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TMI Blog1987 (3) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... iled a suit for specific performance in the Court of the Sub Judge, Alipore and obtained a decree. The subsequent purchaser Chidanand Halder has filed an appeal against the judgment and decree in the said suit and the appeal is pending disposal before the High Court. Both the parties, claiming to have acquired title to the building of which the suit property forms a part have filed CMP Nos. 19671 and 32297 of 1986 seeking impleadment in this Appeal. The first respondent who succeeded to the suit property after the death of his father filed a suit against the appellant and its director the second respondent for eject- ment on the ground of default in payment of the monthly rent of ₹ 550 from March 1965 to July 1966. The appellant filed a written statement denying the default in payment of rent and also filed an application under Section 17(2) of the West Bengal Premises Act, 1956 (for short the Act) to seek the orders of the Court regarding the amount of rent payable to the landlord. During the pendency 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for those two months. This application was dismissed by the Trial Court on 30.7.70. It was thereafter the decree for eviction was passed. Resisting the application under Section 17(3) filed by the first respondent the appellant contended that since he had paid the arrears of rent as per the orders of the Court under Section 17(2A)(b), the first respondent's suit should be dismissed under Section 17(4) of the Act. The Trial Court rejected the contention and held that in view of the default in depositing the rent for the months of September 1968 and March 1969 within time i.e. before the 15th of the next succeeding month, the appellant had contravened Section 17(1) of the Act and therefore, the appellant was not enti- tled to protection under Section 17(4). The High Court went a step further and held that even the application under Section 17(2A)(b) was not maintainable and hence the appel- lant cannot raise a plea that he had paid the arrears of rent within time and as such the Trial Court should have dismissed the suit under Section 17(4). The High Court's reasoning is as under:- In our view, the application under section 17(2A)(b) was not also maintainable. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , contended that the decisions rendered by the trial court and the High Court are clearly unsustainable. On the contrary, the learned counsel for the first respondent argued that the trial court and the High Court had acted perfectly in accordance with law. Taking up the first question for consideration we find that the High Court has committed an error in failing to notice the overriding effect of Section 17(2A) and Section 5 of the Ordinance. Section 17(2A) begins with the words Notwithstanding anything contained in sub-section (1) or sub-section (2) on the application of the tenant, the Court may, by order and then sets out sub-sections (a), (b) and the Proviso. Then comes the all important Section 5 of the Ordinance which is in the following terms:- 5. Retrospective effect.--The amendments made by section 2 shall have effect in respect of all suits including appeals which are pending at the date of commencement of this Ordi- nance . (Emphasis supplied. ) 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 O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 17(2A) 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(2A)(b) 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(2A)(b) which came into force on 26.8.67 within one month from 6.4.67 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 in so far as the payment of arrears for the period ending 29.2.68 is concerned, the appellant had complied with the orders of the Court under Section 17(2A)(b) and was therefore entitled to claim the benefit of Section 17(4). The second question now remains for consideration. The trial court and the High Court have taken the view that the delayed payment of rent for the months of September 1968 and March 1969 attracted the striking out of the defence under Section 17(3) of the Act. Sub-sections (3) and (4) are worded as under:- (3) If a tenant fails to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... default is concerned, it is well within the limitations prescribed by the proviso to sub-section (4). The default is only for two months and that too in a period of 13 months. The appel- lant will, therefore, be entitled to the protection of the proviso. The trial court and the appellate court have failed to notice this aspect of the matter. Even if the proviso is viewed in a limited sense as being attracted only to those cases where there has been full and complete compliance with the provisions of sub- section (1) or (2) or (2A) of Section 17 and will not apply to a case as the one on hand, the appellant cannot be denied relief because the words shall order the defence against delivery of possession to be struck out occurring in Sec- tion 17(3) have to be construed as a directory provision and not a mandatory provision as the word shall has to be read as may . Such a canon of construction is warranted because otherwise the intendment of the Legislature will be defeated and the class of tenants for whom the beneficial provisions were made by the Ordi- nance and the amending Act will stand deprived of them. We may only refer to two decisions of this Court on this aspect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Delhi Rent Control Act, 1958. The Rent Control Act of Madhya Pradesh as well as the Rent Control Act of Delhi provided that if a tenant failed to make payment or deposit as required by the Section the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. In all these cases it has been uniformly held that the powers of discretion vested in the Rent Controller give him further right to condone the delay in deposit or payment of rent for the subsequent months. In this case the default was not one of non-payment of the arrears or the rent for the subsequent period. The default pertained to belated payments of rent for two months and was, therefore, a default in the technical sense than in the real sense and hence of an inconsequential nature. Having regard to the intendment of the Act and the nature of the provisions it can never be said that the defaults were of such a serious nature' as to warrant the court refusing to exercise its discretion and to feel constrained to strike out the defence. Such being the case the answer to the second question has also to be in favour of the appellant. The subordinate court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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