted  in paragraph 4 which was that the date of deposit  of
\nthe rent could not be taken to be the date on which  challan
\nwas  passed but only the date on which the actual money\t was
\nput  into the treasury.\t The Bench after noting two  earlier
\ndecisions stated that these decisions had laid down the\t law
\nthat  when money is tendered before the Court and  thereupon
\nchallan\t is passed by the ministerial  officers,  whereafter
\nthe  money  is deposited in treasury with the  challan,\t the
\ndeposit\t relates  back to the date on which the\t tender\t was
\nmade or the challan presented.\n<\/p>\n
8.   Shri Ghosh has referred to the decision in Ved  Prakash
\ncase5 because the challan in the present case was passed  on
\nDecember 11, 1984 and as
\n1    (1987) 2 SCC 407
\n2    (1975) 2 SCC 482: (1976) 1 SCR 451
\n3    (1985) 3 SCC 53
\n4    (1980) 2 SCC 151
\n5  (1981) 3 SCC 667
\n264<\/span>
\nsuch,  within  15  days of November 30,\t 1984,\twhich  would
\nsatisfy\t even  the letter of law.  As to this facet  of\t the
\ncase, we may, however say that this Court took the aforesaid
\nview  because  it was noted that before challan\t was  passed
\nmoney was required to be tendered.  There is nothing  before
\nus to satisfy whether in the present case too the money\t was
\nrequired  to  be  tendered before challan  was\tpassed.\t  We
\nwould,\ttherefore,  hold  that Ved Prakash  case5  does\t not
\nassist the appellant.\n<\/p>\n
9.   Shri   Ganguli  appearing\tfor  the   respondents\t has
\nstrenuously  contended that the present case is not  covered
\nby  sub-section (3) but attracts sub-section (4) of  Section
\n17  whose requirement is not satisfied as the appellant\t had
\nadmittedly not deposited the rent as required by sub-section
\n(1).   According to the teamed counsel the case at  hand  is
\nnearer\tto J.L. Varandani v. Asha Lata Mukherjee6  in  which
\nrelief\tunder  sub-section (4) of the Act was  denied  to  a
\ntenant\twho had not made deposit as required by\t sub-section
\n(1) read with sub-section (2-A).  Shri Ganguly urges that in
\ncase  of failure of a tenant to deposit the monthly rent  as
\nrequired by the concluding part of sub-section (1), the only
\nrelief he can claim under Section 17 of the Act is to  apply
\nto  the\t Court to extend the time specified for\t deposit  by
\nsub-section  (1) as permitted by sub-section (2-A)  and,  if
\nthis  would not be done, the Court would have no choice\t but
\nto order for eviction.\tThe aforesaid follows, according  to
\nShri Ganguly, from what was held by this Court in  Varandani
\ncase6.\n<\/p>\n
10.We\tare   not  persuaded  to  accept   the\t aforesaid
\nsubmission,  as\t in  Varandani case6 the main  plea  of\t the
\ntenant\twas that as despite non-deposit of rent\t within\t the
\ntime allowed no order for striking off the defence had\tbeen
\npassed,\t it should be presumed that the delay in payment  of
\nrent  was condoned or deemed to have been condoned,  because
\nof which no decree for eviction could be passed.  The  facts
\nof  the\t instant case are different  inasmuch  as  Varandani
\ncase6  was  concerned with arrear rent, as by Order  No.  26
\ndated  March  23, 1977 of which reference has been  made  in
\nparagraph  1  as  well as in  the  ultimate  paragraph,\t the
\nappellant  had\tbeen asked to deposit arrears  at  specified
\nrate,  whereas\tin the case at hand it\tis  post-institution
\nrent  with  which we are concerned.  Further,  the  plea  of
\npresumed condonation of delay advanced in Varandani6 is\t not
\nrelevant  for the case at hand because non-striking off\t the
\ndefence,  on which ground the plea was advanced is  governed
\nby  sub-section (3), which in Khemka case’ has been held  to
\nbe directory.\n<\/p>\n
11.Shri\t Ghosh\thas a point when he contends that  if  the
\npower  relating\t to striking off defence be  directory,\t the
\npower to order eviction has proprio vigore to be so inasmuch
\nas the order of eviction has greater lethality than an order
\nstriking off defence.\n<\/p>\n
12.Being  seized with a beneficial piece of enactment,\twe
\nhave  to  take\ta view which would advance  the\t object\t and
\npurpose\t of the Act, which apparently is to give  protection
\nto a tenant and not to allow the law to permit throwing\t out
\nof  a tenant merely because of some technical  violation  of
\nthe
\n6 (1990) 4 SCC 40
\n265<\/span>
\nstatute.  That this is the approach which has to be  adopted
\nwould  be clear from Union of India v. Philip Tiago De\tGama
\nof Vedem Vasco De Gama7<\/a> in paragraphs 16 and 17 of which  it
\nwas  stated  that text of a statute is not to  be  construed
\nmerely\tas a piece of prose without reference to its  nature
\nor   purpose;\tand   that   if\t  the\tstrict\t grammatical
\ninterpretation\t were\tto  give  rise\t to   absurdity\t  or
\ninconsistency,\tthe Court would discard such  interpretation
\nand  adopt one which will give effect to the purpose of\t the
\nlegislature.   The  purpose insofar as the Act\tat  hand  is
\nconcerned  is,\tas already noted, to give  protection  to  a
\ntenant.\t  While construing such a statute, the substance  of
\nthe  matter  has  to  be seen,\tand  not  merely  the  form.
\nTechnicalities would have no place when the court is  seized
\nwith a human problem, as is the one at hand, relatable as it
\nis to the earning of livelihood by the appellant by carrying
\non business in the shop premises.  In such a case it is\t the
\nheart of the matter which counts, and not the facade of it.\n<\/p>\n
13. As Shri Ganguli has strongly urged that the\t requirement
\nof sub- section (1) relating to deposit of rent falling\t due
\nafter institution of the rent having not been satisfied,  it
\nwas  almost  incumbent\ton the Court to\t pass  an  order  of
\neviction,  let\tit be seen whether the case at\thand  really
\nattracts  sub-section  (4)  or sub-section  (3)\t as  is\t the
\ncontention of Shri Ghosh. As sub-section (4) deals with\t the
\nsituation which arises on a tenant making deposit or payment
\nas  required  inter alia by sub-section\t (1),  whereas\tsub-
\nsection\t (3)is concerned with failure to deposit or pay\t any
\namount referred in sub- section (1), we are of the view that
\nit  is really sub-section (3) which would get  attracted  in
\nthe instant case  it being one of non-deposit as required by
\nsub-section  (1). Acceptance of contention of  Shri  Ganguli
\nwould  amount to conceding a situation converse to  the\t one
\nmentioned  in  sub-section  (4) as  a  part  of\t legislative
\nmandate. Logic does not permit us to so hold, as though\t all
\nmen  are  said to be animals, the converse of  it  that\t all
\nanimals can be said to be men does not follow.\n<\/p>\n
14.  To buttress his submission, Shri Ganguli has,  however,
\nsubmitted that where ejectment is prayed only on the  ground
\nof default, it is sub-section (4) alone which would operate,
\nother  grounds of eviction would be covered  by\t sub-section
\n(3).  We  find\tno such sequitur,  because  sub-section\t (1)
\nrefers to suit or proceedings instituted by the landlord  on
\nany  of the grounds referred to in Section 13, reference  to
\nwhich  shows that default in payment of rent is one  of\t the
\ngrounds. So operation of sub-section (3) cannot be  confined
\nto cases other than those of default in payment of rent,  as
\nthat  sub-section  opens  by referring to  the\tquestion  of
\nfailure\t to deposit rent, which question can arise  only  if
\nthe tenant be a defaulter.\n<\/p>\n
15.  We,  therefore, hold that the present case was  covered
\nby sub-section (3)  which was held to be directory in Khemka
\ncase’.\t This  would be more so while  deciding\t whether  to
\norder for eviction.  The courts below were, therefore, under
\nno  obligation to order for eviction merely because  of\t two
\ndays delay in deposit of rent by the appellant.\t This is not
\nall.  Sub-section (3)
\n7 (1990) 1 SCC 277
\n266<\/span>
\npermits\t striking  off the defence and\trequires  proceeding
\nwith the hearing of the suit.  So, merely because defence is
\nstruck off, order of eviction will not follow automatically;
\nthe  landlord shall have to prove dehors the defence of\t the
\ntenant,\t that a case for eviction has been made\t out.\tThis
\naspect of the matter completely missed the courts below.  We
\ndo  not\t agree\twith  Shri Ganguli  that  nothing  would  be
\nrequired  to  be  proved by a landlord in a  case  based  on
\nallegation of default.\tAccording to us, the plea of default
\nshall  have to be established as any other plea is  required
\nby law.\n<\/p>\n
16.Thus,  not  only Khemka case’  but  Shyamcharan  Sharma
\ncase4 also helps the appellant and according to us, it was a
\nfit case where two days delay in depositing the rent for the
\nmonth  of  November 1984 ought to have been  condoned.\t The
\nfailure\t not  to do so has resulted in failure\tof  justice.
\nThis  apart,  the respondents not having  established  their
\ncase  of default in paying rent from November 1979  onwards,
\non  which  plea eviction was prayed for when  the  suit\t was
\nfiled,\tthe decree of eviction could not have  been  legally
\npassed.\n<\/p>\n
17.In  the  aforesaid  view of the matter,  we\tallow  the
\nappeal by setting aside the impugned decree of eviction.  In
\nthe facts and circumstances of the case, we make no order as
\nto costs.\n<\/p>\n
268<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gopal Chandra Ghosh vs Renu Bala Majumdar on 12 January, 1994 Equivalent citations: 1994 SCR (1) 108, 1994 SCC (2) 258 Author: H B.L. Bench: Hansaria B.L. (J) 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-166451","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGopal Chandra Ghosh vs Renu Bala Majumdar on 12 January, 1994 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gopal-chandra-ghosh-vs-renu-bala-majumdar-on-12-january-1994\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gopal Chandra Ghosh vs Renu Bala Majumdar on 12 January, 1994 - 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