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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7849 OF 2019 (ARISING OUT OF SLP (C) NO.24280 OF 2019)

(DIARY NO. 22352 OF 2017)

BIJAY KUMAR SINGH & OTHERS .....APPELLANT(S)

VERSUS

AMIT KUMAR CHAMARIYA & OTHERS .....RESPONDENT(S)

WITH

CIVIL APPEAL NO. 7850 OF 2019 (ARISING OUT OF SLP (C) NO.24284 OF 2019)

(DIARY NO. 22504 OF 2017)

J U D G M E N T

HEMANT GUPTA, J.

1. The challenge in the present appeals is to an order passed by the

High  Court  of  Calcutta  on  13.05.2016  in  two separate  eviction

petitions filed by the respondent herein against two tenants.   

2. Learned Single Judge has set aside the order dated 10.08.2011

whereby an application filed by the appellant under Section 7(2) of

the West Bengal Premises Tenancy Act, 19971 was allowed.  

1 For short the “Act”

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3. The  brief  facts  leading  to  the  present  appeals  are  that  the

respondent filed an eviction petition against the appellants on the

ground of non-payment of arrears of rent in respect of two shops

alleging that initially, Sudama Singh was tenant on the monthly

rent of Rs.45/- and Rs.25/- per month but now the rent payable is

Rs.306/- and Rs.174/- per month. It is the case of the respondent

that  a  Receiver  was  appointed  in  Money  Execution  Case  No.

23/1961 and the said Receiver was discharged vide order dated

10.02.2009. The respondent demanded arrears of rent but since

the amount of arrears at the rate of Rs.306/- per month was not

paid,  the  petition  for  eviction  was  filed.  The  appellant  did  not

deposit any rent but filed an application to determine the arrears

of rent asserting that they have paid monthly rent up to the month

of  June  1993  to  the  Receiver.  However,  the  Receiver  has  not

informed  the  appellants  as  to  the  person  authorised  to  collect

rent, therefore, they could not pay it.  

4. The learned Trial  Court  allowed the application,  determined the

arrears  of  rent  and granted time to pay the arrears  of  rent  so

determined. The learned Single Bench set aside the order passed

by the Trial Court as it chose to follow the order passed in CO 1941

of 2013, though another Coordinate Bench had taken a contrary

view in CO 55 of 2014.  Learned Single Judge found that in the

order  passed  by  Coordinate  Bench  in  CO  55/2014,  no  lis  was

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decided and that no principle was laid down which may give light

to  the  learned  Trial  Court  to  decide  the  pending  litigation.

Therefore, the learned Single Judge, decided the matter on merits

rather than referring it to the larger Bench for decision.  

5. In  this  background,  the  argument  of  the  learned  counsel

appearing  for  the  appellant  is  that  the  High  Court  has  not

maintained judicial decorum and should have referred the matter

to the larger Bench to decide the scope and ambit of Section 7(2)

of the Act. We find that since a short question of law arises for

consideration,  therefore,  without  going  into  the  question  as  to

whether learned Single Judge should have referred the matter to

the  larger Bench or not, the question to be decided by this Court

is to bring certainty in respect of scope of Section 7 of the Act.

6. Learned counsel for the appellant contends that the provisions of

Section 7(2) of the Act are  pari-materia to Section 17(2) of West

Bengal Premises Tenancy Act, 19562 which was the subject matter

of consideration in an earlier judgment of this Court reported as

B.P.  Khemka  Pvt.  Ltd.  v.  Birendra  Kumar  Bhowmick3.

Learned counsel for the appellant argued that the Limitation Act,

1963 would be applicable to seek condonation of delay in filing an

application under Section 7(2) of the Act. The learned Counsel also

placed  reliance  upon  judgments  reported  as Shibu  Chandra

2 for short the “1956 Act” 3 (1987) 2 SCC 407

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Dhar v.  Pasupati  Nath Auddya4  and  Gaya Prasad Kar  v.

Subrata Kumar Banerjee5

7. On the other hand, learned counsel for the respondent submitted

that the judgments in B.P. Khemka, Shibhu Chandra Dhar and

Gaya Prasad Kar deal with Section 17 of the 1956 Act, wherein,

sub section (2A) empowers the court to extend the time specified

in  sub  section  (1)  or  sub  section  (2).  Sub  section  (2A)  is  an

overriding provision starting with a non obstante clause.  There is

no such equivalent provision in the Act which was enacted while

repealing the 1956 Act. It is argued that B. P. Khemka has been

considered by a three Judge Bench judgment reported as  Arjun

Khiamal Makhijani Etc vs Jamnadas C. Tuliani & Ors. Etc6

and distinguished the same in view of sub section (2A) of the 1956

Act.

8. In another three Judge Bench judgment reported as  Nasiruddin

and Ors. vs Sita Ram Agarwal7,  it was held that in terms of

clause (a) of sub-section (2A) of Section 17 of the 1956 Act, the

requisite  power  to  extend  the  time  for  deposit  of  rent  on  an

application made by the tenant is without any restriction. It was

further held that the question of application of Section 5 of the

Limitation Act, 1963 would arise, if the appellant or the applicant

satisfies the court that he had sufficient cause for not making the

appeal  or  application  within  such  period.  Section  13(4)  of  the

4 (2002) 3 SCC 617  5 (2005) 8 SCC 14(3) 6  (1989) 4 SCC 612 7  (2003) 2 SCC 577

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Rajasthan  Premises  (Control  of  Rent  and  Eviction)  Act,  19508

provides that the tenant shall on the first date of hearing or, on or

before such date, shall deposit in court or pay to the landlord in

court  from  the  date  of  such  determination   the  amount  so

determined  or  within  such  further  time  not  exceeding  three

months as may be extended by the Court. Thus, sub-section (4)

itself provides for limitation of a specific period within which the

deposit has to be made, which cannot exceed three months as

extended by this Court. The deposit by the tenant within 15 days

is  not  an  application  within  the  meaning  of  Section  5  of  the

Limitation  Act,  1963.  Since  the  deposit  does  not  require  any

application,  therefore,  the  provisions  of  Section  5  cannot  be

extended where the default takes place in complying with an order

under sub-section (4) of Section 13 of the Act. It is thus contended

that provisions of the Rajasthan Act are close to the language of

Section 7 of the Act. Therefore, the Limitation Act is not applicable

to seek condonation of delay in filing an application under Section

7(2) of the Act. It was held as under:

“15. B.P. Khemka [(1987) 2 SCC 407 : AIR 1987 SC 1010] arose out of the West Bengal Premises Tenancy Act, 1956 (in short “the West Bengal Act”). In the said case the tenant committed default  in payment of  arrears of rent and the landlord brought a suit for eviction on the ground of default. While  the  suit  was  pending,  the  West  Bengal  Premises Tenancy  (Amendment)  Ordinance  6  of  1967,  which  was replaced  by  the  West  Bengal  Premises  Tenancy (Amendment) Act 30 of 1969 came to be promulgated with effect from 26-8-1967. The Act gave a retrospective effect

8 for short the “Rajasthan Act”.

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to  the  amendments  by  providing  that  the  amendments made by Section 2 of  the Ordinance shall  have effect in respect of all suits including appeals which were pending at the  date  of  commencement  of  the  Ordinance.  The amendments inter alia enabled tenants who were in default to  apply  to  the  court  and  pay  the  arrears  of  rent  in instalments and thereby avert their eviction. In pursuance thereof,  the  tenant  deposited  the  rent.  However,  he subsequently  committed  default  in  paying  monthly  rent. Consequently,  the defence  was  struck off on  the ground that in paying the rent for the months of September 1968 and March 1969, there had been a delay of 44 days and 6 days  respectively,  which  was  in  contravention of  Section 17(1) of the West Bengal Act.

xxx xxx xxx

17. This Court in B.P. Khemka case [(1987) 2 SCC 407 : AIR 1987  SC  1010]  while  interpreting  the  provisions  of  sub- section (4) held that the proviso makes it clear that if the subsequent  default  is  for  a  period  of  4  months  within  a period of 12 months, the tenant can claim relief under the sub-section once again. Since the default was less than 40 days, this Court held that under the said proviso, the delay could be condoned.”

9. The reliance is placed upon Monoj Lal Seal v. Octavious Tea &

Industries Ltd9, E. Palanisamy v. Palanisamy10, and Balwant

Singh  v.  Anand  Kumar  Sharma11 as  to  when  the  statutory

provisions  can  be  said  to  be  directory  or  mandatory. Learned

counsel for the respondent referred to various orders passed by

the Calcutta High Court, taking a view that non-deposit of arrears

of rent will result in dismissal of the application under Section 7 of

the Act.  

10. We do not find any error in the order passed by the High Court.

9 (2015) 8 SCC 640 10 (2003) 1 SCC 123 11 (2003) 3 SCC 433

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One of the grounds of the eviction in terms of the Section 6(1)(b)

of the Act is default in payment of rent for three months within the

period of  twelve  months,  or  for  three rental  periods  within  the

period of three years where the rent is not payable monthly.  It is

Section  7  of  the  Act  which  provides  for  an  opportunity  to  the

tenant to make the payment of arrears of rent, to avoid an order

of eviction on account of its non-payment. The relevant provisions

of Section 7 of the Act read as under:  

“7.  When a tenant can get the benefit of protection against eviction.—(1) (a) On a suit being instituted by the landlord for eviction on any of the grounds referred to in Section 6, the tenant shall, subject to the provisions of sub- section (2) of this section, pay to the landlord or deposit with the Civil Judge all arrears of rent, calculated at the rate at which it was last paid and upto the end of the month previous to that  in  which the payment is  made together with interest at the rate of ten per cent per annum.  

(b)  Such  payment  or  deposit  shall  be  made  within  one month of the service of summons on the tenant or, where he appears in the suit without the summons being served upon him, within one month of his appearance.  

(c)  The  tenant  shall  thereafter  continue  to  pay  to  the landlord or deposit with the Civil Judge month by month by the 15th of each succeeding month, a sum equivalent to the rent at that rate.

(2) If in any suit referred to in sub-section (1), there is any dispute as to the amount of the rent payable by the tenant, the  tenant  shall,  within  the  time  specified  in  that subsection,  deposit  with  the  Civil  Judge  the  amount admitted  by  him  to  be  due  from  him  together  with  an application for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application  for  determination  of  the  rent  payable.  On receipt  of  the  application,  the  Civil  Judge  shall,  having regard  to  the  rate  at  which  rent  was  last  paid  and  the period  for  which  default  may  have  been  made  by  the

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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  Civil Judge only once and the period of such extension shall not exceed two months.  

(3) If the tenant fails to deposit or pay any amount referred to  in  sub-section  (1)  or  sub-section  (2)  within  the  time specified therein or within such extended time as may be granted,  the  Civil  Judge  shall  order  the  defence  against delivery of possession to be struck out and shall proceed with the hearing of the suit.  

(4) If the tenant makes deposit or payment as required by sub-section (1) or sub-section (2), no order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant, shall be made by the Civil Judge, but he may allow such cost as he may deem fit to the landlord:  

Provided that the tenant shall not be entitled to any relief under this subsection if, having obtained such relief once in respect of the premises, he again makes default in payment of rent for four months within a period of twelve months or for  three  successive  rental  periods  where  rent  is  not payable monthly.”

11. The  Act  has  repealed  the  1956  Act  which  had  almost  similar

provisions as contained in Section 7(1) and 7(2) of the Act, but the

material distinction is of sub sections (2A) and (2B) inserted by

West Bengal Premises Tenancy (Amendment) Ordinance No. IV of

1967.  This  was  replaced  by  West  Bengal  Premises  Tenancy

(Amendment) Act 30 of 1969 with effect from 26.08.1967, giving

retrospective  effect  to  the  amendments  which  were  made

applicable  to  all  suits,  including  appeals,  which  were  pending

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before commencement of the Ordinance. Sub sections (2A) and

(2B) so inserted read as thus:  

          “(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 or default including the period subsequent thereto up to the end of the month previous to that in which the order under this sub-section is to be made with interest on any such amount calculated at the rate specified in sub-section (1) from the date when such amount was payable up to the date of such order.

(2B) No application for extension of time for the deposit or payment of  any  amount  under  clause  (a)  of  sub-section  (2A)  shall  be entertained unless it is made before the expiry of the time specified therefor in sub-section (1) or sub-section (2), and no application for permission to pay in instalment under clause (b) of sub-section (2A) shall be entertained unless it is made before the expiry of the time specified in sub-section (1) for the deposit or payment of the amount due on account of default in the payment of rent.”

12. This  Court,  while  considering  the  above  provisions  of  the

1956 Act in B.P. Khemka held as under:  

“11. Since the Ordinance came to be replaced long after by the Act, Section 5 of the Ordinance was not reproduced in  the  Act  because  it  had  served  its  purpose.  What  is, however, of significance is that Section 5 of the Ordinance entitled the appellant to file an application under Section 17(2-A)(b),  in the suit filed by the first  respondent which was pending then. Unfortunately, the High Court has looked only into the Act and not the Ordinance and that is how Section 5 of the Ordinance has escaped its notice. When Section 17(2-A) and Section 5 of  the Ordinance are read conjointly it may be seen that it was the intention of the legislature to extend the benefit of subsection (2-A) to all pending suits and appeals irrespective of the fact whether

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the time limit of one month prescribed under Section 17(1) had  expired  or  not.  No  other  construction  is  possible because any other construction would have the effect  of rendering otiose Section 5 of the Ordinance…..

12. If it was the intention of the legislature to restrict the benefits given under Section 17(2-A) to only those tenants against whom suits had been filed within one month prior to  the  promulgation  of  the  Ordinance,  there  was  no necessity to give retrospectivity to sub-section (2-A) under Section 5 of the Ordinance. It has, therefore, to be held that all tenants against whom suits or appeals were pending on the date of the promulgation of the Ordinance were entitled to  seek  the  benefit  of  Section  17(2-A)  by  filing  an application within one month from the date of promulgation of the Ordinance. The High Court was, therefore, in error in holding that the application under Section 17(2-A)(a) was itself  not  maintainable.  If  the High Court's  view is  to  be accepted it would then amount to asking the appellant to perform the impossible i.e. asking the appellant to file an application under Section 17(2-A)(b) which came into force on August 26, 1967 within one month from April 6, 1967 when  the  suit  summons  was  served.  Therefore  the  first question has to be answered in favour of the appellant. The resultant  position  would  then  be  that  insofar  as  the payment of arrears for the period ending February 29, 1968 is concerned, the appellant had complied with the orders of the  court  under  Section  17(2-A)(b)  and  was  therefore entitled to claim the benefit of Section 17(4).”

13. The  said  judgment  was  followed  in  Shibu  Chandra  Dhar

considering the 1956 Act. The judgment in  Gaya Prasad Kar is

also interpreting the provisions of the 1956 Act.  

14. However, another three Judge Bench judgment in Arjun Khiamal

while examining  provisions  of  the  Bombay  Rents,  Hotel  and

Lodging House Rates Control Act,194712 considered the judgment

reported  as  Vatan  Mal  v.  Kailash  Nath13,  dealing  with the

Rajasthan Act, held that Section 13(a) of the Rajasthan Act was to

confer benefits on all tenants against whom suits for eviction on

12 for short the “Bombay Act”  13 (1989) 3 SCC 79

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the ground of  default  of  payment of  rent  were  pending.   Such

judgment  was  not  found to  be  attracted in  view of  mandatory

provisions contained in Section 12(3)(a) of the Bombay Act. The

judgment in B.P. Khemka was found not to be of any assistance

for the same reason.

15. This  Court  in  Nasiruddin also  considered  the  question  as  to

whether  provisions  of  a  statute  being  directory  or  mandatory

would depend upon the language implied therein, and referred to

a  judgment  reported  as  Union  of  India  v.  Philip  Tiago  De

Gama14.  This  Court also  examined  the  judgment  in

Shyamcharan Sharma v. Dharamdas15,  wherein it was found

that  there  is  no  restriction  in  M.P.  Accommodation  Control  Act,

196116 to condone delay to deposit the arrears of rent, whereas,

the discretion available to the court under the Rajasthan Act is

limited. For the same reason, it  was found that in terms of the

Delhi Rent Control Act, 195817, the court has power to extend the

time to deposit arrears of rent. This Court held as under:  

“31. We  may  further  notice  that  in Shibu  Chandra Dhar v. Pasupati  Nath  Auddya [(2002)  3  SCC  617]  which also arose out of the West Bengal Premises Tenancy Act, it was held that under sub-section (2-A) of Section 17 of the Act,  the  court  has  a  power  to  extend  the  period  for depositing the rent in the event of default by the tenant to deposit the rent within a stipulated time. This Court further held that if a court has no power to extend the time, then in

14 (1990) 1 SCC 277 15 (1980) 2 SCC 151 16 For short the “M.P. Act” 17 For short the “Delhi Act”

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cases of small default beyond the reason of the tenant, the time cannot be extended.

32. It  is  interesting  to  note  that  in Ganpat Ladha v. Sashikant  Vishnu  Shinde [(1978)  2  SCC  573  : (1978)  3  SCR  198]  this  Court  while  interpreting  similar provisions  occurring  in  Section  12(3)(a)  of  the  Bombay Rents,  Hotel,  Lodging  House  Rates  Control  Act,  1947 (hereinafter  referred to  as  “the Bombay Rent  Act”)  held: (SCC p. 580, para 11)

“Section  12(3)(b)  does  not  create  any  discretionary jurisdiction in the Court.  It  provides protection to the tenant on certain conditions and these conditions have to  be  strictly  observed by  the  tenant  who seeks  the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of courts.”

Thus under the Bombay Rent Act only on certain grounds the court can exercise its discretionary power and not on other grounds.”

16. While  examining as to when the provision of  a statute is to be

treated as directory or mandatory, this Court held in Nasiruddin

case that if an act is required to be performed by a private person

within a specified time, the same would ordinarily be mandatory

but  when  a  public  functionary  is  required  to  perform  a  public

function within a time-frame, the same will be held to be directory

unless  the consequences thereof  are specified.   It  was held  as

under:  

“37. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in  a  given  case  the  court  can  iron  out  the  fabric  but  it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision is plain and unambiguous. It  cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also

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necessary  to  determine  that  there  exists  a  presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. It may be true that use  of  the  expression  “shall  or  may”  is  not  decisive  for arriving at a finding as to whether the 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. Yet there is another aspect of the matter which cannot be lost sight of. It is a well-settled principle that if an act is required  to  be  performed  by  a  private  person  within  a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefor  are specified. In Sutherland's Statutory Construction, 3rd Edn., Vol. 3, at p. 107 it is pointed out that a statutory direction to private individuals  should  generally  be  considered  as  mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory  construction  should  be  given  to  a  statutory provision  may  be  determined  by  an  expression  in  the statute itself of the result that shall follow non-compliance with the provision.

xxx xxx xxx

40. Thus, on analysis of the aforesaid two decisions we find that wherever the special Act provides for extension of time or condonation of default, the court possesses the power therefor, but where the statute does not provide either for extension of time or to condone the default in depositing the rent  within  the stipulated period,  the court  does not have the power to do so.

41. In  that  view  of  the  matter  it  must  be  held  that  in absence of such provisions in the present Act the Court did not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent.”

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17. Further, a three Judge Bench of this Court in a judgment reported

as Union of India and Others v. A. K. Pandey18 held as under:  

“15. The principle seems to be fairly well settled that prohibitive or negative words are ordinarily indicative of  mandatory  nature  of  the  provision;  although  not conclusive.  The  Court  has  to  examine  carefully  the purpose of such provision and the consequences that may follow from non-observance thereof. If the context does not show nor demands otherwise, the text of a statutory  provision  couched  in  a  negative  form ordinarily  has  to  be  read  in  the  form  of  command. When the  word  “shall”  is  followed by  prohibitive  or negative words, the legislative intention of making the provision  absolute,  peremptory  and  imperative becomes  loud  and  clear  and  ordinarily  has  to  be inferred as such. There being nothing in the context otherwise,  in  our  judgment,  there  has  to  be  clear ninety-six hours' interval between the accused being charged for which he is to be tried and his arraignment and interval time in Rule 34 must be read as absolute. There is a purpose behind this provision: that purpose is that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the  charge  or  charges  for  which  he  is  to  be  tried, decide about  his  defence and ask the authorities,  if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety-six hours.”

18. The judgment in  B.P. Khemka is in respect of a statute giving

power to condone delay without any fetters.  The amendments

carried with retrospective effect  inter alia enabled tenants who

were in default to apply to the court and pay the arrears of rent

in instalments and thereby avert their eviction. In pursuance of

the  amendments,  the tenant  deposited the rent.  However,  he

subsequently  committed  default  in  paying  monthly  rent.

18 (2009) 10 SCC 552

15

Consequently, the defence was struck off on the ground that in

paying the rent for the months of September 1968 and March

1969, there had been a delay of 44 days and 6 days respectively,

which was in contravention of Section 17(1) of the West Bengal

Act. This Court held that the proviso makes it clear that if the

subsequent default is for a period of 4 months within a period of

12  months,  the  tenant  can  claim relief  under  the  sub-section

once again. Since the default was less than 40 days, this Court

held that under the said proviso, the delay could be condoned.

Provisions of M.P. Act and of Delhi Act are also similar.

19.  Sub section (1) of Section 7 of the Act relieves the tenant from

the ejectment on the ground of non-payment of arrears of rent if

he  pays to  the landlord  or  deposits  it  with  the Civil  Judge all

arrears of rent, calculated at the rate at which it was last paid

and up to the end of the month previous to that in which the

payment is made together with interest at the rate of ten per

cent per annum. Such payment or deposit shall be made within

one month of the service of summons on the tenant or, where he

appears in the suit without the summons being served upon him,

within one month of his appearance.  

20. Therefore, sub section (1) deals with the payment of arrears of

rent when there is no dispute about the rate of rent or the period

of arrears of rent. Sub section (2) of the Act comes into play if

there is dispute as to the amount of rent including the period of

16

arrears payable by the tenant.  In that situation, the tenant is

obliged to apply within time as specified in sub section (1) that is

within one month of the receipt of summons or within one month

of appearance before the court to deposit with the Civil Judge the

amount admitted by him to be due. The tenant is also required to

file an application for determination of  the rent  payable.  Such

deposit  is  not to be accepted, unless it  is  accompanied by an

application  for  determination  of  rent  payable.   Therefore,  sub

section (2) of the Act requires two things, deposit of arrears of

rent at the rate admitted to be due by the tenant along with an

application  for  determination  of  the  rent  payable.  If  the  two

conditions are satisfied then only the Court having regard to the

rate at which rent was last paid and for which tenant is in default,

may make an order specifying the amount due.  After  such a

determination the tenant is granted one month’s time to pay to

the landlord the amount which was specified.  The proviso of the

Act,  limits  the  discretion  of  the  court  to  extend  the  time  for

deposit of arrears of rent.  The extension can be provided once

and not exceeding two months.

21. Sub section (3) provides for consequences of non-payment of rent

i.e. striking off the defence against the delivery of the possession

and to  proceed  with  the  hearing  of  the  suit.  Such  provision  is

materially  different  from sub sections  (2A)  and (2B)  which  was

being examined by this Court in B.P. Khemka. Sub sections (2A)

17

and (2B) of Section 17 of 1956 Act confer unfettered power on the

court  to  extend  the  period  of  deposit  of  rent,  which  is

circumscribed by the proviso of sub sections (2) and (3) of Section

7  of  the  Act.  Therefore,  the  provisions  of  sub  section  (2)  are

mandatory and required to be scrupulously followed by the tenant,

if the tenant has to avoid the eviction on account of non-payment

of arrears of rent under Section 6 of the Act. There is an outer limit

for extension of time to deposit of arrears of rent in terms of the

proviso  to  sub  section  (2)  of  Section  7  of  the  Act.  The

consequences flowing from non-deposit of rent are contemplated

under sub section (3)  of  Section 7 of  the Act.  Therefore,  if  the

tenant fails to deposit admitted arrears of rent within one month

of receipt of summons or within one month of appearance without

summons and also fails to make an application for determination

of the disputed amount of rate of rent and the period of arrears

and the subsequent non-payment on determining of the arrears of

rent,  will  entail  the eviction of the tenant. Section 7 of the Act

provides for a complete mechanism for avoiding eviction on the

ground of arrears of rent, provided that the tenant takes steps as

contemplated under sub section (2) of Section 7 of the Act and

deposits  the  arrears  of  rent  on  determination  of  the  disputed

amount.  The  deposit  of  rent  along  with  an  application  for

determination of dispute is a pre-condition to avoid eviction on the

ground of non-payment of arrears of rent. In view thereof, tenant

will not be able to take recourse to Section 5 of the Limitation Act

18

as it is not an application alone which is required to be filed by the

tenant but the tenant has to deposit admitted arrears of rent as

well.

22. In view of the judgment in Nasiruddin, we do not find any error

in the order passed by the learned Single Judge. The Trial Court

shall proceed with the suit in accordance with law. The appeals

are dismissed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; OCTOBER 22, 2019.