Holding

Section 17(3) of the West Bengal Premises Tenancy Act, 1956 is directory, and eviction cannot be ordered merely for a technical two‑day delay; the landlord must prove a case of default, which was not established, so the eviction decree was set aside.

Summary

G.C. Ghosh, a tenant, was ordered evicted by the respondents on the ground that he failed to deposit the November 1984 rent by the statutory deadline of 15 December, depositing it instead on 17 December. The lower courts had not found any default on the earlier grounds of bona‑fide requirement or sub‑letting, nor had they established a default in rent from November 1979, but they still upheld eviction based on the two‑day delay. The Supreme Court held that Section 17(3) of the West Bengal Premises Tenancy Act, 1956 is directory, not mandatory, and that striking off a defence does not automatically lead to an eviction order; the landlord must prove a case for eviction, including any alleged rent default. The two‑day delay was deemed a technical lapse that should be condoned, and the respondents failed to establish the alleged long‑standing default. Consequently, the eviction decree was set aside.

Issues considered

The effect of a two‑day delay in depositing rent under Section 17(1) of the West Bengal Premises Tenancy Act, 1956.
Whether Section 17(3) is a mandatory or directory provision.
Whether striking off a tenant's defence under Section 17(3) automatically results in an eviction order.
The burden on the landlord to prove default in rent when seeking eviction.
Whether an eviction decree can be sustained when the landlord has not established the alleged rent default.

Legislation cited

West Bengal Premises Tenancy Act, 1956s. 17(1), s. 17(2), s. 17(2A), s. 17(2B), s. 17(3), s. 17(4)

Subjects

evictionrent defaultWest Bengal Premises Tenancy ActSection 17technical defaultlandlord‑tenantdirectory provisionstriking off defencecondonation

Judgment

)
·-t

A GOPAL CHANDRA GHOSH
v.
SMT. RENU BALA MAJUMDAR AND ANR.

JANUARY 12, 1994

B [B.P. JEEVAN REDDY AND B.L. HANSARIA, JJ.]

West Bengal Premises Tenancy Act, 1956: Section 17-Eviction ordered
for failure to deposit rent in time-Delay of two days-Defence of tenant that '---r
-
delay occumd due to intervening holiday-Striking off defence-E.ffect of-
c Held: Order of eviction does not follow automatically-Landlord to prove that
case for eviction has been made out.

The Respondent filed a suit for eviction of the appellant sometime
in 1980 on grounds of bona fide requirement, sub-letting of the premises
by the appellant and default in payment of rent from November, 1979. The
D trial court as well as the first apellate court did not accept the case of the
respondent insofar as the first two grounds are concerned. There was no
finding of default in payment of rent, the third ground.
--'--
However, an eviction order was passed against the appellant for his
failure to deposit the rent for the month of November, 1984 before the 15th
E of the succeeding month, viz., 15th December 1984, as provided under s.
17(1) of the West Bengal Premises Tenancy Act, 1956 as the deposit was
on 17th December.

Having failed in the Courts below, the appellant preferred the
present appeal, contending that there was delay of two days only and these ~
F
two days being Saturday and Sunday, the failure to deposit the rent within
the time prescribed was technical and not real and hence it should be
regarded as inconsequential.

Allowing the appeal, this Court
G
HELD : 1.1. The purpose behind the West Bengal Premises Tenancy
Act, 1956 is to give protection to a tenant. While construing such a statute,
the substance of the matter has to be seen, and not merely the form. )--
Technicalities would have no place when the Court is seized with a human
problem, as is the one at hand, relatable as it is to the earning oflivelihood
H by the appellant by carrying on business in the shop premises. In such a
108
G.C. GHOSH v. SMT. MAJUMDAR 109

case, it is the heart of the matter which counts, and not the facade of it. A
(116-B-CJ
1.2. 'lbe present case was covered by sub-section (3) of S.17 of the
Act which is directory in nature. This would be more so while deciding
whether to order for eviction. 'lbe courts below were, therefore, under no
obligation to order for eviction merely because of two days delay in deposit B
of rent by the appellant. 'Ibis is not all. Sub-section (3) permits striking
otT the defence and requires proceeding with the hearing of the suit. So,
merely because defence is struck otT, order of eviction will not follow
automatically; the landlord shall have to prove dehors the defence of the
tenant, that a case for eviction bas been made out. This aspect of the
matter was completely missed by the courts below. It cannot be said that C
nothing would be required to be proved by a landlord in a case based on
allegation of default. The plea of default shall have to be established as
any other plea is required by law. "[117-A-C]

1.3. It was a fit case where two days delay in depositing the rent for the
month of November, 1984, ought to have been condoned. 'lbe failure not to D
do so bas resulted in failure of justice. This apart, the respondents not
having established their case of default in payment of rent from November
1979 onwards, on which plea eviction was prayed for when the suit was filed,
,the decree of eviction could not have been legally passed. (117-D-F]
E
M/s. B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick, [1987) 2
S.C.C. 407 and Shyamcharan Shanna v. Dharamdas, [1980) 2 S.C.C. 151,
relied on.
I
~
Ved Prakesh Wadhwa v. Vishwa Mohan, [1981) 3 S.C.C. 667 and J.L.
Varandani v. Asha Late Mukherjee (Dead) by L.rs., [1990) 4 S.C.C. 40, F
distinguished.

Govindlal Chhaganlal Patel v.Agricultural Produce Market Committee,
(1976) 1 S.C.R. 451 and Ganesh Prasad v. Lakshmi Narayan, [1985] 3
S.C.C. 53, referred to.
G
CIVIL APPEUATE JURISDICTION : Civil Appeal No. 1325 of 1988.
-\
' Frpm the Judgment and Order dated 7.4.1987 of the Calcutta High
Court in Appeal from Appellate Decree No. 208 of 1987.

Dr. S. Ghosh, G.S. Chatterjee, D.P. Mukherjee and A. Banerjee for H
110 SUPREME COURT REPORTS [1994ll S.C.R.

A the Appellant.

A.K. Ganguli, Ms. Mridula Ray, Dr. S. Bharadwaj and S.S. Ray for
the Respondents.

The Judgment of the Court' was delivered by
B HANSARIA, J. 1. The appellant has come to-be evicted from the
premises (a shop room) on his failure to deposit rent for November, 1984,
within 15th December, 1984, which is held to have incurred the wrath of ... -
Section 17 of West Bengal Premises Tenancy Act, 1956 (hereinafter called
'the Act'). There is no dispute that the rent was deposited on 17th Decem-
C ber, 1984. There was thus, if at all, delay of two days. This would even be
not so, if notice is taken of the fact that 16th was a Sunday, which shows
that 15th was a Saturday. If it would have been a half-working day,
Explanation to Section 4 of the Limitation Act would have taken care of
15th as well, in which case there would have been no delay at all.

D 2. Let it be seen whether the provision of section 17 is really so harsh
as to deny benefit of a beneficent statute like the Act at hand, even if there
was delay of two days in depositing the rent~ _~"

3. The eviction order came to be passed on a suit filed by the
.respondents some time in 1980 in which eviction was prayed on three
E grounds: '

(a) Bon,afide requirement of the premises;

(b) sub-letting of the premises by the appellant; and

F (c) default in paying rent from the month of November, 1979
onwards.

4. The trial court as well as the first appellate court did not ac,cept
the case of the resporidents in so far as first two grounds are concerned.
As to the third/there is"no finding of default as averred. What, however,
G happened was that the appellant failed to depo~it rent for the month of
N.ovembef, i984 within _the time visualised by Section 17 (1) of the Act,
which ultimately led to the passing of the order of eviction against him:As
already stated this come to happen becuase it has been held by the courts
below that is the mandate of Section 17 of the Act.

H 5. For understanding the contentions advanced by the learned coun-

•,
)
G.C. GHOSH v. SMT. MAJUMDAR (HANSARIA, J.] 111

sel of the parties, it would be necessary to note Section 17 in its entirety, A
which at the relevant time read as below:

"Sec.17 When a tenant can get the benefit of protection
against eviction.(!) On a suit or proceeding being in-
stituted by the landlord on any of the grounds referred to
in section 13, the tenant shall, subject to the provisions of B
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
c
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 pay-
ment is made together with interest on such amount cal-
culated at the rate of eight and one-third percent per D
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.
E
(Emphasis supplied)

(2) If in any suit or proceeding referred to in sub- section
(I) there is any dispute as to the amount of rent payable
by the tenant, the tenant, shall, within the time specified
in sub-section (I), deposit in court the amount admitted F
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-
G
(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 H
•
112 SUPREME COURT REPORTS [1994) 1 S.C.R.

A 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
B 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
c 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
D Court may, by order,-

(a) extend the time specified in sub-section (1) or sub-sec-
tion (2) for the deposit or payment of any amount referred
to therein;
E
(b) having regard to the circumstance of the tenant as also
of the· landlord and the total sum inclusive of interest
required to be deposited or paid under sub-section (1) on
account of default in the payment of rent, permit the
tenant to deposit or pay such sum in such instalments and
F 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
G
to that in which the order under this sub-section is to be
made with interest on any such amount calculated at the
rate specified in sub-section (1) from the date when such
amount was payable up to the date of such order.

H (2B) No application for e~ension of time for the deposit
G.C. GHOSH v. SMT. MAJUMDAR [HANSARIA, J.) 113

or payment of any amount under clause (a) of sub-section A
(2A) shall be entertained unless it is made before the
expiry of the time specified therefor in sub-section (I) or
sub-section {2), and no application for permission to pay
in instaJment under clause (b) of sub-section (2A) shall
be· entertained unless it is made before the expiry of the
time specified in sub-section (I) for the deposit or pay-
B
ment of the amount due on account of default in the
payment of rent.

(3) If a tenant fails to deposit or pay any amount referred
to in sub-section (I) or sub-section (2) within the time
specified therein or within such extended time as may be
c
allowed under clause (a) of sub-section {2A), or fails to
deposit or pay any instaJment permitted under clause {b) .
of sub-section {2A) within the time fixed therefore, the
Court shall order the defence against delivery of posses-
sion to be struck out and shall proceed with the hearing D
of the suit.

(4) If a tenant makes deposit or payment as required by
sub-section (I) or sub-section (2) or sub-section (2A), no
decree or order for delivery of possession of the premises
E
to the landlord on the ground of default in payment of
rent by the tenant shall be made by the Court but the
Court may allow such costs as it may deem fit to the
landlord:

Provided that a tenant shall not be entitled to any relief F
under this sub-section if, having obtained such relief once
in respect of the premises, he has again made default in
the payment of rent for four months within a period of
twelve months".

6. Shri Ghosh, learned counsel for the appellant, submits, on the G
strength of decision of this Court in Mis. B.P. Khemka Pvt. Ltd. v. Birendra
Kumar Bhowmick, (1987] 2 S.C.C. 407, that the failure, if any, of the
appellant was technical and not real; and so, the same should be regarded
as inconsequential in nature. In Khemki1'S case, this Court was called upon
to decide as 'to whether sub-section {3) of Section 17 of the Act was H
---(
114 SUPREME COURT REPORTS (1994) 1 S.C.R.

A mandatory in nature or directory. After referring to Govindlal Chaganlal >'-
Patel v. Agricultural Produce Market Committee, [1976) 1 S.C.R. 451 and
Ganesh Prasad v. Lakshmi Narayan, [1985) 3 S.C.C. 53, in the latter case
the provision being similar to Section 17(3) of the Act it was held in
paragraph 14 that the word 'shall' in abovesaid sub-section has to be read
as 'may'.
B
-,,.
7. Shri Ghosh has also placed reliance on Shyamcharan Shanna v.
Dharamdas, [1980) 2 S.C.C. 151, in which, while considering the import of
'{'
sub-sections (1), (5) and (6) of Section 13 of the Madhya Pradesh Aecom- ;

modation (Control) Act, which are in part·materia with sub-sections (1), ·
c (3) and (4) of Section 17 of the Act, it was held that court has power under
sub-section (6) to condone delay in deposit of rent having become due after
institution of suit for eviction. Learned counsel calls in aid Ved Prakash
Wadhwa v. Vishwa Mohan, (1981) 3 S.C.C. 667, too in which case this Court
dealt with "rather trifling question" noted in paragraph 4 which was that
the date of deposit of the rent could not be taken to be the date on which
D challan was passed but only the date on which the actual money was put
into the treasury. The Bench after noting two earlier decisions stated that
these decisions had laid down the law that when money is tendered before
the Court and thereupon challan is passed by the ministerial_ officers,
whereafter the money is deposited in treasury with the challan, the deposit
E relates back to the date on which the tender was made or the challan
presented.

8. Shri Ghosh has referred to the decision in Ved Prakash 's case
--{
because the challan in the present case was passed on 11.12.1984 and, as
F such, within 15 days of 30th November, 1984, which would satisfy even the
letter of law. As to this facet of the case, we may, however say that ~
Court took the aforesaid view because it was noted that before challan was
passed money was required to be tendered. There is nothing before us to
satisfy whether in the present case too the money was required to be
tendered before challan was passed. We would, therefore, hold that Ved
G Prakash's case does not assist the appellant.
·"....-' ' ~
f
9. Shri Ganguli appearing for the respondents has strenuously con-
tended that the presentcase is not covered by _sub-section (3)_ but attracts
sub-section (4) of Section 17 whose require~ent is not satisfied as the
H appellant had admittedly not deposited the rent as required by sub-section
G.C. GHOSH v. SMT. MATUMDAR [HANSARIA, J.J 115

(1). According to the learned counsel the case at hand is nearer to J.L. A
Varandlmi v. Asha Late Mukherjee (Dead) by L.rs., (1990) 4 S.C.C. 40, in
which relief under sub-section (4) of the Act was denied to a tenant who
had not made deposit as required by sub-section (1) read with sub-section
(2A). Shri Ganguly urges that in case of failure of a tenant to deposit the
monthly rent as required by the concluding part of sub-section (1), the only B
·"" reli.ef he can claim under Section 17 of the Act is to apply to the Court to
extend the time specified for deposit by sub-section (1) as permitted by
..., . sub-section (2A) and, if this would not be done, the Court would have no
choice but to order for eviction. The aforesaid follows, according to Shri
Ganguly, from what was held by this Court in Varandani's case.
c
10. We are not persliaded to accept the aforesaid submission, as in
Varandani's case the plea of the tenant was that as despite noh-deposit of
rent within the time allowed no order for striking off the defence had been
passed, it should be presumed that the delay in payment of rent was
condoned or deemed to have been condoned, because of which no decree D
>-- ..
for eviction could be passed. The facts of the instant case are different
inasmuch as Varandani's case was concerned with a"ear rent, as by Order
No.26 dated March 23, 1977 of which reference has been made in
parapraph 1 as well as in the ultimate paragraph, the appellant has been
asked to deposit arrears at specified rate, whereas in the case at hand it is
post-institution rent with which we are concerned. Further, the plea of E
presumed condonation of delay advanced in Varandani is not relevant for
the case at hand because non-striking off the defence, on which ground the
plea was advanced is governed by sub-section (3), which in Kh.emka's case
has been held to be directory.
F
11. Shri Ghosh has a point when he contends that if the power
relating to striking off defence be directory, the power to order eviction
has proprio vigore to be so inasmuch as the order of eviction has greater
lethality than an order striking off defence.

12. Being seized with a beneficial piece of enactment, we have to take G
a view which would advance the object and purpose by the Act, which
apparently is to give protection to a tenant and not to allow the law to
permit throwing out of a tenant merely because of some technical violation
of the statute. That this is the approach which has to be adopted would be
clear from Union of Indi.a v. Philiptiaqo De Gama, (1990) 1 S.C.C. 277, in H
116 . SUPREME COURT REPORTS [1994) 1 S.C R .

A paragraphs 16 and 17 of which it was stated thaf text of a statute is. not to
be construed merely as a piece of prose without reference to its nature or
purpose; and that if the strict gramatical interpretation were to give rise to
absurdity or inconsistency, the Court would discard such interpretation and
adopt one which will give effC(ct to the purpose of. the legislature. The
purpose in so far as the Act at hand is concerned is, as already noted, to
B give protection to a tenant. While contruing such a statute, the substance
of the matter has to be seen, and not merely the form. Technicalities would
have no place when the Court is seized with a human problem, as is the
one at hand, relatable as it is to the earning of livelihood by the appellant
by carrying on business in the shop premises. In such a ca5e it is the heart
c of the matter which counts, and not the facade of it.

13. As Shri Ganguli has strongly urged that the requirement of
sub-section (1) relating to deposit of rent failing due after institution of the
rent having not been satisfied, it was almost incumbent on the Court to
D pass-an order of eviction, let it be seen whether the case at hand really
attracts sub-section (4) or sub-.section (3) as in the contention of Shri
Ghosh. As sub- section (4) deals with the situation which arises on a tenant
making deposit or payment as required, inter alia, by sub-section (1),
whereas sub-section (3) is concerned with failure to deposit .or pay any
/
amount referred in sub-section (1), we are of the view that it is really
E sub-section (3) which would get attracted in the instant case it being one
of non-deposit as required by sub-section (1). Acceptance of contention of
Shri Ganguli would amount to conceding a situation converse to the one
mentioned in sub-section (4) as a part of legislative mandate. Logic does
not permit us to so hold, as, though all men are said to be anim.ais, the
F converse of it that all animals can be said t~ be men does not follow.

14. To buttress his submission, Shri Ganguli has, however, submitted
that where ejectment is prayed only on the ground of default, it is sub-sec-
tion (4) alone which would operate, other grounds of eviction would be
G covered by sub-section (3). We fmd no such sequitur, because sub-section
(1) refers to suit or proceedings instituted by the landlord on any of the
grounds referred to in Section 13, reference to which shows that default in '>--
/

payment of rent is one of the grounds. So operation of sub-section (3)
cannot be confined to cases other than those of default in payment of rent,
as that sub-section opens by referring to the question of failure to deposit
H rent, which question can arise only if .the tenant be a defaulter. ·
)-
G.C. GHOSH v. SMT. MAJUMDAR (HANSARIA, J.) 117

15. We, therefore, hold that the present case was covered by sub- A
section (3) which was held to be directory in Khemka's case. This would
be more so while dedding whether to order for eviction. The courts below
were, therefore, under no obligation to order for eviction merely because
of two dys delay in deposit of rent by the appellant. This is not all.
Sub-section (3) permits striking off the defence and requires proceeding B
with the hearing of the suit. So, merely because defence is struck off, order
of eviction will not follow automatically; the landlord shall have to prove
dehors the defence of the tenant, that a case for eviction has been made
out. The aspect of the matter completely missed the courts below. We do
not agree with Shri Ganguli that nothing would be required to be proved
by a landlord in a case based on allegation of default. According to us, the C
plea of default shall have to be established as any other plea is required
by law.

16. Thus, not only Khemka's case but Shyamcharan Shanna's case
also helps the appeUant and, according to us, it was a fit case where two
days delay in depositing the rent for the month of November, 1984, ought D
to have been condoned. The failure not to do so has resulted in failure of
>---.. justice. This apart, the respondents not having established their case of
default in paying rent from November 1979 onward, on which plea eviction
was prayed for when the suit was filed, the decree of eviction could not
have been legally passed. E
17. In the aforesaid view of the matter, we allow the appeal by setting
aside the impugned decree of eviction. In the facts and circumstances of
the case, we make no order as to costs.

G.N. Appeal allowed.