DEBASISH PAUL & ANR.versusAMAL BORAL

                  [2023] 14 S.C.R. 511 : 2023 INSC 925



                             CASE DETAILS

                        DEBASISH PAUL & ANR.
                                       v.
                              AMAL BORAL
                      (Civil Appeal No. 6565 of 2023)
                            OCTOBER 18, 2023.
  [SANJAY KISHAN KAUL AND SUDHANSHU DHULIA, JJ.]

                               HEADNOTES

      Issue for consideration: Whether the High Court was justified in
directing the trial court to dispose of the application filed by the tenant u/s.
5 of the Limitation Act, 1963, when the trial court had already rejected the
application filed by the tenant u/s.7(1) and (2) of the West Bengal Premises
Tenancy Act, 1997 for protection against eviction, on the ground of delay
of 10 months.
      Limitation Act, 1963 – s. 5 – Applicability of, to proceedings and
appeals under the West Bengal Premises Tenancy Act, 1997 – Tenant,
if entitled to take recourse to s. 5, when his application u/ss. 7(1) and
7(2) of the 1997 Act, seeking protection against eviction was rejected
due to a delay of ten months:
      Held: Though generally the Limitation Act is applicable to the
provisions of the said Act in view of s.40 of the 1997 Act, if there is a lesser
time period specified as limitation in the said Act, then the provisions of the
Limitation Act cannot be used to expand the same – Real intention of the
legislation must be gathered from the language used – Tenancy Acts provide
for certain protections to the tenants beyond the contractual rights, thus, the
provisions must be strictly adhered to – In proceedings initiated on account
of non-payment of rent, the tenant is required to deposit all arrears of rent
where there is no dispute on the admitted amount of rent and even in case
of a dispute – Needful has to be done within the time stipulated and should
be accompanied by the application filed u/s. 7(1) & (2) – Proviso only gives
liberty to extend the time once by period not exceeding two months – Tenant
                                      511
512          SUPREME COURT REPORTS                          [2023] 14 S.C.R.


neither paid the rent, nor deposited the rent by moving the application nor
deposited it within the extended time as stipulated in the proviso – Mere
allegation of absence of correct legal advice cannot come to the aid of the
tenant – Statement of arrears of rent would show that for 142 months till
filing of the petition u/s. 7, rent was not paid and even thereafter arrears has
not been paid – Impugned order of the High Court directing the trial court to
dispose of application u/s. 5, not sustainable and is set aside – West Bengal
Premises Tenancy Act, 1997 – ss. 40, 7(1), (2). [Para 16-21]
      Advocates – Allegation of absence of correct legal advice – Effect:
      Held: Mere allegation of absence of correct legal advice cannot come
to the aid of the tenant as if such a plea was to be accepted it would give a
complete license to a tenant to occupy premises without payment of rent
and then claim that he was not correctly advised – If the tenant engages an
advocate and abides by his advice, then the legal consequences of not doing
what is required to be done, must flow. [Para 19]

       LIST OF CITATIONS AND OTHER REFERENCES

     Bijay Kumar Singh v. Amit Kumar Chamariya (2019) 10 SCC 660;
Nasiruddin and Ors v. Sita Ram Agarwal (2003) 2 SCC 577: [2003] 1 SCR
634 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.6565 of 2023
     From the Judgment and Order dated 21.08.2019 of the High Court at
Calcutta in C.O. No.3859 of 2018
      Appearances:
     Ramakrishnan Viraraghavan, Sr. Adv., Anand, Abhijit Sengupta, Ms.
Rajeshri Nivuratirao Reddy, Rohit Jaiswal, Ms. Shivani Jain, Sanjay Kumar,
Advs. for the Appellants.
      Niteen Kumar Sinha, Sonipam M.C., Rameshwar Prasad Goyal, Advs.
for the Respondent.
          DEBASISH PAUL & ANR. v. AMAL BORAL                              513



       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT

     SANJAY KISHAN KAUL, J.
       1. Respondent is stated to have been inducted as a tenant in respect of
shop No. AC 249, Rabindrapally, Krishnapur, Post Office Prafulla Kanan,
Police Station Baguiati, Kolkata – 700101, District 24 Parganas (North) at an
agreed rent of Rs.352/- per month of which the appellants are the landlords.
It is the say of the appellants that the respondent stopped paying the rent
from February 2005, and on that account ultimately a notice was served on
31.10.2013 on the respondent to vacate the premises. Soon thereafter, the
appellants filed a suit for eviction, being title Suit No.667/2013 against the
respondent-tenant for non-payment of rent.
     2. In the proceedings, the respondent made an application under
Sections 7(1) and (2) of the West Bengal Premises Tenancy Act, 1997
(hereinafter referred to as the ‘said Act’). The application was rejected by
the Trial Court vide a judgment dated 11.09.2018 on the ground that the
respondent had entered appearance in the suit on 09.02.2016 but filed the
application only on 14.12.2016 i.e., after a delay of ten months.
     3. The application, not being filed within the statutory period of one
month, was, thus, rejected. No application was filed under Section 5 of the
Limitation Act, 1963.
      4. The respondent, aggrieved, by the same preferred a Civil Revision
before the High Court and in terms of the judgment dated 21.08.2019, the
High Court set aside the judgment dated 11.09.2018 and granted liberty to
the respondent-tenant to file an application under Section 5 of the Limitation
Act, 1963 explaining the circumstances causing the delay for the purpose
with the prayer for condonation of delay in support of the application under
Sections 7(1) and 7(2) of the said Act already filed.
     5. We may notice that the ground sought to be made out by the
respondent-tenant was that his failure to deposit arrears of rent coupled with
monthly rent was on account of ill-advise by his advocate that no steps were
514           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


required to be taken in view of the stay granted by the High Court in C.O.
No.233/2006. The respondent claimed that having become cognizant of this,
he made amends by filing the written statement on 14.12.2016 along with the
application under Sections 7(1) and 7(2) of the said Act, which was rejected.
The High Court directed the Trial Court to dispose of the application under
Section 5 of the Limitation Act, if any, filed within the stipulated period
mentioned without granting any unnecessary adjournments and preferably
within two months from the date of filing of the application.
      6. Notice was issued in the SLP and thereafter leave was granted.
      Relevant Provisions
      7. In order to appreciate the contours of the arguments, it is necessary
to reproduce the relevant provisions of the said Act and the Limitation Act
as under:
      Section 5 of The Limitation Act, 1963
      “5. Extension of prescribed period in certain cases. — Any appeal or
      any application, other than an application under any of the provisions
      of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may
      be admitted after the prescribed period if the appellant or the applicant
      satisfies the court that he had sufficient cause for not preferring the
      appeal or making the application within such period.
      Explanation — The fact that the appellant or the applicant was missed
      by any order, practice or judgment of the High Court in ascertaining
      or computing the prescribed period may be sufficient cause within the
      meaning of this section.”
      ….         ….       ….       ….      ….       ….
      Section 40 of the West Bengal Premises Tenancy Act, 1997
      “40. Application of the Limitation Act, 1963 to proceedings and
      appeals. – Subject to the provisions of this Act relating to limitation,
      the provisions of the Limitation Act, 1963, shall apply to proceedings
      and appeals under this Act.”
      ….         ….       ….       ….      ….       ….
    DEBASISH PAUL & ANR. v. AMAL BORAL                                515
         [SANJAY KISHAN KAUL, J.]

Section 7 of the West Bengal Premises Tenancy Act, 1997
“7. When a tenant can get the benefit of protection against eviction.
– (1) (a) On a proceeding 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 Controller 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.
(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
proceeding 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 Controller month by month by the 15th of each succeeding
month, a sum equivalent to the rent at that rate.
(2) If in any proceeding 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 sub-section, deposit with the
Controller the amount admitted by him to be due from him together
with an application 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 the application,
the Controller 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 tenant and,
thereupon, the tenant shall, within one month of the 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 Controller only once and the
period of such extension shall not exceed two months.”
516           SUPREME COURT REPORTS                           [2023] 14 S.C.R.


      Arguments of learned counsel for the parties and our conclusion:
      8. The default of the respondent in payment of the rent is not in dispute.
The application, which was filed under Sections 7(1) and 7(2) of the said
Act, was not within the window of the statutory period. The only reason
stated was that there was lack of proper advice from the advocate and the
proceedings before the Trial Court and subsequently he sought to make
amends by filing the written statement. The arguments had, thus, revolved
around the issue whether the High Court could have invoked the provisions
of Section 5 of the Limitation Act, 1963 to give benefit to the respondent
for such a claim to be considered by the Trial Court.
      9. On perusal of the provisions of Section 7 of the said Act, it is apparent
that the tenant can get protection under the said Act only in compliance
of what has been set out therein. Clause (a) of Sub-Section 1 of Section 7
provides for payment of arrears by the tenant to the landlord where there
neither exist a dispute qua quantum of rent nor the time period involved. In
the factual matrix of the present case, there is really no dispute either qua
the quantum or the time period. In terms of Clause (b), the payment has to
be made within one month of the service of summons on the tenant or where
he appears in the proceedings without the summons being served on him
within one month of his appearance and in terms of Clause (c), the tenant
thereafter to pay the landlord or deposit with the controller month-by-month
a sum equivalent to the rent by the 15th of each succeeding month.
      10. Sub-Section (2) of Section 7 refers to a scenario where there is
dispute about the rent payment and even then, there is a bounden duty of
the tenant to deposit with the Controller the amount admitted by him due
from him together with the application of determination of rent payable.
As per the Proviso under Section 7, an extension of time can be granted by
the Controller only once and the period of such extension cannot exceed
two months.
      11. The submission of the respondent is that in view of Section 40 of
the said Act, provisions of the Limitation Act apply to proceedings in appeal
and, thus, the respondent is entitled to take recourse to the said provisions.
     12. On the other hand, the submission of the learned counsel for the
appellant is that the said provision is the general provision, but where a lesser
              DEBASISH PAUL & ANR. v. AMAL BORAL                          517
                   [SANJAY KISHAN KAUL, J.]

period is provided for any purpose, then that period cannot be expanded
by taking recourse to the general provision under the Limitation Act, 1963.
     13. It is the say of the appellant that the matter is fully covered by
a Two-Judges Bench of this Court in Bijay Kumar Singh v. Amit Kumar
Chamariya1, opining that the provisions of Section 5 of the Limitation Act,
1963 will not apply in such an instance. The Court observed as under:
     “21.…. The deposit of rent along with an application for determination
     of dispute is a precondition 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 to be filed by the tenant but the
     tenant has to deposit admitted arrears of rent as well.”
      14. On the other hand, it is the submission of the learned counsel for
the respondent that the aforesaid judgment is contrary to the view of a Three-
Judges’ Bench judgment in Nasiruddin and Ors v. Sita Ram Agarwal2. It
is, however, conceded that the said judgment has been referred to by Two-
Judges Bench in Bijay Kumar Singh case3.
      15. It is relevant to note that the case of Bijay Kumar Singh,4 in turn,
referred to the observations made in Nasiruddin case5 in the following terms:
     “37. …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 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.
     38. …if an act is required to be performed by a private person
     within a specified time, the same would ordinarily be mandatory but


1   (2019) 10 SCC 660
2   (2003) 2 SCC 577
3   (supra)
4   (supra)
5   (supra)
518             SUPREME COURT REPORTS                       [2023] 14 S.C.R.


       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 are specified.”
      16. We have no doubt over the proposition that though generally
the Limitation Act is applicable to the provisions of the said Act in view
of Section 40 of the said Act, if there is a lesser time period specified as
limitation in the said Act, then the provisions of the Limitation Act cannot
be used to expand the same. It is in this context that in Nasiruddin6 case, it
has been mentioned that the real intention of the legislation must be gathered
from the language used. Thus, the reasoning in Bijay Kumar Singh7 case
cannot be doubted more so as the requirement is for a tenant to file an
application, but he has to deposit the admitted arrears of rent as well, which
has certainly not been done.
      17. We are of the view that a combined reading of the two statutes
would suggest that while the Limitation Act may be generally applicable to
the proceedings under the Tenancy Act, the restricted proviso under Section
7 of the said Act, providing a time period beyond which no extension can
be granted, has to be applicable. The proviso is after Sub-Section (2) of
Section 7 but Sub-Section (2) of Section 7 in turn refers to Sub-Section (1)
implying the application of the proviso to Sub-Section (1) too.
       18. There is also a larger context in this behalf as the Tenancy Acts
provide for certain protections to the tenants beyond the contractual rights.
Thus, the provisions must be strictly adhered to. The proceedings initiated
on account of non-payment of rent have to be dealt with in that manner as
a tenant cannot occupy the premises and then not pay for it. This is so even
if there is a dispute about the rent. The tenant is, thus, required to deposit
all arrears of rent where there is no dispute on the admitted amount of rent
and even in case of a dispute. The needful has to be done within the time
stipulated and actually should accompany the application filed under Sub-
Sections (1) & (2) of Section 7 of the said Act. The proviso only gives liberty
to extend the time once by period not exceeding two months.



6     (supra)
7     (supra)
            DEBASISH PAUL & ANR. v. AMAL BORAL                                519
                 [SANJAY KISHAN KAUL, J.]

      19. The respondent neither paid the rent, nor deposited the rent by
moving the application nor deposited it within the extended time as stipulated
in the proviso. The mere allegation of absence of correct legal advice cannot
come to the aid of the respondent as if such a plea was to be accepted it would
give a complete license to a tenant to occupy premises without payment of
rent and then claim that he was not correctly advised. If the tenant engages
an advocate and abides by his advice, then the legal consequences of not
doing what is required to be done, must flow.
      20. We have also been given a statement of arrears of rent, which
would show that for 142 months i.e., from February 2005 till filing of the
petition under Section 7 of the said Act in December, 2016, rent was not
paid and even thereafter arrears has not been paid as per the admitted rent
of Rs.352 per month. The chart in this behalf, as submitted in Court, reflects
the position as under:
       No. Description                               Number of Amount
                                                     months
       1.     From February, 2005 till the filing of 142 X 352/- 49,984
              Section 7 petition in December, 2016
       2.     From January, 2017 till the dismissal of 21 X 352/-     7,392
              Section 7 petition in September, 2018
       3.     From October, 2018 till the impugned order 10 X 352/-   3,520
              in August, 2019
       4.     From September, 2018 till October, 2023 49 X 352/-      17,248
              Total arrears of rent                                   78,144
      Admitted Rent: Rs.352 per month

      21. We, thus, have no hesitation in coming to the conclusion that the
impugned order of the High Court dated 21.08.2019 is not sustainable and
the same is accordingly set aside while sustaining the order of the Trial
Court dated 11.09.2018.
      22. The appeal is accordingly allowed with costs throughout in favour
of the appellants.


Headnotes prepared by:                                            Appeal allowed.
Nidhi Jain