Supreme Court of India
BIJAY KUMAR SINGH & OTHERSversusAMIT KUMAR CHAMARIYA & ANR.
- Citation
- 2019 INSC 1181
- Decided
- 22 October 2019
- Disposal
- Dismissed
- Bench
- L NAGESWARA RAO
Holding
Section 7(2) of the West Bengal Premises Tenancy Act, 1997 imposes mandatory conditions—deposit of admitted arrears and an application for rent determination—without which eviction cannot be avoided, and the Limitation Act does not apply to extend the time.
Summary
The landlord filed eviction suits under the West Bengal Premises Tenancy Act, 1997 alleging non‑payment of rent arrears for two shops. The tenants filed applications under Section 7(2) of the Act seeking determination of the disputed rent and deposited the arrears they admitted. The trial court allowed the applications, but the Calcutta High Court set aside that order, prompting appeals. The Supreme Court examined the scope of Section 7(2), holding that its provisions are mandatory: the tenant must deposit the admitted arrears and file an application for rent determination within one month of summons or appearance, and the court may extend the time only once and for a maximum of two months. No recourse to Section 5 of the Limitation Act is available to condone delay. Failure to comply triggers eviction under Section 7(3). The Court dismissed the appeals, affirming the High Court’s order.
Issues considered
- The scope and ambit of Section 7(2) of the West Bengal Premises Tenancy Act, 1997
- Whether the provisions of Section 7(2) are mandatory or directory
- Whether the Limitation Act, 1963 can be invoked to extend the time for filing the application under Section 7(2)
- Whether the court has power to extend the time beyond the period prescribed in the proviso to Section 7(2)
Legislation cited
- Bombay Rents, Hotel and Lodging House Rates Control Act, 1947s. 12
- Delhi Rent Control Act, 1958
- Limitation Act, 1963s. 5
- M.P. Accommodation Control Act, 1961
- Rajasthan Premises (Control of Rent and Eviction) Act, 1950s. 13
- West Bengal Premises Tenancy Act, 1956s. 17
- West Bengal Premises Tenancy Act, 1997s. 6, s. 7
Subjects
evictionarrears of rentWest Bengal Premises Tenancy ActSection 7mandatory provisionLimitation Acttime extensionlandlord‑tenant dispute
Judgment
1028 [2019]REPORTS
SUPREME COURT 13 S.C.R. 1028 [2019] 13 S.C.R.
A BIJAY KUMAR SINGH & OTHERS
v.
AMIT KUMAR CHAMARIYA & ANR.
(Civil Appeal No. 7849 of 2019)
B OCTOBER 22, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA]
West Bengal Premises Tenancy Act, 1997:
s.7 – Scope and ambit of – Held: Section 7 provides a complete
C mechanism for avoiding eviction on the ground of non-payment of
arrears of rent – Provisions of sub-section (2) of s.7 are mandatory
– There is an outer limit for extention of time to deposit arrears of
rent in terms of Proviso to sub-section (2) of s.7 – Deposit of admitted
arrears of rent along with an application for determination of
dispute is a pre-condition to avoid eviction on the ground of non-
D
payment of arrears of rent-tenant cannot take recourse to s.5 of
Limitation Act – Limitation Act, 1963 – s.5.
Dismissing the appeals, the Court
HELD: The provisions of sub section (2) of Section 7 of
E West Bengal Premises Tenancy Act, 1997 are mandatory and
required to be scrupulously followed by the tenant, if the tenant
has to avoid the eviction on account of non-payment of arrears of
rent under Section 6 of the Act. There is an outer limit for
extension of time to deposit of arrears of rent in terms of the
proviso to sub section (2) of Section 7 of the Act. The
F consequences flowing from non-deposit of rent are contemplated
under sub section (3) of Section 7 of the Act. Therefore, if the
tenant fails to deposit admitted arrears of rent within one month
of receipt of summons or within one month of appearance without
summons and also fails to make an application for determination
G of the disputed amount of rate of rent and the period of arrears
and the subsequent non-payment on determining of the arrears
of rent, will entail the eviction of the tenant. Section 7 of the Act
provides for a complete mechanism for avoiding eviction on the
ground of arrears of rent, provided that the tenant takes steps as
contemplated under sub section (2) of Section 7 of the Act and
H
1028
BIJAY KUMAR SINGH & OTHERS v. AMIT KUMAR 1029
CHAMARIYA & ANR.
deposits the arrears of rent on determination of the disputed A
amount. The deposit of rent along with an application for
determination of dispute is a pre-condition to avoid eviction on
the ground of non-payment of arrears of rent. In view thereof,
tenant will not be able to take recourse to Section 5 of the
Limitation Act as it is not an application alone which is required
B
to be filed by the tenant but the tenant has to deposit admitted
arrears of rent as well. [Para 21][1042-E-H; 1043-A]
Nasiruddin and Ors. v. Sita Ram Agarwal (2003) 2 SCC
577 : [2003] 1 SCR 634 – relied on.
B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick C
(1987) 2 SCC 407 : [1987] 2 SCR 559 – distinguished.
Shibu Chandra Dhar v. Pasupati Nath Auddya and Gaya
Prasad Kar v. Subrata Kumar Banerjee (2002) 3 SCC
617 : [2002] 2 SCR 249; Arjun Khiamal Makhijani
Etc v. Jamnadas C. Tuliani & Ors. Etc. (1989) 4 SCC D
612 : [1989] 1 Suppl. SCR 380; Monoj Lal Seal v.
Octavious Tea & Industries Ltd (2015) 8 SCC 640 :
[2015] 6 SCR 791; E. Palanisamy v. Palanisamy (2003)
1 SCC 123; Balwant Singh v. Anand Kumar Sharma
(2003) 3 SCC 433 : [2003] 1 SCR 653; Vatan Mal v.
Kailash Nath (1989) 3 SCC 79 : [1989] 2 SCR 192; E
Union of India v. Philip Tiago De Gama (1990) 1 SCC
277 : [1989] 2 Suppl. SCR 336; Shyamcharan Sharma
v. Dharamdas (1980) 2 SCC 151 : [1980] 2 SCR 334;
Union of India and Others v. A. K. Pandey (2009) 10
SCC 552 : [ 2009] 14 SCR 528 – referred to F
Case Law Reference
[1987] 2 SCR 559 distinguished Para 6
[2002] 2 SCR 249 referred to Para 6
[1989] 1 Suppl. SCR 380 referred to Para 7 G
[2003] 1 SCR 634 relied on Para 8
[2015] 6 SCR 791 referred to Para 9
(2003) 1 SCC 123 referred to Para 9
H
1030 SUPREME COURT REPORTS [2019] 13 S.C.R.
A [2003] 1 SCR 653 referred to Para 9
[1989] 2 SCR 192 referred to Para 14
[1989] 2 Suppl. SCR 336 referred to Para 15
[1980] 2 SCR 334 referred to Para 15
B [2009] 14 SCR 528 referred to Para 17
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7849
of 2019.
From the Judgment and Order dated 13.05.2016 of the High
Court at Calcutta in C.O. No. 1942 of 2013.
C
With
Civil Appeal No. 7850 of 2019.
Anip Sachthey, Sr. Adv., Anando Mukherjee, Ms. Anjali Chauhan,
Ms. Ria Sachthey, Mrs. Sarla Chandra, Advs. for the Appellants.
D
Pranab Kumar Mullick, Ms. Soma Mullick, Seba Kumar Deuria,
Advs. for the Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
E
1. The challenge in the present appeals is to an order passed by
the High Court of Calcutta on 13.05.2016 in two separate eviction petitions
filed by the respondent herein against two tenants.
2. Learned Single Judge has set aside the order dated 10.08.2011
whereby an application filed by the appellant under Section 7(2) of the
F
West Bengal Premises Tenancy Act, 19971 was allowed.
3. The brief facts leading to the present appeals are that the
respondent filed an eviction petition against the appellants on the ground
of non-payment of arrears of rent in respect of two shops alleging that
initially, Sudama Singh was tenant on the monthly rent of Rs.45/- and
G Rs.25/- per month but now the rent payable is Rs.306/- and Rs.174/- per
month. It is the case of the respondent that a Receiver was appointed in
Money Execution Case No. 23/1961 and the said Receiver was
discharged vide order dated 10.02.2009. The respondent demanded
arrears of rent but since the amount of arrears at the rate of Rs.306/-
1
H For short the “Act”
BIJAY KUMAR SINGH & OTHERS v. AMIT KUMAR 1031
CHAMARIYA & ANR. [HEMANT GUPTA, J.]
per month was not paid, the petition for eviction was filed. The appellant A
did not deposit any rent but filed an application to determine the arrears
of rent asserting that they have paid monthly rent up to the month of
June 1993 to the Receiver. However, the Receiver has not informed the
appellants as to the person authorised to collect rent, therefore, they
could not pay it.
B
4. The learned Trial Court allowed the application, determined the
arrears of rent and granted time to pay the arrears of rent so determined.
The learned Single Bench set aside the order passed by the Trial Court
as it chose to follow the order passed in CO 1941 of 2013, though another
Coordinate Bench had taken a contrary view in CO 55 of 2014. Learned
Single Judge found that in the order passed by Coordinate Bench in CO C
55/2014, no lis was decided and that no principle was laid down which
may give light to the learned Trial Court to decide the pending litigation.
Therefore, the learned Single Judge, decided the matter on merits rather
than referring it to the larger Bench for decision.
5. In this background, the argument of the learned counsel D
appearing for the appellant is that the High Court has not maintained
judicial decorum and should have referred the matter to the larger Bench
to decide the scope and ambit of Section 7(2) of the Act. We find that
since a short question of law arises for consideration, therefore, without
going into the question as to whether learned Single Judge should have
referred the matter to the larger Bench or not, the question to be decided E
by this Court is to bring certainty in respect of scope of Section 7 of the
Act.
6. Learned counsel for the appellant contends that the provisions
of Section 7(2) of the Act are pari-materia to Section 17(2) of West
Bengal Premises Tenancy Act, 19562which was the subject matter of F
consideration in an earlier judgment of this Court reported as B.P.
Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick3. Learned counsel
for the appellant argued that the Limitation Act, 1963 would be applicable
to seek condonation of delay in filing an application under Section 7(2)
of the Act. The learned Counsel also placed reliance upon judgments
G
reported as Shibu Chandra Dhar v. Pasupati Nath Auddya 4and Gaya
Prasad Kar v. Subrata Kumar Banerjee5
2
for short the “1956 Act”
3
(1987) 2 SCC 407
4
(2002) 3 SCC 617
5
(2005) 8 SCC 14(3) H
1032 SUPREME COURT REPORTS [2019] 13 S.C.R.
A 7. On the other hand, learned counsel for the respondent submitted
that the judgments in B.P. Khemka, Shibhu Chandra Dhar andGaya
Prasad Kar deal with Section 17 of the 1956 Act, wherein, sub section
(2A) empowers the court to extend the time specified in sub section (1)
or sub section (2). Sub section (2A) is an overriding provision starting
with a non obstante clause. There is no such equivalent provision in
B
the Act which was enacted while repealing the 1956 Act. It is argued
that B. P.Khemka has been considered by a three Judge Bench judgment
reported as Arjun Khiamal Makhijani Etc vs Jamnadas C. Tuliani
& Ors. Etc6 and distinguished the same in view of sub section (2A) of
the 1956 Act.
C 8. In another three Judge Bench judgment reported as
Nasiruddinand Ors. vs Sita Ram Agarwal7, it was held that in terms
of clause (a) of sub-section (2A) of Section 17 of the 1956 Act, the
requisite power to extend the time for deposit of rent on an application
made by the tenant is without any restriction. It was further held that the
D question of application of Section 5 of the Limitation Act, 1963 would
arise, if the appellant or the applicant satisfies the court that he had
sufficient cause for not making the appeal or application within such
period. Section 13(4) of the Rajasthan Premises (Control of Rent and
Eviction) Act, 19508 provides that the tenant shall on the first date of
hearing or, on or before such date, shall deposit in court or pay to the
E landlord in court from the date of such determination the amount so
determined or within such further time not exceeding three months as
may be extended by the Court. Thus, sub-section (4) itself provides for
limitation of a specific period within which the deposit has to be made,
which cannot exceed three months as extended by this Court. The deposit
F by the tenant within 15 days is not an application within the meaning of
Section 5 of the Limitation Act, 1963. Since the deposit does not require
any application, therefore, the provisions of Section 5 cannot be extended
where the default takes place in complying with an order under sub-
section (4) of Section 13 of the Act. It is thus contended that provisions
of the Rajasthan Act are close to the language of Section 7 of the Act.
G Therefore, the Limitation Act is not applicable to seek condonation of
delay in filing an application under Section 7(2) of the Act. It was held as
under:
6
(1989) 4 SCC 612
7
H (2003) 2 SCC 577
BIJAY KUMAR SINGH & OTHERS v. AMIT KUMAR 1033
CHAMARIYA & ANR. [HEMANT GUPTA, J.]
“15. B.P. Khemka [(1987) 2 SCC 407 : AIR 1987 SC 1010] arose A
out of the West Bengal Premises Tenancy Act, 1956 (in short
“the West Bengal Act”). In the said case the tenant committed
default in payment of arrears of rent and the landlord brought a
suit for eviction on the ground of default. While the suit was pending,
the West Bengal Premises Tenancy (Amendment) Ordinance 6
B
of 1967, which was replaced by the West Bengal Premises
Tenancy (Amendment) Act 30 of 1969 came to be promulgated
with effect from 26-8-1967. The Act gave a retrospective effect
to the amendments by providing that the amendments made by
Section 2 of the Ordinance shall have effect in respect of all suits
including appeals which were pending at the date of C
commencement of the Ordinance. The amendments inter alia
enabled tenants who were in default to apply to the court and pay
the arrears of rent in instalments and thereby avert their eviction.
In pursuance thereof, the tenant deposited the rent. However, he
subsequently committed default in paying monthly rent.
D
Consequently, the defence was struck off on the ground that in
paying the rent for the months of September 1968 and March
1969, there had been a delay of 44 days and 6 days respectively,
which was in contravention of Section 17(1) of the West Bengal
Act.
xxx xxx xxx E
17. This Court in B.P. Khemka case [(1987) 2 SCC 407 : AIR
1987 SC 1010] while interpreting the provisions of sub-section (4)
held that the proviso makes it clear that if the subsequent default
is for a period of 4 months within a period of 12 months, the
tenant can claim relief under the sub-section once again. Since F
the default was less than 40 days, this Court held that under the
said proviso, the delay could be condoned.”
9. The reliance is placed upon Monoj Lal Seal v. Octavious Tea
& Industries Ltd9, E. Palanisamy v. Palanisamy10, and Balwant
Singh v. Anand Kumar Sharma11as to when the statutory provisions G
can be said to be directory or mandatory.Learned counsel for the
8
for short the “Rajasthan Act”.
9
(2015) 8 SCC 640
10
(2003) 1 SCC 123
11
(2003) 3 SCC 433 H
1034 SUPREME COURT REPORTS [2019] 13 S.C.R.
A respondent referred to various orders passed by the Calcutta High Court,
taking a view that non-deposit of arrears of rent will result in dismissal
of the application under Section 7 of the Act.
10. We do not find any error in the order passed by the High
Court. One of the grounds of the eviction in terms of the Section 6(1)(b)
B of the Act is default in payment of rent for three months within the
period of twelve months, or for three rental periods within the period of
three years where the rent is not payable monthly. It is Section 7 of the
Act which provides for an opportunity to the tenant to make the payment
of arrears of rent, to avoid an order of eviction on account of its non-
payment. The relevant provisions of Section 7 of the Act read as under:
C
“7. When a tenant can get the benefit of protection against
eviction.—(1) (a) On a suit being instituted by the landlord for
eviction on any of the grounds referred to in Section 6, the tenant
shall, subject to the provisions of sub-section (2) of this section,
pay to the landlord or deposit with the Civil Judge all arrears of
D rent, calculated at the rate at which it was last paid and upto the
end of the month previous to that in which the payment is made
together with interest at the rate of ten per cent per annum.
(b) Such payment or deposit shall be made within one month of
the service of summons on the tenant or, where he appears in the
E suit without the summons being served upon him, within one month
of his appearance.
(c) The tenant shall thereafter continue to pay to the landlord or
deposit with the Civil Judge month by month by the 15th of each
succeeding month, a sum equivalent to the rent at that rate.
F
(2) If in any suit referred to in sub-section (1), there is any dispute
as to the amount of the rent payable by the tenant, the tenant
shall, within the time specified in that subsection, deposit with the
Civil Judge the amount admitted by him to be due from him together
with an application for determination of the rent payable. No such
G deposit shall be accepted unless it is accompanied by an application
for determination of the rent payable. On receipt of the application,
the Civil Judge shall, 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, an order specifying the amount, if any, due from the
H
BIJAY KUMAR SINGH & OTHERS v. AMIT KUMAR 1035
CHAMARIYA & ANR. [HEMANT GUPTA, J.]
tenant and, thereupon, the tenant shall, within one month of the A
date of such order, pay to the landlord the amount so specified in
the order:
Provided that having regard to the circumstances of the case an
extension of time may be granted by the Civil Judge only once
and the period of such extension shall not exceed two months. B
(3) If the tenant fails to deposit or pay any amount referred to in
sub-section (1) or sub-section (2) within the time specified therein
or within such extended time as may be granted, the Civil Judge
shall order the defence against delivery of possession to be struck
out and shall proceed with the hearing of the suit. C
(4) If the tenant makes deposit or payment as required by sub-
section (1) or sub-section (2), no 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 Civil Judge, but he may
allow such cost as he may deem fit to the landlord: D
Provided that the tenant shall not be entitled to any relief under
this subsection if, having obtained such relief once in respect of
the premises, he again makes default in payment of rent for four
months within a period of twelve months or for three successive
rental periods where rent is not payable monthly.” E
11. The Act has repealed the 1956 Act which had almost similar
provisions as contained in Section 7(1) and 7(2) of the Act, but the material
distinction is of sub sections (2A) and (2B) inserted by West Bengal
Premises Tenancy (Amendment) Ordinance No. IV of 1967. This was
replaced by West Bengal Premises Tenancy (Amendment) Act 30 of F
1969 with effect from 26.08.1967, giving retrospective effect to the
amendments which were made applicable to all suits, including appeals,
which were pending before commencement of the Ordinance. Sub
sections (2A) and (2B) so inserted read as thus:
“(2A) Notwithstanding anything contained in sub-section (1) or
G
sub-section
(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;
H
1036 SUPREME COURT REPORTS [2019] 13 S.C.R.
A (b) having regard to the circumstances 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:
B Provided that where payment is permitted by instalments such
sum shall include all amounts calculated at the rate of rent for the
period or 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
C when such amount was payable up to the date of such order.
(2B) No application for extension of time for the deposit or payment
of any amount under clause (a) of sub-section (2A) 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
D for permission to pay in instalment under clause (b) of sub-section
(2A) 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.”
12. This Court, while considering the above provisions of the 1956
E Act in B.P. Khemka held as under:
“11. Since the Ordinance came to be replaced long after by the
Act, Section 5 of the Ordinance was not reproduced in the Act
because it had served its purpose. What is, however, of significance
is that Section 5 of the Ordinance entitled the appellant to file an
F application under Section 17(2-A)(b), in the suit filed by the first
respondent which was pending then. Unfortunately, the High Court
has looked only into the Act and not the Ordinance and that is
how Section 5 of the Ordinance has escaped its notice. When
Section 17(2-A) and Section 5 of the Ordinance are read conjointly
G it may be seen that it was the intention of the legislature to extend
the benefit of subsection (2-A) to all pending suits and appeals
irrespective of the fact whether the time limit of one month
prescribed under Section 17(1) had expired or not. No other
construction is possible because any other construction would have
the effect of rendering otiose Section 5 of the Ordinance…..
H
BIJAY KUMAR SINGH & OTHERS v. AMIT KUMAR 1037
CHAMARIYA & ANR. [HEMANT GUPTA, J.]
12. If it was the intention of the legislature to restrict the benefits A
given under Section 17(2-A) to only those tenants against whom
suits had been filed within one month prior to the promulgation of
the Ordinance, there was no necessity to give retrospectivity to
sub-section (2-A) under Section 5 of the Ordinance. It has,
therefore, to be held that all tenants against whom suits or appeals B
were pending on the date of the promulgation of the Ordinance
were entitled to seek the benefit of Section 17(2-A) by filing an
application within one month from the date of promulgation of the
Ordinance. The High Court was, therefore, in error in holding
that the application under Section 17(2-A)(a) was itself not
maintainable. If the High Court’s view is to be accepted it would C
then amount to asking the appellant to perform the impossible i.e.
asking the appellant to file an application under Section 17(2-A)(b)
which came into force on August 26, 1967 within one month from
April 6, 1967 when the suit summons was served. Therefore the
first question has to be answered in favour of the appellant. The D
resultant position would then be that insofar as the payment of
arrears for the period ending February 29, 1968 is concerned, the
appellant had complied with the orders of the court under Section
17(2-A)(b) and was therefore entitled to claim the benefit of
Section 17(4).”
E
13. The said judgment was followed in Shibu Chandra Dhar
considering the 1956 Act. The judgment in Gaya Prasad Kar is also
interpreting the provisions of the 1956 Act.
14. However, another three Judge Bench judgment in Arjun
Khiamal whileexamining provisions of the Bombay Rents, Hotel and F
Lodging House Rates Control Act,194712 considered the judgment
reported as Vatan Mal v. Kailash Nath13, dealing withtheRajasthanAct,
held that Section 13(a) of the Rajasthan Act was to confer benefits on
all tenants against whom suits for eviction on the ground of default of
payment of rent were pending. Such judgment was not found to be
G
attracted in view of mandatory provisions contained in Section 12(3)(a)
of the Bombay Act. The judgment in B.P. Khemka was found not to be
of any assistance for the same reason.
12
for short the “Bombay Act”
13
(1989) 3 SCC 79 H
1038 SUPREME COURT REPORTS [2019] 13 S.C.R.
A 15. This Court in Nasiruddin also considered the question as to
whether provisions of a statute being directory or mandatory would
depend upon the language implied therein, and referred to a judgment
reported as Union of India v. Philip Tiago De Gama14. This Court
also examined the judgment in Shyamcharan Sharma v. Dharamdas15,
wherein it was found that there is no restriction in M.P. Accommodation
B
Control Act, 196116 to condone delay to deposit the arrears of rent,
whereas, the discretion available to the court under the Rajasthan Act is
limited. For the same reason, it was found that in terms of the Delhi
Rent Control Act, 195817, the court has power to extend the time to
deposit arrears of rent. This Court held as under:
C “31. We may further notice that in Shibu Chandra Dhar v.
Pasupati Nath Auddya [(2002) 3 SCC 617] which also arose
out of the West Bengal Premises Tenancy Act, it was held that
under sub-section (2-A) of Section 17 of the Act, the court has a
power to extend the period for depositing the rent in the event of
D default by the tenant to deposit the rent within a stipulated time.
This Court further held that if a court has no power to extend
the time, then in cases of small default beyond the reason of
the tenant, the time cannot be extended.
32. It is interesting to note that in Ganpat Ladha v. Sashikant
E Vishnu Shinde [(1978) 2 SCC 573 : (1978) 3 SCR 198] this Court
while interpreting similar provisions occurring in Section 12(3)(a)
of the Bombay Rents, Hotel, Lodging House Rates Control Act,
1947 (hereinafter referred to as “the Bombay Rent Act”) held:
(SCC p. 580, para 11)
F “Section 12(3)(b) does not create any discretionary jurisdiction
in the Court. It provides protection to the tenant on certain
conditions and these conditions have to be strictly observed by
the tenant who seeks the benefit of the section. If the statutory
provisions do not go far enough to relieve the hardship of the
tenant the remedy lies with the legislature. It is not in the hands
G of courts.”
14
(1990) 1 SCC 277
15
(1980) 2 SCC 151
16
For short the “M.P. Act”
17
H For short the “Delhi Act”
BIJAY KUMAR SINGH & OTHERS v. AMIT KUMAR 1039
CHAMARIYA & ANR. [HEMANT GUPTA, J.]
Thus under the Bombay Rent Act only on certain grounds the A
court can exercise its discretionary power and not on other
grounds.”
16. While examining as to when the provision of a statute is to be
treated as directory or mandatory, this Court held in Nasiruddin case
that if an act is required to be performed by a private person within a B
specified time, the same would ordinarily be mandatory but when a public
functionary is required to perform a public function within a time-frame,
the same will be held to be directory unless the consequences thereof
are specified. It was held as under:
“37. The court’s jurisdiction to interpret a statute can be invoked C
when the same is ambiguous. It is well known that in a given case
the court can iron out the fabric but it cannot change the texture
of the fabric. It cannot enlarge the scope of legislation or intention
when the language of the provision is plain and unambiguous. It
cannot add or subtract words to a statute or read something into it
which is not there. It cannot rewrite or recast legislation. It is also D
necessary to determine that there exists a presumption that the
legislature has not used any superfluous words. It is well settled
that the real intention of the legislation must be gathered from the
language used. It may be true that use of the expression “shall or
may” is not decisive for arriving at a finding as to whether the E
statute is directory or mandatory. But the intention of the legislature
must be found out from the scheme of the Act. It is also equally
well settled that when negative words are used the courts will
presume that the intention of the legislature was that the provisions
are mandatory in character.
F
38. Yet there is another aspect of the matter which cannot be lost
sight of. It is a well-settled principle that if an act is required to be
performed by a private person within a specified time, the same
would ordinarily be mandatory but when a public functionary is
required to perform a public function within a time-frame, the
same will be held to be directory unless the consequences therefor G
are specified. In Sutherland’s Statutory Construction, 3rd Edn.,
Vol. 3, at p. 107 it is pointed out that a statutory direction to private
individuals should generally be considered as mandatory and that
the rule is just the opposite to that which obtains with respect to
public officers. Again, at p. 109, it is pointed out that often the H
1040 SUPREME COURT REPORTS [2019] 13 S.C.R.
A question as to whether a mandatory or directory construction
should be given to a statutory provision may be determined by an
expression in the statute itself of the result that shall follow non-
compliance with the provision.
xxx xxx xxx
B 40. Thus, on analysis of the aforesaid two decisions we find that
wherever the special Act provides for extension of time or
condonation of default, the court possesses the power therefor,
but where the statute does not provide either for extension of
time or to condone the default in depositing the rent within the
C stipulated period, the court does not have the power to do so.
41. In that view of the matter it must be held that in absence of
such provisions in the present Act the Court did not have the
power to either extend the period to deposit the rent or to condone
the default in depositing the rent.”
D 17. Further, a three Judge Bench of this Court in a judgment
reported as Union of India and Others v. A. K. Pandey18 held as
under:
“15. The principle seems to be fairly well settled that prohibitive
or negative words are ordinarily indicative of mandatory nature
E of the provision; although not conclusive. The Court has to
examine carefully the purpose of such provision and the
consequences that may follow from non-observance thereof. If
the context does not show nor demands otherwise, the text of a
statutory provision couched in a negative form ordinarily has to
F be read in the form of command. When the word “shall” is
followed by prohibitive or negative words, the legislative intention
of making the provision absolute, peremptory and imperative
becomes loud and clear and ordinarily has to be inferred as such.
There being nothing in the context otherwise, in our judgment,
there has to be clear ninety-six hours’ interval between the accused
G being charged for which he is to be tried and his arraignment and
interval time in Rule 34 must be read as absolute. There is a
purpose behind this provision: that purpose is that before the
accused is called upon for trial, he must be given adequate time to
give a cool thought to the charge or charges for which he is to be
H 18
(2009) 10 SCC 552
BIJAY KUMAR SINGH & OTHERS v. AMIT KUMAR 1041
CHAMARIYA & ANR. [HEMANT GUPTA, J.]
tried, decide about his defence and ask the authorities, if necessary, A
to take reasonable steps in procuring the attendance of his
witnesses. He may even decide not to defend the charge(s) but
before he decides his line of action, he must be given clear ninety-
six hours.”
18. The judgment in B.P.Khemka is in respect of a statute giving B
power to condone delay without any fetters. The amendments carried
with retrospective effect inter alia enabled tenants who were in default
to apply to the court and pay the arrears of rent in instalments and thereby
avert their eviction. In pursuance of the amendments, the tenant deposited
the rent. However, he subsequently committed default in paying monthly
rent. Consequently, the defence was struck off on the ground that in C
paying the rent for the months of September 1968 and March 1969,
there had been a delay of 44 days and 6 days respectively, which was in
contravention of Section 17(1) of the West Bengal Act. This Court held
that the proviso makes it clear that if the subsequent default is for a
period of 4 months within a period of 12 months, the tenant can claim D
relief under the sub-section once again. Since the default was less than
40 days, this Court held that under the said proviso, the delay could be
condoned. Provisions of M.P. Act and of Delhi Act are also similar.
19. Sub section (1) of Section 7 of the Act relieves the tenant
from the ejectment on the ground of non-payment of arrears of rent if E
he pays to the landlord or deposits it with the Civil Judge all arrears of
rent, calculated at the rate at which it was last paid and up to the end of
the month previous to that in which the payment is made together with
interest at the rate of ten per cent per annum. Such payment or deposit
shall be made within one month of the service of summons on the tenant
or, where he appears in the suit without the summons being served upon F
him, within one month of his appearance.
20. Therefore, sub section (1) deals with the payment of arrears
of rent when there is no dispute about the rate of rent or the period of
arrears of rent. Sub section (2) of the Act comes into play if there is
dispute as to the amount of rent including the period of arrears payable G
by the tenant. In that situation, the tenant is obliged to apply within time
as specified in sub section (1) that is within one month of the receipt of
summons or within one month of appearance before the court to deposit
with the Civil Judge the amount admitted by him to be due. The tenant is
also required to file an application for determination of the rent payable. H
1042 SUPREME COURT REPORTS [2019] 13 S.C.R.
A Such deposit is not to be accepted, unless it is accompanied by an
application for determination of rent payable. Therefore, sub section (2)
of the Act requires two things, deposit of arrears of rent at the rate
admitted to be due by the tenant along with an application for determination
of the rent payable. If the two conditions are satisfied then only the
Court having regard to the rate at which rent was last paid and for
B
which tenant is in default, may make an order specifying the amount
due. After such a determination the tenant is granted one month’s time
to pay to the landlord the amount which was specified. The proviso of
the Act, limits the discretion of the court to extend the time for deposit of
arrears of rent. The extension can be provided once and not exceeding
C two months.
21. Sub section (3) provides for consequences of non-payment of
rent i.e. striking off the defence against the delivery of the possession
and to proceed with the hearing of the suit. Such provision is materially
different from sub sections (2A) and (2B) which was being examined
D by this Court in B.P. Khemka. Sub sections (2A) and (2B) of Section
17 of 1956 Act confer unfettered power on the court to extend the period
of deposit of rent, which is circumscribed by the proviso of sub sections
(2) and (3) of Section 7 of the Act. Therefore, the provisions of sub
section (2) are mandatory and required to be scrupulously followed by
the tenant, if the tenant has to avoid the eviction on account of non-
E payment of arrears of rent under Section 6 of the Act. There is an outer
limit for extension of time to deposit of arrears of rent in terms of the
proviso to sub section (2) of Section 7 of the Act. The consequences
flowing from non-deposit of rent are contemplated under sub section (3)
of Section 7 of the Act. Therefore, if the tenant fails to deposit admitted
F arrears of rent within one month of receipt of summons or within one
month of appearance without summons and also fails to make an
application for determination of the disputed amount of rate of rent and
the period of arrears and the subsequent non-payment on determining of
the arrears of rent, will entail the eviction of the tenant. Section 7 of the
Act provides for a complete mechanism for avoiding eviction on the
G ground of arrears of rent, provided that the tenant takes steps as
contemplated under sub section (2) of Section 7 of the Act and deposits
the arrears of rent on determination of the disputed amount. The deposit
of rent along with an application for determination of dispute is a pre-
condition to avoid eviction on the ground of non-payment of arrears of
H
BIJAY KUMAR SINGH & OTHERS v. AMIT KUMAR 1043
CHAMARIYA & ANR. [HEMANT GUPTA, J.]
rent. In view thereof, tenant will not be able to take recourse to Section A
5 of the Limitation Act as it is not an application alone which is required
to be filed by the tenant but the tenant has to deposit admitted arrears of
rent as well.
22. In view of the judgment in Nasiruddin, we do not find any
error in the order passed by the learned Single Judge. The Trial Court B
shall proceed with the suit in accordance with law. The appeals are
dismissed.
Kalpana K. Tripathy Appeals dismissed.
C
D
E
F
G
H
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