J.L. VARANDANIversusSMT. ASHALATA MUKHERJEE (DEAD) BY LRS.

                              J .L. VARANDANI
A                                       v.
          SMT. ASHALATA MUKHERJEE (DEAD) BY LRS.

                               AUGUST 3, 1990

B     [J.S. VERMA, M.M. PUNCHHI AND K. JAYACHANDRA
                         REDDY, JJ.]

          West Bengal Premises Tenancy Act, 1956: Sections 17(2), (2A),
    (2B), (3) and (4).

        Rent Control-Default in payment of rent-Suit for eviction-·
C Benefit ofprotection against eviction to the tenant under Section 17(4)-
   Deposit of rent in compliance with Court's order under Sections 17(2)
   and 17(2A)-Condition precedent-Non striking off defence by the
   Court under section 17(3) for failure to deposit rent within the specified
   time-Whether leads to presumption that time was extended and delay
f) condoned.


        The respondent-bmdlady filed a suit for eviction of the appellant-
  tenant on the ground of default in payment of rent. The appellant
  deposited the rent and made an application under section 17(2) of the
  West Bengal Premises Tenancy Act, 1956. The Trial Court'determined
E the rent payable and directed deposit of the arrears of rent. The suit
  was subsequently compromised.

        Tile appellant again committed a default in payment of rent and
  the respondent filed another suit for eviction. The appellant filed peti-
  tion under section 17(2) and (2A), disputing the amount of rent and also
F seeking permission to deposit rent by instalments. The Trial Court
  decided the rent payable and directed the appellant to deposit the
  arrears of rent in monthly instalments by the 15th of each month.
  Thereupon the appellant-tenant claimed protection under section 17(4)
  which was resisted by the landlady on the ground that (i) the protection
  cannot be granted as per the proviso to section 17(4), since he has
G already been granted relief once in the earlier suit, and (ii) Appellant's
  non-compliance with the Court's order in depositing the rent disentitled
  him from claiming relief under section 17(4).

        The Trial Court decreed the respondent's suit and the first appel-
  late Court as well as the High Court confirmed the same by dismissing
H the appeals preferred hy the appellant.

                                      610
._.               J.L. VARANDAN! v. SMT. MUKHERJEE [REDDY, J.]


               In the appeal to this Court it was contended on behalf of the
        appellant that since the follow-up action of the Court under section
                                                                             611



        17(3) viz. striking off the defence has not been ordered, it should be
                                                                                    A

        presumed that the delay in depositing the rent was condoned thereby
        entitling the appellant to relief under section 17(4).

              Dismissing the ap;ieal, this Court,                                   B

        HELD: The mere fact that the Court has not passed an order
~-
  striking off the defence as contemplated under Section 17(3) because of
  the tenant's failure to deposit within the time specified in the order
  passed under Section 17(2) and 17(2A), does not necessarily lead to a
  presumption that the time was extended. On the other hand Section
  l 7(2B) which is a mandatory provision lays down that no application              c
  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 in sub-section (J). [6JSH; 6 !6C]

              In the instant case no application for extension of time was made     D
        by the appellant. Therefore, in the absence ofsnch application it cannot
        be contended that the Court is deemed to have condoned thedelay. [6!6GJ




~
             Since deposit of rent as per Court's order under Section 17(2) and
       (2A) is the condition precedent for seeking relief under section 17(4) the
       appellant who has not fulfilled the same cannot claim the said relief.       E
       The orders of the Court below are therefore confirmed. 1616H]

             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 671



~-
       of 1985.

             From the Judgment and Order dated 24th August, 1984 of the             F
       Calcutta High Court in Appeal from Appellate Decree No. 263 of
       1979.

             N .S. Nesargi and Dr. Meera Agarwal for the Appellant.

             Rajan Mahapatra and Rathin Das for the Respondents.                    G



-··          The Judgment of the Court was delivered by

              K. JAYACHANDRA REDDY, J. The matter arises under the
       West Bengal Premises Tenancy Act, 1956 ('Act' for short). The appel-
       !ant is the tenant occupying the premises belonging to the respondent        H
    612                   SUPREME COURT REPORTS             [ 1990] 3 S.C.R.

  on a monthly rent of Rs.475. The respondent landlady filed a Suit No.
  T.S. 84/73 on the ground of default of rent for the period from May to ~
A
  August, 1973. The appellant deposited the rent and made an applica-
  tion under Section 17(2) of the Act. The trial court vide its order dated
  27 .2. 74 held that the rent payable is only Rs.450 per month and
  directed the appellant to deposit the balance of arrears of rent within
B 15 days. At this stage a compromise memo was filed and the suit was
  compromised in terms of the compromise memo. Jn the memo it was
  mentioned that the default was of the first instance and that there -,.,
  would be no decree for khas possession. It appears the appellant again
  committed default in payment of rent from June to December, 1975
  (both months inclusive). The respondent landlady filed Title Suit
  No. 3/76 after giving notice for eviction. In that suit the appellant filed
c a petition under Section 17(2) and Section 17(2A) of the Act. By
  Order No. 26 dated 23.3.77 the trial court decided that the rent pay-
  able was Rs.475 per month and the appellant was asked to deposit the .....__,
  arrears at the rate of Rs.315 per month by the 15th of each month
  commencing from April, 1977. The appellant contested the suit and
D filed a written statement claiming benefit under Section 17(4) of the
  Act pleading that it was the first default. The respondent landlady
  contested the same stating that no such relief can be granted as per the
  proviso to the Section since such a relief was already granted once and
  that at any rate the appellant did not comply with the order while
  making the deposit of the arrears by 15th of each month and on that
E grnund also no relief can be granted under Section 17(4). The trial
                                                                                1
  court decreed the suit and the first appellate court as well as the High
  Court dismissed the appeals preferred by the appellant.

          In this appeal firstly it is contended that though there was delay
    in paying the instalments as per Order dated 23.3.77 passed under
F   Sections 17(2) and 17(2A) the Court did not order striking off the
    defence as provided under Section 17(3) and therefore the delay must
    be deemed to have been condoned and consequently it must be held
                                                                                -
    that the appellant made the deposits as required by sub-sections (2)
    and (2A) of Section 17 and hence he is entitled to claim relief under
    Section 17 (4). The second contention is that the default which is the
G   subject matter of Title Suit No. 3/76 should be treated as the first
    default inasmuch as the relief granted in Title Suit No. 84/73 in respect
    of the default for the period from May to August, 1973 was not one
    under Section 17( 4) since the suit was decreed by way of compromise.       r
          When this matter came up before another Bench of this Court
H   consisting of two Hon'ble Judges, in support of the second contention,
                J.L. VARANDANI v. SMT. MUKHERJEE [REDDY. J.]               613


~_>..--reliance was placed on Jagan Nath v. Ram Kisha~ Das &An_'·: [1985] 2       A
      SCR 388, (a decision of three-Judges) where a s1m!lar prov1s10n m the
      Delhi Rent Control Act, 1958 was considered in a case where the
      earlier suit was withdrawn. The Bench felt that the provision was
      construed in a narrow and technical sen~e and referred this matter to a
      Bench of three Judges and that is how this matter has come up before us.
                                                                                  B
           All the three courts below have held that the appellant did not
     make the deposits before 15th day of each month as per the order
     dated 23.3.77 passed under Section 17(2) and Section 17(2A). Unless
     such a deposit is duly made no relief can be granted under Section
     17(4) of the Act. At this stage it becomes relevant to refer to the
     provisions of Section 17. Section 17 reads as under:
                                                                                  c
                 "S. 17. When a tenant can get the benefit of protection
                 against eviction-( I) 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       D
                 on him or where he appearS in the suit or proceeding with-
                 out the writ of summons being served on him, within one
                 month of his appearance deposit in court or with the Con-
                 troller 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             E
                 period subsequent thereto up to the end of the month pre-
                 vious to that in which the deposit or payment is made
                 together with interest on such amount calculated at ihe 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,        F
                 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
                  p;ryable by tl•e tenant, the tel}ant shall within the time      G
                 -speCified in sub-section (-1), deposit in court the amount
                  admitted by him to be due from him together with an appli-
                 cation to the Court for determination of the rent payable.
                  No such deposit shalJ be accepted unless it is accompanied
                  by an application for determination of the rent payable. On
                 receipt of such application, the Court shall-                    H
    614             SUPREME COURT REPORTS            I1990] 3 S.C.R.
               (a) having regard to the rate at which rent was last
A
               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, specifyi11g the
               amount, if any, due from the tenant and thereupon
B              the tenant shall, within one month of the date of such
               preliminary order, deposit in court or pay to the land-
               lord 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
c              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 adjus-
D              ted 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,-                              )-._ ·~
E
               (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
F              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;
G
                Provided that where payment is permitted by instal-
          ments such sum shall include all amounts, calculated at the
          rate of rent for the period of default including the period · 7 - · r
          subsequent thereto upto the end of the month previous to
          that in which the order under this sub-section is to be made
H         with interest on any such amount calculated at the rate
                   J.L. VARANDANI v. SMT. MUKHERJEE [REDDY. J.J              615


                    specified in sub-section ( l) from the date when such
   ->-              amount was payable up to the date of such order.                A


                          (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)   [l
                    or sub-section (2), and no application for permission to pay
                    in instalment under clause (b) or 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.
                                                                                    c

   -
                          (3) If a 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 allowed under clause (a) of sub-section (2A), or fails to
                    deposit or pay any instahnent permitted under clause (b) of     o
                    sub-section (2A) within the time fixed therefor, the Court
                    shall order the defence against delivery of possession to be
                    struck out and shall proceed with the hearing of the suit.

                          (4) If a tenant makes deposit or payment as required
                    of sub-section (1), sub-section (2) or sub-section (2A) no      E
                    decree or 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 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       F
                    relief 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."

          The learned counsel for the appellant submits that assuming that there    G
          was delay in making the deposit of instalments of the rent as per the
          said order, the follow-up action by the Court as contemplated under
_ -._,.- Section 17(3) namely striking off the defence has not been ordered and
      · therefore it should be presumed that the delay was condoned or
          deemed to have been condoned. We are unable to agree with this
        · submission of the learned counsel for the appellant. As already           H
    616                 SUPREME COURT REPORTS        [1990] 3 S.C.R.

  mentioned, the appellant filed petition under Sections 17(2) and
A 17(2A) pending the present suit disputing the amount of rent and also--~~
  seeking permission to deposit the rent by way of instalments. The rent
  was held to be Rs.475 per month and the same was directed by the
  Court to be paid by monthly instalments before 15th of each month but
  the appellant did not make the deposits duly. Admittedly no applica-
B tion was made for extension of time. Section 17(2) provides that if in
  any suit there is dispute as to the amount of rent payable the tenant
  within the time specified shall deposit in court the amount admitted by
  him to be due from him with an application for determination of rent. ~
  Section 17(2A) provides for extension of the specified time and also to
  deposit the rent by way of instalment under the orders of the Court.
  Section 17(2B) lays down that no application for extension of time
c shall be entertained unless it is made before the expiry of the specified
  time under sub-section(l) or sub-section (2) and it further lays down
  that no application for permission to pay in instalments under clause ..-
  (b) of sub-section (2A) shall be entertained unless it is made before the
  expiry of the time specified. Section 17(3), on which reliance is placed
D by the appellant lays down that if a 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 allowed
  under clause (a) of sub-section (2A), or fails to deposit or pay any
  instalment permitted under clause (b) of sub-section (2A), the Court
  shall order the defence against delivery of possession to be struck out ~
E and shall proceed with the hearing of the suit. We have already noted · ~ ·
  that no application for extension of time was made. The mere fact that
  the court has not passed an order striking off the defence as contemp-
  lated under Section 17(3) because of the tenant's failure to deposit


F
  within the time specified in the order passed under Sections 17(2) and
   17(2A) does not necessarily lead to a presumption that the time was
  extended.  On the other hand Section (2B) which is a mandatory provi-
                                                                        •
  sion laid down that 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
  in sub-section (1). Therefore in the absence of such application it
  cannot be contended that the Court is deemed to have condoned the
G delay. That being the position it must be held that the appellant tenant
  failed to make the deposit of the rent as per Order No. 26 dated
  21.3. 77 passed under Section 17(2) and 17(2A). Since such a deposit is
  "1e condition precedent for seeking relief under Section 17(4) the - .,..- _
  appellant who has not fulfilled the same cannot claim the said relief.
  On this ground alone the orders of the courts below have to be con-
H firmed. In this view of the matter we do not propose to go into the
                 J.L. VARANDANI v. SMT. MUKHERJEE [REDDY, J.]            617

       second contention in this. appeal. It may be decided in any other        A
 -'./· appropriate case where the question directly arises. The premises in
       question is in Calcutta City where accommodation problem is very
       acute. Therefore the appellant is given time till 31st March, 1991 to
       vacate the premises on filing the usual undertaking within three weeks
       from today. The appeal is accordingly dismissed. In the circumstances
                                                                                B
       of the case there will be no order as, to costs.

       T.N.A.                                              Appeal dismissed.




, .A