B.P. KHEMKA PVT. LID. versus BIRENDRA KUMAR BHOWMICK & ANR.

Citation: [1987] 2 S.C.R. 559 · Decided: 06-03-1987 · Supreme Court of India · Bench: A.P. SEN · Disposal: Permission to File SLP/Appeal-allowed and matter dismissed(including all pending IAs)
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Judgment (excerpt)

B.P. KHEMKA PVT. LID. 
v. 
BIRENDRA KUMAR BHOWMICK & ANR. 
MARCH 6, 1987 
[A.P. SEN AND S. NATARAJAN, JJ.] 
West Bengal Premises Tenancy Act, 1956-S.17(1), (2) and 
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(2A)-West Bengal Premises Tenancy (Amendment) Ordinance VI of 
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1967-Ss.2 and 5-Rent-Default in payment of-Application before 
Court for payment of rent arrears in instalment under s. I7 (2A) (b) of 
A 
B 
_ 
~. 1956 Act (as introduced by Ordinance VI of 1967)-Time limit For 
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r"" 
filing-Reading s.17 (2A) (b) of 1956 Act conjointly with s.5 of the 
Ordinance-All tenants against whom suits or appeals pending on the 
date of promulgation of Ordinance entitled to benefit of s.17 (2A) by 
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..(__ 
filing application within one month from the date of promulgation of the 
Ordinance-Limitation of one month prescribed by s.17( 1) of 1956 Act 
inoperative by virtue of s.5 of the Ordinance making it effective 
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retrospectively. 
West Bengal Premises Tenancy Act, 1956-S.17(3) and (4) 
Proviso--Second default in payment of rent within the meaning of Pro-
viso to s.17(4)-Must be for four months and above within 12 months-
Tenant's defence against delivery of possession-Cannot be struck out if E 
subsequent default is for a period of less than four months within 12 
months-Eviction suit on ground of default liable to be dismissed-
Section 17(3)-Word 'shall' being directory to be read as 'may'-
Discretion of the Court-To order either striking out of defence or 
not-Depends upon the circumstances of the case and interest of 
justice--If court exercises discretion not to strike out defence--Court has 
further discretion to condone the default and extend time for payment of 
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deposit. 
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Interpretation of statutes-Remedial amendments-To be con-
strued liberally-Duty of Court-To avoid conflict between two 
sections-Mendatory or directory-Whether 'shall' used as 'may'-
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Depends upon legislative intent. 
The first respondent filed a suit against the appellant and the 
second respondent for ejectment on the ground of default in payment of 
the monthly rent. The appellant denied the alleged default and filed an 
application under s.17(2) of the West Bengal Premises Tenancy Act, 
H 
559 
A 
B 
560 
SUPREME COURT REPORTS 
[1987] 2 S.C.R. 
1956 to seek the orders of the Court regarding the amount of rent 
payable to the landlord. 
f' 
During the pend ency 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 to 
be promulgated with effect from 26.8.67. By s.2 of the Ordinance sub-
s.(2A) and (2B) to s.17 of the Act were inserted. Section 5 of the Ordi-
~-
nance gave retrospective effect to the amendments by providing that the 
amendments made by s.2 of the Ordinance shall have effect in respect of 
all suits including appeals which were pending on the date of com-
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mencement of the Ordinance. The amendments inter alia enabled tenants 
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who were in default to apply to the Court and pay the arrears of rent in 
instalments. 
To avail the benefit of amended provisions the appellant preferred 
an application within one month under s.(2A)(b) praying for payment 
of arrears of rent in instalments. The trial Court fixed the amount of 
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arrears payable and allowed the payment thereof in three instalments. 
The appellant paid the entire arrears of rent on 31. 7. 70 covering the 
period ending with 29.2.68. 
In the meanwhile the first respondent had filed an application 
under s.17(3) for striking out the defence of the appellant against the 
E 
delivery of possession of the demised premises for non-compliance with 
the terms of s.17(1). Resisting the application the appellant contended 
that since he had paid the arrears of rent as per the orders of the Court 
under s.17(2A)(b), the first respondent's suit should be dismissed under 
s.17(4). The trial Court allowed the application and struck out of the 
defence the appellant on the ground that in paying the rent for the 
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months of September 1968 and March 1969 there had been a delay and 
thus the appellant had contravened s.17(1) and, therefore, he was not 
entitled to protection under s.17(4). The application filed by the appel-
lant under s.148 CPC for extension of time for deposit of amount for the 
months of September 1968 and March 1969 was dismissed. The suit was 
decreed and the decree confirmed by the Appellate Court and the High 
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Court. The High Court held that even an application
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