Supreme Court: While considering an appeal challenging Calcutta High Court’s rejection of the tenant’s application under Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing application under Section 7(1) of the West Bengal Premises Tenancy Act, 1997 (WBPT Act); the Division Bench of J.K Maheshwari* and Aravind Kumar, JJ., held that applicability of Limitation Act is subject to provisions of the WBPT Act. The compliance as required to be done by the tenant in Section 7(1)(a)(b)(c) and first part of Section 7(2) regarding deposit of rent and filing an application within the same time is mandatory. In default, tenant cannot avail the benefit of the proviso of Section 7(2) which only relates to the payment of determined amount of rent and whereby the Civil Judge may exercise the discretion to grant extension of time.
Background:
The appellant is a tenant in the suit premise and the respondents are the landlord. The admitted monthly rent of the suit premise was Rs. 1090. The landlord instituted the ejectment suit on 11-06-2019 on the grounds of arrears of rent, bona-fide need and sub-letting. On issuance of notice, summons were served upon tenant on 29-09-2022. From 30-09-2022 till 27-10-2022, the Courts were closed because of Durga Puja vacation in Kolkata. Thereafter, on 14-11-2022, the tenant filed the applications under Sections 7(1) and 7(2) of the WBPT Act along with application under Section 5 of the Limitation Act with the prayer to condone the delay of 17 days in filing the application under Section 7(1) of the WBPT Act.
The Small Causes Court by the impugned order rejected the application inter-alia, observing that the period to file an application as specified under Section 7(1) of the WBPT Act is 30 days, which cannot be extended by aid of Section 5 of the Limitation Act. Aggrieved by the said order, the tenant preferred the revision before the High Court, which was dismissed maintaining the order of the Small Causes Court with certain observations qua applicability of Sections 7(1) and (2) of the WBPT Act. Hence, the present appeal before the Supreme Court came into being.
Contentions:
Counsel for the tenant extensively referring Sections 7(1), 7(2), 7(3) and 7(4) of the WBPT Act, contended that proviso to Section 7(2) would apply to Section 7(1) also, therefore, if there is any delay in filing of the application under Section 7(1) and (2), the same may be condoned at least once up to 2 months.
Per contra, counsel representing the landlord, submitted that applications under Sections 7(1) and (2) of the WBPT Act were not filed by the tenant within the prescribed statutory period of 30 days from the date of receipt of summons, therefore, the Small Causes Court was right in rejecting the application filed under Section 5 of Limitation Act, 1963.
The Amicus Curiae submitted 2 propositions- firstly: proviso to Section 7(2) of the WBPT Act applies to Section 7(1) as well. He submitted that the proviso deals with extension of ‘time’ as prescribed for ‘pay’ and ‘deposit’ in Sections 7(1) and (2) both; secondly: since the proviso is textually located at the end of Section 7(2) and per se does not refer to Section 7(1), but only refers to time specified therein, it must be confined in its operation to latter part of Section 7(2) alone.
Issues framed:
Whether applications filed under Sections 7(1) and (2) of the WBPT Act by the tenant without deposit of rent after lapse of statutory period of thirty days, along with an application under Section 5 of the Limitation Act, rejected by Court of Small Causes & the High Court, was justified?
Court’s Assessment:
Perusing the facts, contentions of the parties and the issue framed, the Court delved into Section 7 of the WBPT Act and pointed out that as per Section 7(1) in a suit for eviction filed by the landlord on any grounds as specified in Section 6 of the WBPT Act, the tenant shall, subject to provisions of sub-section (2), pay to the landlord or deposit in the Court, all arrears of rent calculated at the rate at which it was last paid together with interest at the rate of ten per cent per annum. As mandated by Section 7(1)(b), the said payment or deposit shall be made within one month from the date of service of the summons on tenant or from the date of appearance in case the tenant appears without service of summons. The said two provisions apply in a case where arrears of rent are admitted. Thereafter, Section 7(1)(c) puts a further condition that after the admitted arrears are paid, the tenant shall continue to pay or deposit with the landlord or Civil Judge, as the case may be, a monthly sum of rent at that rate on or before fifteenth day of consecutive month.
As per Section 7(2) if there is a dispute as to the amount of rent payable by the tenant, he is required to deposit the admitted amount due from him in the Court within the time as specified ‘together’ with an application for determination of the rent payable. To seek protection against eviction, the tenant is required to deposit the admitted amount of rent within the time as specified, i.e., within one month from the date of summons served or where tenant appears in the suit without the summons being served upon him, along with an application for determination of the rent so payable.
The Court explained that word ‘together’ used in Section 7(2) preceding ‘with an application for determination of the rent payable’ emphasises that the deposit of admitted amount of rent within a period of thirty days as specified must accompany the application for determination of rent payable. The determination of the rent on the parameters as specified in the latter part of Section 7(2) and on such determination within one month of the date of the order, the amount as specified in the order is to be paid. The proviso thereto deals with the extension of time, which can only be once and not beyond period of two months.
The Court pointed out that while bringing Section 7, the legislative intent was to provide protection to the tenant against eviction, subject to compliance of deposit of arrears of rent if there is no dispute as to amount of rent, within one month from the date of service of summons, along with interest at the rate of ten percent per annum. The tenant is further required to deposit the regular rent as prescribed in Section 7(1)(c). In case, there is a dispute of the amount of rent payable, the tenant is required to deposit the amount due as admitted by him within thirty days and file an application conjointly for determination of rent within the same period. The said application may possibly be entertained and decided by the Court thereafter only.
The Court pointed out that Section 40 WBPT Act prescribes the applicability of the Limitation Act, 1963 in proceedings and appeals. Delving into Section 40, the Court explained that the provisions of the Limitation Act, 1963, would apply to the proceedings and appeals subject to the provisions of the WBPT Act relating to limitation. Thus, the applicability of the Limitation Act, 1963 vis-à-vis WBPT Act is not in general, but subject to the provisions of the limitation specified in the WBPT Act itself. Therefore, in general, the applicability of the Limitation Act, 1963 is permissible subject to limitation prescribed under the provisions of the WBPT Act.
Vis-a-vis the dispute in the present case, the Court noted that neither the rent as specified under Sections 7(1) and 7(2) has been paid or deposited by the tenant, nor the application for determination of rent has been filed within the period of thirty days as prescribed. Therefore, in the absence of fulfilment of these twin conditions, tenant cannot avail the benefit of protection against eviction as envisaged under Section 7 of WBPT Act.
The Court further considered whether compliance of the provisions of Sections 7(1) and 7(2) so far as it relates to payment or deposit of the rent and filing of application within the time as specified is mandatory or directory? Perusing the language of Sections 7(1)(a)(b)(c) and 7(2) and also the proviso thereto, the Court pointed out that for the purpose of payment or deposit of the arrears of rent or rent admitted to be due within the time as specified and also for filing of the application, the word ‘shall’ has been used. However, for the purpose of extension of time, the word ‘may’ has been used indicating discretion vested with the Court.
The Court said that Legislature in its wisdom did not provide for any extension of time for payment or deposit under Section 7(1), making it clear that no such extension was intended in the corresponding part in Section 7(2). Since the deposit and application are to be made together by the tenant mandatorily within a specific time, in our considered view, extension of time as given in proviso to Section 7(2) is not applicable to either. “Stated differently, the word ‘may’ used in the proviso of Section 7(2) would only relate to extension of time, which is a discretion vested with the Civil Judge and it would not construe any other meaning. Moreover, it can be said that since in subsection (3) of Section 7, the consequence of non-compliance has been specified, therefore, use of the word ‘shall’ in Sections 7(1)(a), 7(1)(b) and 7(2) is a mandatory compliance for the tenant, failing which, his defence against eviction shall be struck off”.
Coming onto the facts of the case, the Court said that summons were served to the tenant 29-09-2022. From the next date, i.e., 30-09-2022 to 27-10-2022, Durga Puja vacation in Kolkata started. As per the provisions of the General Clauses Act, limitation period of 30 days would start from the date of receiving of the summons and it would complete on 28-10-2022, prior to completion of Durga Puja vacation. Therefore, the rent was required to be deposited within 30 days along with an application immediately on reopening of Courts, but application was filed with a delay of 17 days on 14-11-2022. Therefore, due to non-compliance of deposit and filing of an application within the prescribed period, the consequence as specified in Section 7(3) would follow. The benefit of proviso with respect to the extended time would not be available to the tenant prior to rent determination stage.
Hence, the Court dismissed the tenant’s appeal thereby upholding the verdict of Small Causes Court and the High Court.
[Seventh Day Adventist Senior Secondary School v. Ismat Ahmed, 2025 SCC OnLine SC 1696, decided on 13-8-2025]
*Judgment by Justice J.K. Maheshwari
Advocates who appeared in this case:
Amicus Curiae: Mr. Nidhesh Gupta, Sr. Adv. (Amicus Curiae) Ms. Japneet Kaur, Adv. Ms. Manu Bhardwaj, Adv. Mr. Bikram Diwavdi, Adv
For Petitioner(s): Mr. Uday Gupta, Sr. Adv. Mr. Hiren Dasan, AOR Ms. Shivani Lal, Adv. Mr. Harish Dasan, Adv. Mr. Rajiv Ranjan, Adv. Mr. Safdar Azam, Adv. Mr. Ajay Sharma, Adv. Mr. Unmukt Gera, Adv. Mr. Mahendra Mali, Adv. Mr. Deepanshu Rana, Adv.
For Respondent(s): Mr. Swarnendu Chatterjee, AOR Mr. Amit Kumar Raidani, Adv. Ms. Deepakshi Garg, Adv. Ms. Harshita Rawat, Adv.
