NDLI: B.p. Khemka Pvt. Lid. Vs. Birendra Kumar Bhowmick & Anr.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	1956- West Bengal Premises Tenancy Act
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	West Bengal Premises Tenancy Act, 1956 (12 of 1956)
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Others
Headnote	West Bengal Premises Tenancy Act, 1956-S.17(1), (2) and (2A)-West Bengal Premises Tenancy (Amendment) Ordinance VI of 1967-Ss.2 and 5-Rent-Default in payment of-Application before Court for payment of rent arrears in instalment under s. 17 (2A) (b) of 1956 Act (as introduced by Ordinance VI of 1967)-Time limit For filing-Reading s.17 (2A) (b) of 1956 Act conjointly with s.5 of the Ordinance-All tenants against whom suits or appeals pending on the date of promulgation of Ordinance entitled to benefit of s.17 (2A) by filing application within one month from the date of promulgation of the Ordinance-Limitation of one month prescribed by s.17( 1) of 1956 Act inoperative by virtue of s.5 of the Ordinance making it effective retrospectively. West Bengal Premises Tenancy Act, 1956-S.17(3) and (4) Proviso--Second default in payment of rent within the meaning of Proviso to s.17(4)-Must be for four months and above within 12 months-Tenant's defence against delivery of possession-Cannot be struck out if subsequent default is for a period of less than four months within 12 months-Eviction suit on ground of default liable to be dismissed-Section 17(3)-Word 'shall' being directory to be read as 'may'- Discretion of the Court-To order either striking out of defence or not-Depends upon the circumstances of the case and interest of justice-If court exercises discretion not to strike out defence--Court has further discretion to condone the default and extend time for payment of deposit. Interpretation of statutes-Remedial amendments-To be construed liberally-Duty of Court-To avoid conflict between two sections-Mendatory or directory-Whether 'shall' used as 'may'- Depends upon legislative intent.The first respondent filed a suit against the appellant and the second respondent for ejectment on the ground of default in payment of the monthly rent. The appellant denied the alleged default and filed an application under s.17(2) of the West Bengal Premises Tenancy Act, 1956 to seek the orders of the Court regarding the amount of rent payable to the landlord.During the pend ency of the proceedings the West Bengal Premises Tenancy (Amendment) Ordinance No. VI of 1967 (later replaced by the West Bengal Premises Tenancy (Amendment) Act 30 of 1969) came to be promulgated with effect from 26.8.67. By s.2 of the Ordinance subs. (2A) and (2B) to s.17 of the Act were inserted. Section 5 of the Ordinance gave retrospective effect to the amendments by providing that the amendments made by s.2 of the Ordinance shall have effect in respect of all suits including appeals which were pending on 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. To avail the benefit of amended provisions the appellant preferred an application within one month under s.(2A)(b) praying for payment of arrears of rent in instalments. The trial Court fixed the amount of arrears payable and allowed the payment thereof in three instalments. The appellant paid the entire arrears of rent on 31. 7. 70 covering the period ending with 29.2.68. In the meanwhile the first respondent had filed an application under s.17(3) for striking out the defence of the appellant against the delivery of possession of the demised premises for non-compliance with the terms of s.17(1). Resisting the application the appellant contended that since he had paid the arrears of rent as per the orders of the Court under s.17(2A)(b), the first respondent's suit should be dismissed under s.17(4). The trial Court allowed the application and struck out of the defence the appellant on the ground that in paying the rent for the months of September 1968 and March 1969 there had been a delay and thus the appellant had contravened s.17(1) and, therefore, he was not entitled to protection under s.17(4). The application filed by the appellant under s.148 CPC for extension of time for deposit of amount for the months of September 1968 and March 1969 was dismissed. The suit was decreed and the decree confirmed by the Appellate Court and the High Court. The High Court held that even an application under s.17(2A)(b) was not maintainable and hence the appellant cannot raise a plea that he had paid the arrears of rent within time and the trial Court should have dismissed the suit under s.17(4).
Judge	Hon'ble Mr. Justice S. Natarajan
Neutral Citation	1987 INSC 72
Petitioner	B.p. Khemka Pvt. Lid.
Respondent	Birendra Kumar Bhowmick & Anr.
SCR	[1987] 2 S.C.R. 559
Judgement Date	1987-03-06
Case Number	1262

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