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Anil Bandhu Sen Vs. Smt. Nagendra Bala Debi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 2032 of 1968
Judge
Reported inAIR1978Cal232
ActsWest Bengal Premises Tenancy Act, 1956 - Section 22(1)
AppellantAnil Bandhu Sen
RespondentSmt. Nagendra Bala Debi
Appellant AdvocateTapash Chandra Roy and ;Alak Chakraborty, Advs.;Sakti Nath Mukherjee, Adv.
Respondent AdvocateGopal Chandra Mukherjee, Adv.
DispositionAppeal allowed
Cases ReferredTahasildar Singh v. State of Uttar Pradesh
Excerpt:
- .....for making deposit and consequences of incorrect particulars in application for deposit, (1) no rent deposited under section 21 shall be considered to have been validly deposited under that section for purposes of clause (i) of sub-section (1) of section 13, unless deposited within fifteen days of the term fixed by the contract in writing for payment of rent or, in the absence of such contract in writing, unless deposited within the last day of the month following that for which the rent was payable'. provided that where any rent remitted to the landlord by postal money order withinthe time referred to in section 4 is returned to the tenant by the postal authorities as undelivered either on account of the landlord having rerused to accept payment thereof or for any other cause, such.....
Judgment:

Ganendra Narayan Ray, J.

1. This appeal arises against the judgment and decree passed by the Additional District Judge, 3rd Court, Howrah in Title Appeal No. 214 of 1967 affirming the judgment and decree passed by the learned Munisif. 5th Court, Howrah in Title Suit No. 169 of 1966. The defendant is the appellant in the instant appeal and the aforesaid Title Suit was instituted by the plaintiff respondent for eviction of the defendant from the suit premises under the West Bengal Premises Tenancy Act, 1956 on the ground of default in payment of rent and also for acts done contrary to provisions of Clauses (m), (n) and (p) of Section 108 of the T P. Act. The plaintiff also stated that she required the suit premises for her personal use and occupation, The trial court held that the deposit of rent for the month of Oct. 1964 with the Rent Controller was invalid deposit and all subsequent deposits followed by the said invalid deposit were invalid. Accordingly the defendant defaulted in payment of rent and was liable to be evicted under the West Bengal Premises Tenancy Act. The trial Court however negatived the case of the plaintiff that the defendant had done acts contrary to provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. Against the said judgment and decree of the trial court the defendant preferred an appeal being Title Appeal No. 214 of 1967 in the 3rd Court of the Additional District Judge, Howrah but the said appeal was dismissed and the judgment and decree of the trial court was confirmed on appeal. As aforesaid, against the said appellate decree, the instant appeal has been preferred to this Court by the defendant appellant.

2. Mr. Tapash Chandra Ray the learned Advocate for the appellant submits that after the West Bengal Premises Tenancy (Second Amendment) Act, 1969, the deposit made by the defendant in respect of the rent for the month of Oct,, 1964 cannot be said to be au invalid deposit and as the said deposit is a valid one all subsequent deposits made with the Rent Controller within the prescribed time are also valid deposits. It may be stated in this connection that admittedly the rent for the month of Oct., 1964 was deposited by the defendant tenant with the Rent Controller on 5th December, 1964. According to the defendant he first personally tendered the rent for the month of Oct. 1964 to the plaintiff but the plaintiff having refused to accept the same the said rent was sent by the defendant by money order on 12th Nov., 1964 but the said money order was againrefused by the plaintiff landlord on 22nd Nov., 1964 and the defendant after receipt of the said money order deposited the said rent for the month of October on 5th Dec., 1964 with the Rent Controller which was admittedly within 15 days from the date of the receipt of the said money order. Mr. Roy contends that the tenant having deposited the rent with the Rent Controller within 15 days from the date on which the money order had been returned to the tenant> such deposit must be held to be a valid deposit in view of the provisions made in the proviso to Sub-section (1) of Section 22 of the Act.

3. Mr. Gopal Chandra Mukherjee the learned Advocate appearing for the landlord respondent however contended that the initial deposit made on 5th Dec., 1964 with the Rent Controller for the month of Oct., 1964 was invalid deposit and as such the subsequent deposits were also invalid deposits and the courts below were quite justified in passing a decree for eviction on the ground of default committed by the tenant. Mr. Mukherjee however conceded that if the said initial deposit for the month of Oct., 1964 is held to be a valid deposit then the subsequent deposits made by the defendant are not invalid deposits and in that event the decree for eviction on the ground of default is liable to be set aside. Mr. Mnkherjee contended that according to the tenant he made a personal tender of rent for the month of Oct., 1964 to the plaintiff and it was only when the plaintiff refused to accept the same the said rent was again sent by money order. In such circumstances, Mr Mukherjee contended, that the tenent was bound to deposit within the last day of the month of Nov., 1964 and the deposit having been made only on 5th Dec., 1964 the said deposit was an invalid deposit. Mr. Mukherjee contended that the proviso to Sub-section (1) of Section 22 is not attracted to the facts and circumstances of the case and the tenant is not entitled to take the benefit of the said proviso, thereby overriding the provision of Sub-section (1) of Section 22 of the Act. Mr. Mukherjee contended that the proviso to Sub-section (1) of Section 22 cannot control and/or limit the provisions of Section 22(1) of the Act but it only enable the tenant to deposit the rent within 15 days from the date of receipt of money order by the tenant only in a case where there was no question of personal tender and the rent had been remitted only by the money order within the prescribed time. For this contention Mr. Mukherjee refied on a decision made in the case of Shah Bhojraj Kuverji Oil Mills &Ginning Factory v. Subhas Chandra Yograj Singh reported in : [1962]2SCR159 . It was held in the said case that a 'proviso' as a general rule is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily a proviso is not interpreted as stating a general rule. The provisions are often added not as exceptions or qualifications to the main enactment but as saving clauses in which case they will not be considered as controlled by the section. Relying on this decision Mr. Gopal Chandra Mukherjee contended that proviso to Sub-section (1) of Section 22 of the West Bengal Premises Tenancy Act did not lay down any general rule as to the time limit for deposit of rent with the Rent controller and it was the parent section viz. Sub-section (1) of Section 22 which controlled such time limit but the proviso only provided for an exception to the general rule to the effect that in case of remittance by money order the tenant was entitled to deposit rent within 15 days from the date of receipt of the money order by the said tenant. Mr. Mukherjee also relied on the decision made in the case of P. N. Sanyal v. Haraprosad Sarkar reported in (1977) 2 Cal LJ 323. In the said case, proviso to Section 17 (2A) (b) was under consideration of this court. It was held that the proviso to Clause (b) of Sub-section (2A) of Section 17 was only to the effect that the amount was to be calculated in the manner specified in Section 17 (1) of the Act. In answer to this contention of Mr. Gopal Chandra Mukherjee, Mr. Tapash Chandra Roy submitted that in interpreting Statutes, the Court must take into account of the welfare legislation and plain dictionary meaning should not be adhered to in the matter of interpretation of Statutes in beneficial legislation. In this context, Mr. Roy referred to a decision made in the case of State Bank of India v. A. N. Sundara Money reported in : (1976)ILLJ478SC . It was held in the said case that dictionary meaning should not be adhered to in construing statute and the court should keep in mind the benignant mood of law in a beneficial legislation in the matter of interpretation of Statutes, and the Court should not ignore the text and context of a beneficial legislation and resort to grammatical construction. Relying on this decision, Mr. Roy contended that Section 22 was amended by the legislature for giving reliefs to the tenants and this was a beneficial piece of legislation. Accordingly, strict grammatical construction should not be adhered to in the matter of interpreting the proviso to Sub-section (1) of Section 22 of theAct, and as such it cannot be held that when there is a personal tender, the tenant was bound to deposit within 30th of Nov., 1964 in spite of the tact that the tenant had also sent the rent by money order and had deposited such rent within 15 days from the date of the receipt of the said money order. Mr. Roy however pointed out that in the instant case, the Court of appeal below did not accept the case of the tenant that there was a personal tender by the tenant before remittance by money order and as such the only tender found by the Court of appeal below was a tender by money order. Mr. Mukherjee however contended that the trial court found that the tenant personally tendered the rent before 12th Nov., 1964 and the landlord having refused to accept the same the said rent was again sent by money order and this finding of the trial court was not specifically reversed by the Court of appeal below. I am, however, unable to accept this contention of Mr. Gopal Chandra Mukherjee. The Court of Appeal below considered the case of personal tender and it transpires that the Court of appeal below did not accept the case of personal tender by the tenant and was not inclined to put reliance on the testimony of the D. W. 1, the only witness examined on behalf of the defendant who did not say on which date he personally tendered the rent to the plaintiff.

4. Mr. Sakti Nath Mukherjee the learned Advocate appearing as amicus curiae to assist the Court on the correct interpretation of Sub-section (1) of Section 22 of the West Bengal Premises Tenancy Act read with the proviso submitted that the word 'may' used in the proviso to Sub-section (1) of Section 22 has not been used as 'shall' because otherwise the expression also immediately after the word may will lose all its significance. Sub-section (1) of Section 22 including the proviso runs as follows :--

'22. Time-limit for making deposit and consequences of incorrect particulars in application for deposit,

(1) No rent deposited under Section 21 shall be considered to have been validly deposited under that section for purposes of Clause (i) of Sub-section (1) of Section 13, unless deposited within fifteen days of the term fixed by the contract in writing for payment of rent or, in the absence of such contract in writing, unless deposited within the last day of the month following that for which the rent was payable'.

Provided that where any rent remitted to the landlord by postal money order withinthe time referred to in Section 4 is returned to the tenant by the postal authorities as undelivered either on account of the landlord having rerused to accept payment thereof or for any other cause, such rent may also be validly deposited for the purposes of the said clause within fifteen days from the date on which it is so returned to the tenant.

Mr. Sakti Nath Mukherjee submits that reading the said proviso it will be quite evident that the said proviso was only an enabling section which authorised a tenant also to deposit within 15 days from the date of the receipt of the money order by which the rent was sent by the tenant. Mr. Sakti Nath Mukherjee referred to the well-known treatise namely Statutory Construction by Crawford (1930 Ed.), Article 297 at pages 604-605. The learned author in his comments on proviso commented to the following effect -- 'Even though the primary purpose of the proviso is to limit or restrain the general language of a Statute, the legislature unfortunately does not always use it with technical correctness. Consequently where its use creates an ambiguity, it is the duty of the Court to ascertain the legislative intention through resort to the usvial rules of construction applicable to Statutes generally and to give its effect even though the Statute is thereby enlarged'. Mr. Sakti Nath Mukherjee submitted that the proviso to Sub-section (1) of Section 22 in tact enlarged the time limit for deposit of rent in a case where rent was sent by money order. Mr. Mukherjee also referred to Craies on Statute Law, 6th Ed., page 217. It was commented by the learned author that 'the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment or to qualify something enacted therein, which but for the proviso would be within it and such a proviso cannot be considered as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect'. Mr. Mukherjee submitted that the proviso in question really postulates an enlargement of the time provided for in the parent sub-section because of the use of the expression 'also' after the word 'may' in the proviso. Mr. Mukherjee in this context also referred to a passage in Maxwell's Interpretation of Statutes, 12th Ed., page 190, Commenting on the construction of provisos, the learned author stated that 'If however the language of the proviso makes it plain that it was intended to have an operation more extensive than that of the provision whichit immediately follows, it must be given such wider effect.' The aforesaid comment was made by the said learned author relying on the decision made in the case of Piper v. Harvey reported in (1958) 1 QB 439 : (1958) 1 All ER 454. Mr. Sakti Nath Mukherjee also submitted that in interpreting a proviso, the Court must try to make harmonious construction of the proviso in relation to the parent section to which it is appended. For this proposition, Mr, Mukherjee referred to a decision made in the case of Abdul Jabar Butt v. State of Jammu and Kashmir reported in : 1957CriLJ404 and also to the decision made in the case of Tahasildar Singh v. State of Uttar Pradesh reported in : 1959CriLJ1231 . It was held in the latter case that a broad general rule of construction must be followed taking the section as a whole including the proviso and sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two. Mr. Sakti Nath Mukherjee the learned ami-cus curiae submitted that if the proviso is interpreted to the effect that it enlarged the time limit for the deposit of rent in the cane where the rent was sent by a money order irrespective of the fact as to whether such money order was sent after refusal of the personal tender by the tenant, the parent section viz. Sub-section (1) of Section 22 and the proviso thereunder can be easily reconciled and there will be no repugnancy between the two. Mr. Mukherjee submitted that as aforesaid, the use of the word 'also' after the word 'may' in the proviso clearly indicated that after return of the rent sent by money order to the tenant, the tenant was free to deposit the said rent either within the last day of the month following the month for which the rent was payable or within 15 days from the date of the receipt of the money order by him irrespective of the fact that said rent was only sent by money order or the rent was sent by money order after refusal of personal tender of rent by the landlord. In my view, the submission of Mr. Sakti Nath Mukherjee the learned Advocate appearing as amicus curiae in this case is of great substance and I have no hesitation in accepting the same. In my view, the proviso to Sub-section (1) of Section 22 of the Act is an enabling provision by which a tenant is entitled to deposit within 15 days from the date of the receipt of the money order in addition to the usual time limit for deposit of rent within the last day of the month following for which the same was payable asprovided for in Sub-section (1) of Section 22 of the: Act, As the time for deposit of rent is enlarged in view of the proviso to Sub-section (1) of Section 22, it is not necessary to consider as to whether there was initially a personal tender or not. It may be stated, however, that in view of the finding made by the Court of appeal below as stated hereinbefore that there was no personal tender by the tenant and the rent for the month of Oct., 1964 was sent only by money order. It is therefore held that the deposit of rent for the month of Oct., 1964 within 15 days from the date of receipt of the money order was clearly within time and even assuming that proviso to (sic) sub-section. Accordingly the tenant appellant cannot be held to have defaulted in payment of rent and as such he is not liable to be evicted from the suit premises on the ground of default.

5. In the result, this appeal is allowed and the judgment of the Court of appeal below is set aside. But in the facts and circumstances of the case there will be no order as to costs.

6. In conclusion, the Court intends to keep on record its deep appreciation for the very valuable and able assistance rendered by Mr. Sakti Nath Mukherjee, the learned Advocate appearing as amicus curiae.


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