Bhim Chandra Patra v. Nirmala Joti — 1978 DIGILAW 569 (CAL)

JUDGMENT In this Rule what is assailed is order No. 16 dated August 14, 1973 made by the Munsif, Third Court at Howrah while disposing of an application made on behalf of the defendant-petitioner under sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act, 1956, (hereinafter referred to as the said Act). 2. In the present case admittedly there was rent due from tae defendant tenant to the plaintiff-landlord in respect of the period from September, 1972 till March, 1973. The case of the plaintiff was that the defendant was in arrear from November, 1970 to August, 1972 at the time when the suit was filed. The case of the defendant on the other hand was that he was inducted as a tenant in August, 1972, that he paid rent for the month of August, 1972 but got no receipt therefor and that u the landlord was not agreeable to grant any receipt, he could not pay rent since September, 1972. 3. In the circumstances aforesaid, the defendant made a composite application under sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act praying for determining the amount of rent due from him, for extending the time for putting in such amount and for granting instalments to put in the amount of rent that will be found due from him. 4. The only question raised before me in this case is whether the learned Munsif was justified in holding that the application was not maintainable in view of the fact that no deposit of the amount of rent admitted to be due from the tenant-defendant to the landlord-plaintiff was made within the period of one month from the date of the service- of summons on him. The summons was served on the defendant on April 23, 1973 and the said application was made before the learned Munsif on May 23, 1973. 5. The learned Munsif took the view that as the amount of rest admitted to be due was not put in within the period aforesaid, the application was not maintainable. So the question for determination in this case is whether the learned Munsif was justified in holding that the application was not maintainable. 6. The learned lawyer for the tenant-petitioner Mr. The learned Munsif took the view that as the amount of rest admitted to be due was not put in within the period aforesaid, the application was not maintainable. So the question for determination in this case is whether the learned Munsif was justified in holding that the application was not maintainable. 6. The learned lawyer for the tenant-petitioner Mr. Bose relied on several decisions of this Court in support of his contention that when an application under section 17(2A) of the said Act is made within the period prescribed by the Statute, the amount of rent admitted to be due need not be deposited and that such amount was to be deposited within a month from the date of preliminary order referred to in section 17(2) of the said Act. He further contends that in such circumstances he may also pray for extension of the period to deposit the admitted amount of arrear rent. 7. The answer to the question raised in this case will depend on the legal effect of the provisions of sub-section (2A) of section 17 of the said Act. Said sub-section (2A) was introduced into the Act by the West Bengal Premises Tenancy (Amendment) Act (30 of 1969). As the determination of the question involved in this case will require a reference to sub-sections (1), (2), (2A) and (2B) of section 17 of the said Act, it is considered proper to quote hereunder those provisions: "17. Said sub-section (2A) was introduced into the Act by the West Bengal Premises Tenancy (Amendment) Act (30 of 1969). As the determination of the question involved in this case will require a reference to sub-sections (1), (2), (2A) and (2B) of section 17 of the said Act, it is considered proper to quote hereunder those provisions: "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. (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. 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- (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. (2A) Notwithstanding anything contained in sub-section (1) or 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. (2A) Notwithstanding anything contained in sub-section (1) or 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. (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 : 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 subsection 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 upto the date of such order. (2B) No application for extension of time for the deposit or payment of tiny amount under clause (a) of sub-section (2A) shall be entertained unless it is made before the expiry of the time specified therefore in sub-section (1) or sub-section (2), and no application 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." 8. Several decisions were referred to by the learned lawyers appearing on behalf of the petitioner and the opposite party and they will be considered in due course. 9. The non-obstante clause with which the sub-section commences "notwithstanding anything contained in sub-section (1) or sub-section (2)" would mean that the provisions contained in sub-section (2A) shall apply no matter what is there contained in sub-section (1) or sub-section (2). Under clause (a) of sub-section (2A), the court may extend the time specified in sub-section. (i) or sub-section (2) for the deposit or payment of any amount referred to therein. Under clause (a) of sub-section (2A), the court may extend the time specified in sub-section. (i) or sub-section (2) for the deposit or payment of any amount referred to therein. The explicit and unambiguous language used in sub-section (2A) shows that the provisions of sub-section (2A) would apply to the time specified in sub-section (1) or sub-section (2) for the deposit or payment of any amount referred to therein and the court, therefore, may extend the time so specified when proper grounds are made out for such extension. Sub-section (1) makes it obligatory on the part of the tenant within one month of the service of writ of summons or where he appears in the suit or proceeding without the writ of summons being served on him within one month of his appearance to 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 thereon. This provision of sub-section (1) is made subject to those contained in subsection (2). Under sub-section (2) if there is any dispute as to the amount of rent payable by the tenant, it is obligatory on the part of the tenant, within the time specified in sub-section (1), to 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. It is further provided that no such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. The court on receipt of such an application shall make a preliminary order pending final decision of the dispute specifying the amount, if any, due from the tenant and the tenant shall thereupon, within one month of the date of such preliminary order, deposit in court or pay to the landlord the mount so specified in the preliminary order. Thereafter, according to the provisions of clause (b) of sub-section (2) a final order will follow. Thereafter, according to the provisions of clause (b) of sub-section (2) a final order will follow. Having regard to the provisions referred to above it cannot but be held that the proper construction of those provision would be to enable the court to extend the time within which according to the provisions of subsection (1) the rent in arrear and according to the provisions of sub-section (2) the amount which is admitted by the tenant to be due from him as also the amount which the court by its preliminary order and final order finds to be due from the tenant to the landlord is to be deposited or paid, as the case may be. It is of importance to note in this connection that the provision regarding extension of time as contained in clause (a) of sub-section (2A) makes no distinction between the amount admitted by the tenant to be in arrear and the amount which is determined by the preliminary or final order made by Court to be deposited or paid, as the case may be. 10. A different construction was put on the provisions of sub-section (2A) read with sub-section (2) by a few single Bench decisions of this Court. The decision that was referred to by the learned Advocate appearing for the opposite party is (1) Sri Sarada Sangha v. Asoka Sengupta, 76 CWN 862. In this case, the question of construction of sub-section (2A) was not raised, In a case where sub-section (2A) does not apply, the question whether failure to deposit the amount of rent admitted to be due from the tenant would render an application for determination of the amount of rent due from the tenant not-maintainable was decided by the Court in that case and the decision was that in such cases the application for determination of the amount of rent due from the tenant would be not maintainable. In that case, on a proper construction of the opening paragraph of sub-section (2) A.P. Das, J. took the view that the application for determination of rent payable by the tenant must be accompanied by a deposit of any admitted amount. It is significant to note that according to sub-section (2) the deposit of the amount admitted to be due shall not be accepted unless it is accompanied by an application for determination of rent payable. It is significant to note that according to sub-section (2) the deposit of the amount admitted to be due shall not be accepted unless it is accompanied by an application for determination of rent payable. The provision does not say that the application for determination of rent paid shall be accompanied by the deposit. Though, the provision of sub-section (2) does not require an application for determination of rent to be accompanied by a deposit of the admitted amount of rent, having regard to the other provisions of that sub-section it may perhaps be held that the application would become not maintainable is the absence of such deposit. But the position would be otherwise if, an application under sub-section (2) and also an application under sub-section (2A) be made by the tenant without depositing the admitted amount of rent. for, 118 already indicated, the tenant may ask for extension of the time specified in sub-section (1) or sub-section (2) for deposit of any amount referred to therein and the court may thereupon grant the extension asked, for. Thus, the decision in Sri Sarada Sangh's case (supra) has not much bearing on the question in issue in the present case. 11. In (2) Mukherjee S.K. v. Saila Bala Sen & Ors, 77 CWN 492, A.P. Das. J.. held on a construction of the provisions of sub-section (2) and sub-section (2A) of section 17 of the said Act that the court had no power under sub-section (2A) to extend the time for depositing in court the amount admitted by the tenant to be due from him which he was required to deposit along with his application under sub-section (2). This view was taken by A. P. Das, J. on the following considerations. Firstly according to him, the amount referred to in sub-section (1) is not the same thing as the amount admitted by the tenant to be due from him which he is required to deposit in court along with an application under sub-section (2). How this consideration is relevant I fail to appreciate. Sub-section (2A) in general terms provides that no matter what Is there in sub-section (1) or sub-section (2), the court may on the application of the tenant by an order extend the time specified in sub-section (1) or sub-section (2) for the deposit or payment of any amount referred to therein. How this consideration is relevant I fail to appreciate. Sub-section (2A) in general terms provides that no matter what Is there in sub-section (1) or sub-section (2), the court may on the application of the tenant by an order extend the time specified in sub-section (1) or sub-section (2) for the deposit or payment of any amount referred to therein. The expression "any amount" would make it clear that whether the amount is an amount of arrear rent referred to in sub-section (1) or an amount admitted to be due from the tenant and referred to in sub-section (2) or an amount which is determined by the Court by a preliminary or final order to be due from the tenant to the landlord extension of the time to deposit the same may be asked for. Sub-section (2A) makes no such distinction as is referred to in the said decision in Mukherjee S. K. (supra). 12. The second consideration on which the learned Judge bases his decision is that the time for deposit of admitted rent is not specified in sub-section (2) but that is the same as in sub-section (1). I find it difficult to agree with the learned Judge in this regard. When in subsection (2) the time referred to is that specified in sub-section (1) it cannot be said that period for deposit of admitted amount was not specified in sub-section (2). It is specified and it is the same period as that mentioned in sub-section (1). In the third place, I find it difficult to agree with the observation of the learned Judge that the time that can be extended under sub-section (2A) cannot refer to the time within which the admitted amount of rent which is in arrear is to he put in. According to the learned Judge, that may only mean the period within which the amount determined by the Court under clause (a) or clause (b) of sub-section (2) is to be put in. Sub-section (2A) does not warrant any such distinction as is sought to be made. According to the learned Judge, that may only mean the period within which the amount determined by the Court under clause (a) or clause (b) of sub-section (2) is to be put in. Sub-section (2A) does not warrant any such distinction as is sought to be made. Lastly, the learned Judge is of the opinion that the use of disjunctive "or" between the words sub-section (1) and subsection (2) in clause (a) of sub-section (2A) makes it clear that the Court can extend the time specified in sub-section (1) for the purpose of deposit or payment of the amount mentioned in sub-section (1) and not for the purpose of deposit or payment of any amount referred to in sub-section (2) and vice-versa. How on a construction of the provisions of subsection (2A) such a conclusion may be arrived at is not quite intelligible. 13. In the case of Mukherjee S. K. (supra), Sri Sarada Sangha's case (supra) was referred to, but as already stated by me the decision in Sri Sarada Sangha's case can have no application in the case of Mukherjee S. K. (supra) as the question of interpretation of sub-section (2A) was not raised in Sri Sarada Sangha's case. 14. Another case referred to by the learned Advocate for the opposite party is (3) Kazi Abdul Hossain v. Fazlur Rahman & Bros. 78 CWN 579. The head-note shows that R. Bhattacharyya J. who heard this case held that the application was rightly rejected by the trial court as the tenant did not deposit the admitted rent within the time along with an application under section 17(2) of the said Act as required by law. The head-note is wrong and misleading, inasuch as in that case as there was no prayer under sub-section (2A) regarding amount of arrear rent, the learned Judge without deciding whether the principle laid down in the case of Mukherjee S. K. (supra) was correct, rejected the application. 15. The case of (4) Hindusthan Industrial v. Chandi Prasad More, 79 CWN 1017 which was decided by a Division Bench of this Court was also referred to on behalf of the opposite party. The decision in this case also has no application to the facts and circumstances of the present case as there was no question of application of the provision of sub-section (2A) in that case. The decision in this case also has no application to the facts and circumstances of the present case as there was no question of application of the provision of sub-section (2A) in that case. There, the Court was not invited to adjudicate on the amount of rent payable and no deposit was made under sub-section (2) and the application could not, therefore, be treated as one made under sub-section (2). In (5) Basab Basu & Ors. v. Bhupati Ranjan Sen, 80 CWN 350, A. P. Bhattacharyya J. following the decision in the said cases of Hindusthan Industrial (supra), Mukherjee S. K. (supra) and Kazi Abdul Hossain (supra) took the view that the court had no power under sub-section (2A) to extend the time for depo5it of admitted amount of rent due from the tenant. The foregoing discussions would show that the cases referred to were already discussed by me. Further, it may be reiterated that the case of Kazi Abdul Hossain (supra) did not decide the question that is now before me. The learned Judge while deciding the case of Basab Basu & Ors. (supra) pointed out that the observation made by S. K. Mukherjee J. in the case of (6) Maliram Agarwala v. Bhudarmal Agarwala, 78 CWN 901 was an obiter as the question covered by that observation was not necessary for determination of the issue raised in that case. 16. The view taken by me that when an application under sub-section (2) and sub-section (2A) was made without the deposit or payment of the admitted amount of rent due from the tenant, the failure to deposit such amount would not be fatal to the application finds support from the view maintained by Salil K. Dutta, J. in (7) Bhagawan Shaw v. Smt. Simmi Goyal 1978 (2) CLJ 254 . 17. In (8) Pulin Kumar Chowdhury v. Sachindra Mohan Bose & Ors. 1978 Calcutta High Court Notes 774, C. Mukharjee J. rightly observed that sub-section (2A) of section 17 starts with the non-obstante expression notwithstanding anything contained in sub-section (1) or subsection (2)" and that accordingly sub-section (2A) engrafts an exception on the provisions of sub-section (1) and sub-section (2) to the extent contained in sub-section (2A). 1978 Calcutta High Court Notes 774, C. Mukharjee J. rightly observed that sub-section (2A) of section 17 starts with the non-obstante expression notwithstanding anything contained in sub-section (1) or subsection (2)" and that accordingly sub-section (2A) engrafts an exception on the provisions of sub-section (1) and sub-section (2) to the extent contained in sub-section (2A). In the case of Maliram Agarwala (supra) the question under discussion in the present case did not specifically arise but S. K. Mukherjee J. made the following observation: "The case could well have been disposed of without answering a question of construction which was raised at the hearing, the question being whether the court had power under section 17(2A) of the West Bengal Premises Tenancy Act, 1956, to extend the time for depositing in court the amount admitted by the tenant to be due from him which he is required to deposit along with his application under section 17(2). In S. K. Mukherjee v. Saila Bala Sen & Ors., 77 CWN 492, A. P. Das J. held that the court had no such power. When a case can be decided without answering a question of law, the court need not and often does not answer the question. If, however, the court is of opinion that the question has not been correctly answered in a decision of the High Court which is binding on subordinate courts and inferior Tribunals and the question is of general importance, there is a duty to speak." 18. Even if inspite of the aforesaid observation it be conceded that the observation of S.K. Mukherjea, J. is an obiter, the reasons advanced by him in support of the principle discussed by him may be taken into consideration in a case where the question which is in issue in the present case arises. S. K. Mukherjea J. rightly pointed out while considering the power of the court under sub-section (2A) that it would be seen at once that the power conferred on the court is of the widest amplitude and that the non-obstante clause with which the sub-section opens, the specific reference to sub-section (2) and the deliberate use in clause (a) of the words "for the deposit or payment of any amount referred to therein" clearly indicate that by sub-section (2A), the legislature intended to mitigate the rigour not only of sub-section (1) but also of sub-section (2). 19. 19. In this context it would be proper to note that when with a view to mitigating the rigour of law so far as the tenants are concerned the legislature in general terms confers on the court the power to extend the period mentioned in sub-section (1) and sub-section (2) there will be no justification on our part to draw any distinction between the amount mentioned in sub-section (1) and the different amount mentioned in the different parts of sub-section (2). The obvious intention of the legislature was to give some protection to the tenants in the matter of deposits to be made within the time specified in sub-section (1) and different parts of sub-section (2). If, in such circumstances, any distinction be made in the matter of application of the provisions of sub-section (2A) between the case of deposit to be made under sub-section (1) and that of the deposit of the amount admitted to be in arrear by the tenant to be made by him in accordance with first part of sub section (1) we shall be engrafting an exception on the provisions of sub-section (2A) which the language of that sub-section does not warrant. 20. The records of the suit will show that the application under sub-sections (2) and (2A) of section 17 of the said Act was made within the period mentioned in sub-section (2B) of that section. 21. In the said application under sub-sections (2) and (2A) the tenant besides praying for extension of time to deposit the amount of arrear rent and for determination of the amount due from the tenant to the landlord wanted the Court to grant instalment. In this connection it may be pointed out that payment by instalments may be asked for under clause(b) of sub-section (2A) of section 17 but clause (b) applies only to the amount required to be deposited or paid under sub-section (1) of section 17. Said clause (b) has no application to the amount to be deposited under sub-section (2) of section 17. So the prayer for payment by instalments as made in the present case cannot be allowed. 22. Said clause (b) has no application to the amount to be deposited under sub-section (2) of section 17. So the prayer for payment by instalments as made in the present case cannot be allowed. 22. In view of the aforesaid discussions I am clearly of the view that an application made under sub-section (2A) of section 17 of the said Act cannot be found to be not maintainable on the ground that the tenant failed, within a month from the date of service on him of the summons, to deposit the amount of arrear rent due from him to the landlord. 23. The Rule is made absolute. The order impugned is set aside. The court below is to dispose of the application under sub-section (2) and (2A) of section 17 of the said Act according to law. There will be no order as to coats.