caselaws

Supreme Court of India
Bijay Kumar Singh vs Amit Kumar Chamaria on 22 October, 2019Author: Hemant Gupta

Bench: L. Nageswara Rao, Hemant Gupta

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7849 OF 2019
(ARISING OUT OF SLP (C) NO.24280 OF 2019)
(DIARY NO. 22352 OF 2017)

BIJAY KUMAR SINGH & OTHERS …..APPELLANT(S)

VERSUS

AMIT KUMAR CHAMARIYA & OTHERS …..RESPONDENT(S)

WITH

CIVIL APPEAL NO. 7850 OF 2019
(ARISING OUT OF SLP (C) NO.24284 OF 2019)
(DIARY NO. 22504 OF 2017)

JUDGMENT

HEMANT GUPTA, J.

1. The challenge in the present appeals is to an order passed by the

High Court of Calcutta on 13.05.2016 in two separate eviction

petitions filed by the respondent herein against two tenants.

2. Learned Single Judge has set aside the order dated 10.08.2011

whereby an application filed by the appellant under Section 7(2) of

the West Bengal Premises Tenancy Act, 19971 was allowed.

1 For short the “Act”
2

3. The brief facts leading to the present appeals are that the

respondent filed an eviction petition against the appellants on the

ground of non-payment of arrears of rent in respect of two shops

alleging that initially, Sudama Singh was tenant on the monthly

rent of Rs.45/- and Rs.25/- per month but now the rent payable is

Rs.306/- and Rs.174/- per month. It is the case of the respondent

that a Receiver was appointed in Money Execution Case No.

23/1961 and the said Receiver was discharged vide order dated

10.02.2009. The respondent demanded arrears of rent but since

the amount of arrears at the rate of Rs.306/- per month was not

paid, the petition for eviction was filed. The appellant did not

deposit any rent but filed an application to determine the arrears

of rent asserting that they have paid monthly rent up to the month

of June 1993 to the Receiver. However, the Receiver has not

informed the appellants as to the person authorised to collect

rent, therefore, they could not pay it.

4. The learned Trial Court allowed the application, determined the

arrears of rent and granted time to pay the arrears of rent so

determined. The learned Single Bench set aside the order passed

by the Trial Court as it chose to follow the order passed in CO 1941

of 2013, though another Coordinate Bench had taken a contrary

view in CO 55 of 2014. Learned Single Judge found that in the

order passed by Coordinate Bench in CO 55/2014, no lis was
3

decided and that no principle was laid down which may give light

to the learned Trial Court to decide the pending litigation.

Therefore, the learned Single Judge, decided the matter on merits

rather than referring it to the larger Bench for decision.

5. In this background, the argument of the learned counsel

appearing for the appellant is that the High Court has not

maintained judicial decorum and should have referred the matter

to the larger Bench to decide the scope and ambit of Section 7(2)

of the Act. We find that since a short question of law arises for

consideration, therefore, without going into the question as to

whether learned Single Judge should have referred the matter to

the larger Bench or not, the question to be decided by this Court

is to bring certainty in respect of scope of Section 7 of the Act.

6. Learned counsel for the appellant contends that the provisions of

Section 7(2) of the Act are pari-materia to Section 17(2) of West

Bengal Premises Tenancy Act, 19562 which was the subject matter

of consideration in an earlier judgment of this Court reported as

B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick 3.

Learned counsel for the appellant argued that the Limitation Act,

1963 would be applicable to seek condonation of delay in filing an

application under Section 7(2) of the Act. The learned Counsel also

placed reliance upon judgments reported as Shibu Chandra

2 for short the “1956 Act”
3 (1987) 2 SCC 407
4

Dhar v. Pasupati Nath Auddya 4 and Gaya Prasad Kar v.

Subrata Kumar Banerjee5

7. On the other hand, learned counsel for the respondent submitted

that the judgments in B.P. Khemka, Shibhu Chandra Dhar and

Gaya Prasad Kar deal with Section 17 of the 1956 Act, wherein,

sub section (2A) empowers the court to extend the time specified

in sub section (1) or sub section (2). Sub section (2A) is an

overriding provision starting with a non obstante clause. There is

no such equivalent provision in the Act which was enacted while

repealing the 1956 Act. It is argued that B. P. Khemka has been

considered by a three Judge Bench judgment reported as Arjun

Khiamal Makhijani Etc vs Jamnadas C. Tuliani & Ors. Etc 6

and distinguished the same in view of sub section (2A) of the 1956

Act.

8. In another three Judge Bench judgment reported as Nasiruddin

and Ors. vs Sita Ram Agarwal7, it was held that in terms of

clause (a) of sub-section (2A) of Section 17 of the 1956 Act, the

requisite power to extend the time for deposit of rent on an

application made by the tenant is without any restriction. It was

further held that the question of application of Section 5 of the

Limitation Act, 1963 would arise, if the appellant or the applicant

satisfies the court that he had sufficient cause for not making the

appeal or application within such period. Section 13(4) of the

4 (2002) 3 SCC 617
5 (2005) 8 SCC 14(3)
6 (1989) 4 SCC 612
7 (2003) 2 SCC 577
5

Rajasthan Premises (Control of Rent and Eviction) Act, 1950 8

provides that the tenant shall on the first date of hearing or, on or

before such date, shall deposit in court or pay to the landlord in

court from the date of such determination the amount so

determined or within such further time not exceeding three

months as may be extended by the Court. Thus, sub-section (4)

itself provides for limitation of a specific period within which the

deposit has to be made, which cannot exceed three months as

extended by this Court. The deposit by the tenant within 15 days

is not an application within the meaning of Section 5 of the

Limitation Act, 1963. Since the deposit does not require any

application, therefore, the provisions of Section 5 cannot be

extended where the default takes place in complying with an order

under sub-section (4) of Section 13 of the Act . It is thus contended

that provisions of the Rajasthan Act are close to the language of

Section 7 of the Act. Therefore, the Limitation Act is not applicable

to seek condonation of delay in filing an application under Section

7(2) of the Act. It was held as under:

“15. B.P. Khemka [(1987) 2 SCC 407 : AIR 1987 SC 1010]
arose out of the West Bengal Premises Tenancy Act, 1956
(in short “the West Bengal Act”). In the said case the tenant
committed default in payment of arrears of rent and the
landlord brought a suit for eviction on the ground of default.
While the suit was pending, the West Bengal Premises
Tenancy (Amendment) Ordinance 6 of 1967, which was
replaced by the West Bengal Premises Tenancy
(Amendment) Act 30 of 1969 came to be promulgated with
effect from 26-8-1967. The Act gave a retrospective effect
8 for short the “Rajasthan Act”.
6

to the amendments by providing that the amendments
made by Section 2 of the Ordinance shall have effect in
respect of all suits including appeals which were pending at
the date of commencement of the Ordinance. The
amendments inter alia enabled tenants who were in default
to apply to the court and pay the arrears of rent in
instalments and thereby avert their eviction. In pursuance
thereof, the tenant deposited the rent. However, he
subsequently committed default in paying monthly rent.
Consequently, the defence was struck off on the ground
that in paying the rent for the months of September 1968
and March 1969, there had been a delay of 44 days and 6
days respectively, which was in contravention of Section
17(1) of the West Bengal Act.

xxx xxx xxx

17. This Court in B.P. Khemka case [(1987) 2 SCC 407 : AIR
1987 SC 1010] while interpreting the provisions of sub-
section (4) held that the proviso makes it clear that if the
subsequent default is for a period of 4 months within a
period of 12 months, the tenant can claim relief under the
sub-section once again. Since the default was less than 40
days, this Court held that under the said proviso, the delay
could be condoned.”

9. The reliance is placed upon Monoj Lal Seal v. Octavious Tea &

Industries Ltd9, E. Palanisamy v. Palanisamy10, and Balwant

Singh v. Anand Kumar Sharma 11 as to when the statutory

provisions can be said to be directory or mandatory . Learned

counsel for the respondent referred to various orders passed by

the Calcutta High Court, taking a view that non-deposit of arrears

of rent will result in dismissal of the application under Section 7 of

the Act.

10. We do not find any error in the order passed by the High Court.

9 (2015) 8 SCC 640
10 (2003) 1 SCC 123
11 (2003) 3 SCC 433
7

One of the grounds of the eviction in terms of the Section 6(1)(b)

of the Act is default in payment of rent for three months within the

period of twelve months, or for three rental periods within the

period of three years where the rent is not payable monthly. It is

Section 7 of the Act which provides for an opportunity to the

tenant to make the payment of arrears of rent, to avoid an order

of eviction on account of its non-payment. The relevant provisions

of Section 7 of the Act read as under:

“7. When a tenant can get the benefit of protection
against eviction.—(1) (a) On a suit being instituted by the
landlord for eviction on any of the grounds referred to in
Section 6, the tenant shall, subject to the provisions of sub-
section (2) of this section, pay to the landlord or deposit
with the Civil Judge all arrears of rent, calculated at the rate
at which it was last paid and upto the end of the month
previous to that in which the payment is made together
with interest at the rate of ten per cent per annum.

(b) Such payment or deposit shall be made within one
month of the service of summons on the tenant or, where
he appears in the suit without the summons being served
upon him, within one month of his appearance.

(c) The tenant shall thereafter continue to pay to the
landlord or deposit with the Civil Judge month by month by
the 15th of each succeeding month, a sum equivalent to
the rent at that rate.

(2) If in any suit referred to in sub-section (1), there is any
dispute as to the amount of the rent payable by the tenant,
the tenant shall, within the time specified in that
subsection, deposit with the Civil Judge the amount
admitted by him to be due from him together with an
application for determination of the rent payable. No such
deposit shall be accepted unless it is accompanied by an
application for determination of the rent payable. On
receipt of the application, the Civil Judge shall, having
regard to the rate at which rent was last paid and the
period for which default may have been made by the
8

tenant, make, as soon as possible within a period not
exceeding one year, an order specifying the amount, if any,
due from the tenant and, thereupon, the tenant shall, within
one month of the date of such order, pay to the landlord the
amount so specified in the order:

Provided that having regard to the circumstances of the
case an extension of time may be granted by the Civil
Judge only once and the period of such extension shall not
exceed two months.

(3) If the tenant fails to deposit or pay any amount referred
to in sub-section (1) or sub-section (2) within the time
specified therein or within such extended time as may be
granted, the Civil Judge shall order the defence against
delivery of possession to be struck out and shall proceed
with the hearing of the suit.

(4) If the tenant makes deposit or payment as required by
sub-section (1) or sub-section (2), no order for delivery of
possession of the premises to the landlord on the ground of
default in payment of rent by the tenant, shall be made by
the Civil Judge, but he may allow such cost as he may deem
fit to the landlord:

Provided that the tenant shall not be entitled to any relief
under this subsection if, having obtained such relief once in
respect of the premises, he again makes default in payment
of rent for four months within a period of twelve months or
for three successive rental periods where rent is not
payable monthly.”

11. The Act has repealed the 1956 Act which had almost similar

provisions as contained in Section 7(1) and 7(2) of the Act, but the

material distinction is of sub sections (2A) and (2B) inserted by

West Bengal Premises Tenancy (Amendment) Ordinance No. IV of

1967. This was replaced by West Bengal Premises Tenancy

(Amendment) Act 30 of 1969 with effect from 26.08.1967, giving

retrospective effect to the amendments which were made

applicable to all suits, including appeals, which were pending
9

before commencement of the Ordinance. Sub sections (2A) and

(2B) so inserted read as thus:

“(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) having regard to the circumstances of the tenant as also of the
landlord and the total sum inclusive of interest required to be
deposited or paid under sub-section (1) on account of default in the
payment of rent, permit the tenant to deposit or pay such sum in
such instalments and by such dates as the Court may fix:

Provided that where payment is permitted by instalments such sum
shall include all amounts calculated at the rate of rent for the period
or default including the period subsequent thereto up to the end of
the month previous to that in which the order under this sub-section
is to be made with interest on any such amount calculated at the
rate specified in sub-section (1) from the date when such amount
was payable up to the date of such order.

(2B) No application for extension of time for the deposit or payment
of any amount under clause (a) of sub-section (2A) shall be
entertained unless it is made before the expiry of the time specified
therefor in sub-section (1) or sub-section (2), and no application for
permission to pay in instalment under clause (b) of sub-section (2A)
shall be entertained unless it is made before the expiry of the time
specified in sub-section (1) for the deposit or payment of the amount
due on account of default in the payment of rent.”

12. This Court, while considering the above provisions of the

1956 Act in B.P. Khemka held as under:

“11. 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 Ordinance
entitled the appellant to file an application under Section
17(2-A)(b), in the suit filed by the first respondent which
was pending then. Unfortunately, the High Court has looked
only into the Act and not the Ordinance and that is how
Section 5 of the Ordinance has escaped its notice. When
Section 17(2-A) and Section 5 of the Ordinance are read
conjointly it may be seen that it was the intention of the
legislature to extend the benefit of subsection (2-A) to all
pending suits and appeals irrespective of the fact whether
10

the time limit of one month prescribed under Section 17(1)
had expired or not. No other construction is possible
because any other construction would have the effect of
rendering otiose Section 5 of the Ordinance…..

12. If it was the intention of the legislature to restrict the
benefits given under Section 17(2-A) to only those tenants
against whom suits had been filed within one month prior
to the promulgation of the Ordinance, there was no
necessity to give retrospectivity to sub-section (2-A) under
Section 5 of the Ordinance. It has, therefore, to be held that
all tenants against whom suits or appeals were pending on
the date of the promulgation of the Ordinance were entitled
to seek the benefit of Section 17(2-A) 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(2-A)( a) 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(2-A)(b) which came into force
on August 26, 1967 within one month from April 6, 1967
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 insofar as the
payment of arrears for the period ending February 29, 1968
is concerned, the appellant had complied with the orders of
the court under Section 17(2-A)( b) and was therefore
entitled to claim the benefit of Section 17(4).”

13. The said judgment was followed in Shibu Chandra Dhar

considering the 1956 Act. The judgment in Gaya Prasad Kar is

also interpreting the provisions of the 1956 Act.

14. However, another three Judge Bench judgment in Arjun Khiamal

while examining provisions of the Bombay Rents, Hotel and

Lodging House Rates Control Act,194712 considered the judgment

reported as Vatan Mal v. Kailash Nath13, dealing with the

Rajasthan Act, held that Section 13(a) of the Rajasthan Act was to

confer benefits on all tenants against whom suits for eviction on

12 for short the “Bombay Act”
13 (1989) 3 SCC 79
11

the ground of default of payment of rent were pending. Such

judgment was not found to be attracted in view of mandatory

provisions contained in Section 12(3)(a) of the Bombay Act. The

judgment in B.P. Khemka was found not to be of any assistance

for the same reason.

15. This Court in Nasiruddin also considered the question as to

whether provisions of a statute being directory or mandatory

would depend upon the language implied therein, and referred to

a judgment reported as Union of India v. Philip Tiago De

Gama14. This Court also examined the judgment in

Shyamcharan Sharma v. Dharamdas15, wherein it was found

that there is no restriction in M.P. Accommodation Control Act,

196116 to condone delay to deposit the arrears of rent, whereas,

the discretion available to the court under the Rajasthan Act is

limited. For the same reason, it was found that in terms of the

Delhi Rent Control Act, 1958 17, the court has power to extend the

time to deposit arrears of rent. This Court held as under:

“31. We may further notice that in Shibu Chandra
Dhar v. Pasupati Nath Auddya [(2002) 3 SCC 617] which
also arose out of the West Bengal Premises Tenancy Act, it
was held that under sub-section (2-A) of Section 17 of the
Act, the court has a power to extend the period for
depositing the rent in the event of default by the tenant to
deposit the rent within a stipulated time. This Court further
held that if a court has no power to extend the time, then in
14 (1990) 1 SCC 277
15 (1980) 2 SCC 151
16 For short the “M.P. Act”
17 For short the “Delhi Act”
12

cases of small default beyond the reason of the tenant, the
time cannot be extended.
32. It is interesting to note that in Ganpat
Ladha v. Sashikant Vishnu Shinde [(1978) 2 SCC 573 :
(1978) 3 SCR 198] this Court while interpreting similar
provisions occurring in Section 12(3)( a) of the Bombay
Rents, Hotel, Lodging House Rates Control Act, 1947
(hereinafter referred to as “the Bombay Rent Act”) held:
(SCC p. 580, para 11)

“Section 12(3)(b) does not create any discretionary
jurisdiction in the Court. It provides protection to the
tenant on certain conditions and these conditions have
to be strictly observed by the tenant who seeks the
benefit of the section. If the statutory provisions do not
go far enough to relieve the hardship of the tenant the
remedy lies with the legislature. It is not in the hands of
courts.”
Thus under the Bombay Rent Act only on certain grounds
the court can exercise its discretionary power and not on
other grounds.”

16. While examining as to when the provision of a statute is to be

treated as directory or mandatory, this Court held in Nasiruddin

case that if an act is required to be performed by a private person

within a specified time, the same would ordinarily be mandatory

but when a public functionary is required to perform a public

function within a time-frame, the same will be held to be directory

unless the consequences thereof are specified. It was held as

under:

“37. The court’s jurisdiction to interpret a statute can be
invoked when the same is ambiguous. It is well known that
in a given case the court can iron out the fabric but it
cannot change the texture of the fabric. It cannot enlarge
the scope of legislation or intention when the language of
the provision is plain and unambiguous. It cannot add or
subtract words to a statute or read something into it which
is not there. It cannot rewrite or recast legislation. It is also
13

necessary to determine that there exists a presumption
that the legislature has not used any superfluous words. It
is well settled that the real intention of the legislation must
be gathered from the language used. It may be true that
use of the expression “shall or may” is not decisive for
arriving at a finding as to whether the statute is directory or
mandatory. But the intention of the legislature must be
found out from the scheme of the Act. It is also equally well
settled that when negative words are used the courts will
presume that the intention of the legislature was that the
provisions are mandatory in character.

38. Yet there is another aspect of the matter which cannot
be lost sight of. It is a well-settled principle that if an act is
required to be performed by a private person within a
specified time, the same would ordinarily be mandatory but
when a public functionary is required to perform a public
function within a time-frame, the same will be held to be
directory unless the consequences therefor are specified.
In Sutherland’s Statutory Construction, 3rd Edn., Vol. 3, at
p. 107 it is pointed out that a statutory direction to private
individuals should generally be considered as mandatory
and that the rule is just the opposite to that which obtains
with respect to public officers. Again, at p. 109, it is pointed
out that often the question as to whether a mandatory or
directory construction should be given to a statutory
provision may be determined by an expression in the
statute itself of the result that shall follow non-compliance
with the provision.

xxx xxx xxx

40. Thus, on analysis of the aforesaid two decisions we find
that wherever the special Act provides for extension of time
or condonation of default, the court possesses the power
therefor, but where the statute does not provide either for
extension of time or to condone the default in depositing
the rent within the stipulated period, the court does not
have the power to do so.

41. In that view of the matter it must be held that in
absence of such provisions in the present Act the Court did
not have the power to either extend the period to deposit
the rent or to condone the default in depositing the rent.”
14

17. Further, a three Judge Bench of this Court in a judgment reported

as Union of India and Others v. A. K. Pandey18 held as under:

“15. The principle seems to be fairly well settled that
prohibitive or negative words are ordinarily indicative
of mandatory nature of the provision; although not
conclusive. The Court has to examine carefully the
purpose of such provision and the consequences that
may follow from non-observance thereof. If the context
does not show nor demands otherwise, the text of a
statutory provision couched in a negative form
ordinarily has to be read in the form of command.
When the word “shall” is followed by prohibitive or
negative words, the legislative intention of making the
provision absolute, peremptory and imperative
becomes loud and clear and ordinarily has to be
inferred as such. There being nothing in the context
otherwise, in our judgment, there has to be clear
ninety-six hours’ interval between the accused being
charged for which he is to be tried and his arraignment
and interval time in Rule 34 must be read as absolute.
There is a purpose behind this provision: that purpose
is that before the accused is called upon for trial, he
must be given adequate time to give a cool thought to
the charge or charges for which he is to be tried,
decide about his defence and ask the authorities, if
necessary, to take reasonable steps in procuring the
attendance of his witnesses. He may even decide not
to defend the charge(s) but before he decides his line
of action, he must be given clear ninety-six hours.”

18. The judgment in B.P. Khemka is in respect of a statute giving

power to condone delay without any fetters. The amendments

carried with retrospective effect inter alia enabled tenants who

were in default to apply to the court and pay the arrears of rent

in instalments and thereby avert their eviction. In pursuance of

the amendments, the tenant deposited the rent. However, he

subsequently committed default in paying monthly rent.

18 (2009) 10 SCC 552
15

Consequently, the defence was struck off on the ground that in

paying the rent for the months of September 1968 and March

1969, there had been a delay of 44 days and 6 days respectively,

which was in contravention of Section 17(1) of the West Bengal

Act. This Court held that the proviso makes it clear that if the

subsequent default is for a period of 4 months within a period of

12 months, the tenant can claim relief under the sub-section

once again. Since the default was less than 40 days, this Court

held that under the said proviso, the delay could be condoned.

Provisions of M.P. Act and of Delhi Act are also similar.

19. Sub section (1) of Section 7 of the Act relieves the tenant from

the ejectment on the ground of non-payment of arrears of rent if

he pays to the landlord or deposits it with the Civil Judge all

arrears of rent, calculated at the rate at which it was last paid

and up to the end of the month previous to that in which the

payment is made together with interest at the rate of ten per

cent per annum. Such payment or deposit shall be made within

one month of the service of summons on the tenant or, where he

appears in the suit without the summons being served upon him,

within one month of his appearance.

20. Therefore, sub section (1) deals with the payment of arrears of

rent when there is no dispute about the rate of rent or the period

of arrears of rent. Sub section (2) of the Act comes into play if

there is dispute as to the amount of rent including the period of
16

arrears payable by the tenant. In that situation, the tenant is

obliged to apply within time as specified in sub section (1) that is

within one month of the receipt of summons or within one month

of appearance before the court to deposit with the Civil Judge the

amount admitted by him to be due. The tenant is also required to

file an application for determination of the rent payable. Such

deposit is not to be accepted, unless it is accompanied by an

application for determination of rent payable. Therefore, sub

section (2) of the Act requires two things, deposit of arrears of

rent at the rate admitted to be due by the tenant along with an

application for determination of the rent payable. If the two

conditions are satisfied then only the Court having regard to the

rate at which rent was last paid and for which tenant is in default,

may make an order specifying the amount due. After such a

determination the tenant is granted one month’s time to pay to

the landlord the amount which was specified. The proviso of the

Act, limits the discretion of the court to extend the time for

deposit of arrears of rent. The extension can be provided once

and not exceeding two months.

21. Sub section (3) provides for consequences of non-payment of rent

i.e. striking off the defence against the delivery of the possession

and to proceed with the hearing of the suit. Such provision is

materially different from sub sections (2A) and (2B) which was

being examined by this Court in B.P. Khemka. Sub sections (2A)
17

and (2B) of Section 17 of 1956 Act confer unfettered power on the

court to extend the period of deposit of rent, which is

circumscribed by the proviso of sub sections (2) and (3) of Section

7 of the Act. Therefore, the provisions of sub section (2) are

mandatory and required to be scrupulously followed by the tenant,

if the tenant has to avoid the eviction on account of non-payment

of arrears of rent under Section 6 of the Act. There is an outer limit

for extension of time to deposit of arrears of rent in terms of the

proviso to sub section (2) of Section 7 of the Act. The

consequences flowing from non-deposit of rent are contemplated

under sub section (3) of Section 7 of the Act. Therefore, if the

tenant fails to deposit admitted arrears of rent within one month

of receipt of summons or within one month of appearance without

summons and also fails to make an application for determination

of the disputed amount of rate of rent and the period of arrears

and the subsequent non-payment on determining of the arrears of

rent, will entail the eviction of the tenant. Section 7 of the Act

provides for a complete mechanism for avoiding eviction on the

ground of arrears of rent, provided that the tenant takes steps as

contemplated under sub section (2) of Section 7 of the Act and

deposits the arrears of rent on determination of the disputed

amount. The deposit of rent along with an application for

determination of dispute is a pre-condition to avoid eviction on the

ground of non-payment of arrears of rent. In view thereof, tenant

will not be able to take recourse to Section 5 of the Limitation Act
18

as it is not an application alone which is required to be filed by the

tenant but the tenant has to deposit admitted arrears of rent as

well.

22. In view of the judgment in Nasiruddin, we do not find any error

in the order passed by the learned Single Judge. The Trial Court

shall proceed with the suit in accordance with law. The appeals

are dismissed.

………………………………………J.
(L. NAGESWARA RAO)

………………………………………J.
(HEMANT GUPTA)
NEW DELHI;
OCTOBER 22, 2019.

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