Maliram Agarwala vs Bhudarmal Agarwala

A.K. Janah, J.—This rule is directed against the order No. 41 dated September 8, 1972 passed in Title Suit No. 10 of 1971 by the Munsif, 3rd Court, Howrah. The plaintiff opposite party instituted the said suit for eviction of the defendant petitioner. One of the grounds alleged in the plaint was default in payment of rent. It was alleged that the defendant was in default in payment of rent from the month of February, 1970, and the rent stated to be Rs. 250/- per month. The defendant denied the plaintiff''s allegation that the rent was Rs. 250/- per month but asserted that Rs. 125/- per month and that he had paid the rent upto June, 1970. Thus according to defendant''s own case the rent was in arrears from July, 1970. On or about 11th March, 1971 the defendant filed an application u/s 17(2) and 17(2A) of the West Bengal Premises Tenancy Act, praying for determination of the amount of arrears and permission to deposit the amount so determined, in easy instalments. By order No. 34 dated 19.4.72 the trial court directed the defendant to deposit the amount which was admittedly in arrears i.e. from July 1970 to February 1971 at the rate of Rs. 125/- per month, within one month from that date. The defendant however did not deposit the said amount. Thereafter the defendant''s application u/s 17(2) and 17 (2A) was taken up for bearing. The learned Munsif rejected the said application on the ground that the amount which was admittedly in arrears not having been deposited within the time allowed by the court the application was not maintainable. Against the said order, the defendant petitioner has obtained the present rule. Mr. Ranjit Kumar Banerjee learned Advocate appearing in support of the rule contended before us that the application which was filed by the defendant was a combined application u/s 17(2) and 17(2A) and therefore the trial court was not right in rejecting the said application as not maintainable on the ground that the admitted amount was not deposited by the defendant in terms of provisions of section 17(2). Mr. Banerjee further argued that the learned Munsif ought to have extended the time to deposit the admitted amount under the provision of section 17(2A). Having gone through the order passed by the learned Munsif we are unable to accept this contention of Mr. Banerjee. It appears that after the combined application u/s 17(2) and 17(2A) was filed by the defendant on 11th March, 1971 an order was made by the trial court on 19th April, 1972 directing the defendant to deposit the admitted amount of Rs. 1,000/- within one month from that date. Although the trial court has said that that order was passed under Sec. 17(2) (a) it seems to us that that order was, and could only be, passed under Sec. 17(2A). Because under Sec. 17(2) the tenant has to deposit the admitted amount of arrears along with an application within the time specified in Sec. 17(1). The trial court, therefore, could not, accept under Sec. 17(2A) extend the time for depositing the admitted amount of arrears under Sec. 17(2).

The other prayer which was made in the application filed by the defendant on the 11th March, 1971 was permission to pay the amount determined u/s 17(2) by easy instalments. Considerable arguments were advanced before us on the question as to whether or not the court has any power under sub-section (2A) of section 17 to grant instalments for payment of the amount determined under clause (b) of sub-section (2) of that section. In our view it is not necessary for us to decide this question in the present case. The question of determination of the amount under clause (b) of sub-section (2) of section 17 can only arise if the tenant complies with the requirements of sub-section (2) of Sec. 17 and if the application under sub-section (2) itself is maintainable. In the present case as we have noticed earlier the tenant not having complied with the order passed on 19th April, 1972 the application u/s 17(2) was not maintainable. In our opinion, therefore, the trial court was right in rejecting the application filed by the defendant on 11th March, 1971.

Before parting with this case I would like to add that I have had the advantage of reading the judgment) written by my Lord Mr. Justice Mukherjea. I fully agree with the reasons given and the conclusion arrived at by his Lordship in the said judgment.

The Rule is therefore discharged. But there will be no order as to costs.

S K. Mukherjea, J.

I agree that the order should be as proposed by my Lord. 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 has power under Sec. 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 Sec. 17(2). In S.K. Mukherjee Vs. Smt. Saila Bala Sein and Others, A.P. Das J. held that the Court has 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.

Sec. 17(2A) of the relevant statute says:

(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) * * * *

It will be seen at once that the power conferred on the Court is of the widest amplitude. The non obstante clause with which the Sub-section opens, the specific reference to Sub-sec. (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).

In view of the clear language of Sub-section (2A), it is difficult to see how it can be held that the operation of the Sub-section does not extend to Sub-sec. (2) of Sec. 17. In course of his judgment, A.P. Das, J. observed:

As regards time for deposit of the admitted amount it would appear that the time within which the admitted amount is to be deposited under sub-section (2) has not been specified in sub-section (2). but that time has been specified in sub-section (1). The time which has been specified in sub-section (2), is the time of one month from the date of the preliminary order within which the amount determined by the court under the preliminary order under clause (a) of sub-section (2) is to be deposited in court or paid to the landlord. Then again, the time specified in sub-section (2) also refers to the time fixed by the court under clause (b) of sub-section (2) within which the amount finally determined by the court is to be deposited or paid. Mr. Mukherjee lays stress on the words "any amount" in clause (a) of sub-section (2A) and contends that the words "any amount" are wide enough to include also the admitted amount referred to in sub-section (2). But when construed with reference to the time that can be ex-tended under sub-section (2A), these words cannot refer to the admitted amount required to be deposited under sub-section (2). These words with reference to sub-section (2) can only mean any amount that may be determined by the Court either under clause (a) or clause (b) of sub-section (2). The use of the disjunctive ''or'' between the words "sub-section (1)" and "sub-section (2)" in clause (a) of sub-section (2A) makes it clear that the Court can extend the time specified 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.

It is true that Sub-sec. (2) of Sec. 17 does not specify, in terms, any period of time within which the admitted amount has to be deposited or paid, but it does, by reference to Sub-sec. (1), import a period of one month from the date of service of summons. With utmost respect to the learned Judge, it is not correct, in my opinion to say that the time within which the admitted amount is to be deposited under Sub-sec. (2) has not been specified. In fact, clause (a) of Sub-sec. (2A) clearly recognises that a time has been specified not only in sub-section (1) but also in sub-section (2).

For the purpose of deposit required to be made under sub-section (2) the time is the same as the time specified for payment or deposit required to be made under sub-section (1). It is true that the amounts spoken of in sub-section (1) and in the different limbs of sub-section (2) are different. Be that as it may, clause (a) of sub-section (2A) of section 17 clearly says that the Court may extend the time for the deposit or payment of any amount referred to in sub-section (1) or sub-section (2). The diversity in the character or quantum of deposit or payment required to be made under sub-section (1) and sub-section (2) of section 17 does not, therefore, affect the scope of sub-section (2A) and it must be held that clause (a) of that sub-section operates in the entire field covered by sub-section (1) as well as sub-section (2). Having regard to the view I have taken, I am unable to subscribe to the construction which commended itself to the learned Judge. In my opinion, the Court has ample power under sub-section (2A) of section 17 to extend the time for the deposit of any amount admitted by the tenant to be due from him which he is required to deposit under sub-section (2) of Section 17. It only remains for me to add that the amendment by which sub-section (2A) was introduced into the statute was intended to benefit tenants and a construction which takes away that benefit in a large measure, should be avoided unless the statute clearly justifies such a construction.