BASAB BASU AND ORS. Vs. BHUPATT RANJAN SEN
LAWS(CAL)-1976-1-38
HIGH COURT OF CALCUTTA
Decided on January 08,1976

Basab Basu And Ors. Appellant
VERSUS
Bhupatt Ranjan Sen Respondents

JUDGEMENT

A.P. Bhattacharya, J. - (1.)In this revisional application a Rule was issued in favour of the applicant and the same is directed against the order of the First Additional Munsif at Alipore passed in Title Suit No. 9 of 1974 on 16th July, 1974. This was a suit between the landlord and tenant. The tenant admitted certain amount of rent to be due and made an application under Sec. 17(2) of the West Bengal Premises Tenancy Act, 1956. The tenant -defendant did not deposit the admitted rent within one month as specified under Sec. 17(2). The Court in making the order on the petition under Sec. 17(2) extended the time for deposit as specified in the above subsection and allowed the tenant -defendant time to make the deposit. This extension of time was obviously granted by the Court on the tenants application under sub -section (2A) made simultaneously with the application under Sec. 17(2) of the Act. The applicant challenged that the said order was contrary to law and is liable to be set aside. The learned Advocate in support of the Rule contends that the Court has no power to extend the time for deposit in Court of the admitted amount of rent which is required to be deposited within one month under Sec. 17(2) of the Act. The Rule is opposed on behalf of the opposite party and it is maintained that the Court has exercised its power properly under subsection (2A) of the said Sec. 17. On behalf of the applicant some decisions of this Court are being relied upon. They are decisions of Single Judges of this Court. One such decision is reported in : 76 C.W.N. 862 where a question arose as to be scope of applicability of Sec. 17(2). It was held in that decision that the application for determination of rent payable by the tenant should be accompanied by deposit of the amount admitted to be due from him and in the absence of such deposit the application could not be maintained. Another decision by the same Judge is cited before me in support of the proposition that the Court has no power under sub -section (2A) of the Act to extend the time for deposit in Court the amount admitted by the tenant to be due from him which is required to be deposited along with his application under Sec. 17(2). It is a decision reported in : 77 C.W.N. 492. This decision is exactly on the point which is raised in this Rule. The said decision of the Single Judge was followed in another decision of this Court reported in : 78 C.W.N. 579. The learned Advocate in support of the Rule has further relied upon a Division Bench decision of this Court reported in : 79 C.W.N. 1017 which decides the scope or applicability of Sec. 17(2). The burden of that decision is that application under Sec. 17(2) could not be considered by the Court unless three conditions as laid down in that decision are fulfilled. (a) There must be a dispute raised as to the amount of rent (b) the tenant must make deposit of all admitted arrears of rent within the statutory period and (c) the said deposit must be made along with the application under Sec. 17(2). It has been further held that this third element is an integral and essential part of the Sec. and unless this element is present the application cannot be considered as one under Sec. 17(2). In that decision however the question of Court's power of extending the time for deposit of admitted rent under Sec. 17(2) was not considered in the light of sub -section (2A) of Sec. 17. While opposing the Rule the learned Advocate for the opposite party relies upon a decision reported in, 73 C.W.N. 801 of a Division Bench of this Court. This identical question was discussed in the judgment of S.K. Mukherjee, and certain observations were made by his Lordship. The Rule in that case was discharged on a finding that the tenant did not comply with an order of the Court. In that view of the matter the application under Sec. 17(2A) of the Act was held to be not maintainable. S. K. Mukherjee, J. agreed with the order made by A.K. Janah, J. His Lordship made it clear that the observations which he was going to make were not necessary in view of the decision given. The observations of his Lordship are in the nature of obiter. Such observations do not have any binding effect on this Court. The learned Advocate however wants that this Court should consider the reason given in those observations of S.K. Mukherjea, J. Apart from the decisions of the Single Judges to which I have referred there is no other decision bearing on this issue. Different sub -sections of Sec. 17 will have to be construed by considering the Sec. as a whole. The learned Advocate while opposing the Rule contends that sub -section (2A) was intended to mitigate the rigors of subsection (1) and (2) of Sec. 17 in order to grant relief to the tenant and sub -section (2A) should therefore be liberally construed in favour of the tenant. It is further contended that power of the Court under sub Sec. (2A) is of very wide amplitude and it embraces and includes a power to grant extension even in the case of admitted rent which is required to be deposited under Sec. 17(2). There is no quarrel with the proposition that sub -section (2A) having been intended to grant relief to the tenant should be liberally construed in favour of the tenant provided that construction is permissible from the express provision of sub -section (2A) and also on a consideration of the other provisions of that section. Sub -section (2A) is in the following terms : "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." The contention is that the Court has unfettered power to extend the time specified in sub -section (1) or sub -section (2) for the deposit of any amount. Particular stress is laid on the use of expression 'any amount' so as to include the amount admitted by the tenant under Sec. 17(2) of the Act. In construing sub -section (2A) and the power conferred therein the Court is also to consider the specific provision of Sec. 17(2) which make it incumbent on the tenant not only to make deposit in Court of the admitted amount but also makes it further obligatory that the deposit shall be accompanied by an application for determination of the rent payable. If there is no conflict between the provision of sub -section (2A) and the specific provision of Sec. 17(2) then of course the contention of the learned Advocate should be accepted. But in my opinion there is such a conflict between the two subsections If the construction as proposed by the learned Advocate is put upon sub -section (2A) and if the Court has power to extend the deposit of admitted amount as provided in Sec. 17(2) the specific provision that the deposit was to be accompanied by an application for determination of rent would be rendered nugatory. The specific condition of sub -section (2) as has been pointed out in the Division Bench judgment reported in : 79 C.W.N. 1017 is that the deposit must be accompanied by an application for determination of the rent as otherwise it would not be a proper application under Sec. 17(2). In the absence of such a deposit it cannot be said that the application for determination of rent under Sec. 17(2) was made along with the deposit. The two conditions must be fulfilled before an application under Sec. 17(2) can be entertained. The Court's power of extension of time under sub -section (2A) is accordingly limited by the said restriction imposed specifically by the aforesaid conditions of sub -section (2). In that event there would be a conflict between the provisions of Sec. 17(2) and sub -section (2A). Sub -section (2A) certainly contemplates extension of time in respect of sub -section (2) inasmuch as there is scope for such extension of time having regard to the provisions of clauses (a) and (b) of sub -section (2) i.e. the later part of that sub -section. This limitation must be put to the powers of the Court conferred by sub -section (2A) as otherwise it would not be possible to make an application under Sec. 17(2) maintainable because of non -compliance of the two conditions laid down in sub -section (2). On a proper construction of Sec. 17(2) and sub -section (2A) I hold that the Court has no power to extend the time for deposit in Court of the amount admitted by him to be due. That power suffers from the limitation which is specifically imposed in sub -section (2) in order to make the application maintainable. In the observations made by S. K. Mukherjea, J. this aspect of the matters does not receive consideration. Those observations proceeded on the footing that since the Court has power to extend the statutory time imposed by Sec. 17(1) the Court has similar unlimited power to extend the time for deposit in all cases under Sec. 17(2).
(2.)On the above reasonings the conclusion is that the Court has no power to extend the time specified for depositing the admitted rent which is to accompany the application for determination of rent under Sec. 17(2) and in the instant case the Court has acted illegally in extending such time by exercise of his powers under sub -section (2A). The order of the Court below is therefore contrary to law and is liable to be set aside. The Rule is accordingly made absolute and the order dated 16th July, 1974 is set aside. The application under Sec. 17(2) is sent back to the Court below for appropriate orders in the light of the observation made hereinbefore.
There will be no order as to costs. Let the records be sent back to the trial Court at once.

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