2025 INSC 984 1

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2025

IN

[SPECIAL LEAVE PETITION (C) NO. 10900 OF 2024]

SEVENTH DAY ADVENTIST

SENIOR SECONDARY SCHOOL ...APPELLANT

VERSUS

ISMAT AHMED AND OTHERS ...RESPONDENTS

J U D G M E N T

J.K. Maheshwari, J.

1. Leave granted.

2. Challenging the order impugned dated 20.03.2024

1 passed by

High Court at Calcutta, confirming the order dated 17.07.2023

2 of

the Small Causes Court, which rejected the application under

Section 5 of the Limitation Act, 1963 filed by appellant–tenant

seeking condonation of delay in filing application under Section

1

C.O. No. 2783 of 2023

2

Ejectment Suit No. 133 of 2019

REPORTABLE

2

7(1) of the West Bengal Premises Tenancy Act, 1997 (in short

‘WBPT Act’), the present appeal has been filed.

3. The appellant is a tenant in the suit premise being Flat No. 8,

First Floor, 44, Elliot Road, Kolkata, West Bengal, and the

respondents are the landlord. The relationship of landlord and the

tenant is not in dispute. The admitted monthly rent of the suit

premise is 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 the next day and date, i.e., 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.

4. In the application filed under Section 7(1) of the WBPT Act,

prayer was made to deposit the ‘current rent’ for the month of

November 2022 at the rate of Rs. 1090/- per month and to pass

such order as the Court may deem fit. Similarly, application under

3

Section 7(2) of the WBPT Act, was filed seeking determination of

default period, if any, and to refund the excess amount paid and to

pass such order as may deem fit.

5. Learned Small Causes Court by the impugned order rejected

the application under Section 5 of the Limitation Act, inter-alia,

observing that the period to file an application as specified under

Section 7(1) of the WBPT Act is thirty 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 learned Small

Causes Court with certain observations qua applicability of

Sections 7(1) and (2) of the WBPT Act. Hence, this appeal.

6. Mr. Uday Gupta, learned senior counsel for the appellant–

tenant has strenuously urged that the tenant was lawfully

inducted by the respondents and has regularly paid the rent by

cheque to the son-in-law of the landlord (respondent no. 1), details

of which have been specified in the application preferred under

Section 7(1) and 7(2) of WBPT Act. It is urged that as per the details

of the cheque amount, a total sum of Rs. 2,80,500/- has been paid

and as per the averments made in the plaint, the rent due is from

4

March 2017, which comes to sixty eight months till date of filing of

applications under Section 7(1) and 7(2). As such the payment

made is more than the rent amount due, therefore, refund of the

said amount was sought for. It is urged that when amount of rent

is paid in excess, the applications under Section 7(1) and (2) of

WBPT Act ought to be considered on merits along with the

application for condonation of delay filed under Section 5 of

Limitation Act, 1963 by the tenant.

7. Learned senior counsel extensively referring Sections 7(1),

7(2), 7(3) and 7(4) of the WBPT Act, contended that proviso

appended 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

two months. In support of the said contention, reliance has been

placed on the judgment in the case of Debasish Paul and

Another vs. Amal Boral

3, in particular paragraph 17, and also

urged that judgment in Bijay Kumar Singh and Others vs. Amit

Kumar Chamariya and Another

4

, does not deal with the issue as

involved in the present case as relied upon by the High Court in

3

(2024) 2 SCC 169

4

(2019) 10 SCC 660

5

the order impugned. In view of the foregoing, it is submitted that

by, condoning the delay, learned Small Causes Court may be

directed to consider the applications filed under Sections 7(1) and

(2) of the WBPT Act on its own merit.

8. Per contra, Mr. Swarnendu Chatterjee, learned counsel

representing respondents–landlord has vehemently contended that

applications under Sections 7(1) and (2) of the WBPT Act have not

been filed within the prescribed statutory period of thirty days from

the date of receipt of summons, therefore, learned Small Causes

Court was right in rejecting the application filed under Section 5 of

Limitation Act, 1963, which is affirmed by the High Court. Learned

counsel placed reliance on the judgment of Bijay Kumar (supra)

to support that unless the deposit of the admitted amount of rent

has been made, the application under Section 7(1) and (2) of the

WBPT Act ought not to be entertained.

9. Mr. Nidhesh Gupta, learned senior counsel has appeared as

amicus curiae pursuant to our order dated 19.02.2025 and has

ably assisted the Court by placing his erudite submissions for

consideration. His propositions are twofold. Firstly, he has

submitted that, proviso to Section 7(2) of the WBPT Act applies to

6

sub-section (1) of Section 7 also. Referring relevant provisions and

emphasising the word ‘amount of rent’, ‘payment’ and ‘deposit’ as

referred at various places in Section 7(1), 7(2) and 7(3) along with

specification of time for such payment and deposit after

determination, he submitted that the proviso deals with extension

of ‘time’ as prescribed for ‘pay’ and ‘deposit’ in Sections 7(1) and (2)

both. In case the first proposition does not found favour, then the

second proposition may be considered, i.e., since the proviso is

textually located at the end of sub-section (2) of Section 7 and per

se does not refer to sub-section (1), but only refers to time specified

therein, it must be confined in its operation to latter part of sub-

section (2) of Section 7 alone.

10. After having heard the learned counsel for both the parties,

submissions of learned amicus, and on perusal of the facts and

material placed before us in the present case, the moot question

that falls for our consideration is ‘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

7

of Small Causes as not entertainable, confirmed by the High Court

is justified?’

11. For appreciating the question as posed in detail, the

provisions of Section 7 of the WBPT Act which are relevant for

determination of the same are required to be noted and examined

and therefore, we reproduce them hereinbelow:

“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.

8

(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 sub-section, 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 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

9

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 sub-section 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.

12. Bare reading of the aforesaid provisions makes it clear that

as per sub section (1) of Section 7, 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

10

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.

13. As per sub-section (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 [one

month as per Section 7(1)(b)] ‘together’ with an application for

determination of the rent payable. It is emphasised that deposit of

rent shall not be accepted unless the said prayer is accompanied

with an application for determination of the rent. Meaning thereby,

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. As such, in case where there is no dispute as to arrears of

rent, it ought to be paid within a month and, in case it is in dispute,

even then, tenant would be required to deposit within the same

time coupled with an application as discussed above.

11

14. To supplement the aforesaid, 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. At this stage, we can

profitably refer to ‘P. Ramanatha Aiyar’s Advanced Law Lexicon’

5

to understand the meaning of ‘together’. According to the same,

‘together’ means “in company” or “conjointly” or “simultaneously”.

Accordingly, on contextual application of the word ‘together’, it is

clear that the application for determination of rent must be filed

within the same period which is provided for ‘deposit’ or ‘pay’, i.e.,

thirty days.

15. On receiving such application, the Court having regard to the

rate of rent last paid and period of which default has been made by

the tenant shall make an order on such application not later than

one year and thereupon the tenant shall within the period of one

month of the date of such order, pay to the landlord the amount so

specified in the order. That is to say, the determination of the rent

on the parameters as specified in the latter part of sub-section (2)

5

P. Ramanatha Aiyar, Advanced Law Lexicon Pg. 4707 (3

rd

Edition, 2005)

12

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.

16. Having perused Section 7 of WBPT Act, it is apparent that

sub-section (1) is subject to sub-section (2). Further, sub-section

(3) specifies consequences of non-compliance of sub-sections (1)

and (2) by the tenant, leading to striking out of defence against

delivery of possession and the Court shall proceed with the hearing

of the suit. Sub-section (4) of Section 7 of WBPT Act makes it clear

that in a proceeding of eviction, no order for delivery of possession

of the premises to the landlord shall be passed by the Court on the

ground of default of payment if the tenant deposits the rent under

sub-sections (1) or (2), but the Court may allow such cost to the

landlord as deemed fit. As per proviso, it is clear that if tenant was

allowed the relief as indicated hereinabove, but later he makes

default in payment of rent for four months within one year or in

case three successive rental periods, where the rent is not payable

monthly, the relief of protection against eviction available under

13

sub-section (4) cannot be allowed granting benefit of protection

against eviction to the tenant.

17. In view of the foregoing, while bringing the said Section, 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 per

cent 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. This Court in the case of

Bijay Kumar (supra) had an occasion to consider the scope of

Section 7(2) of the WBPT Act wherein the tenant had not deposited

or paid the admitted rent while moving an application seeking

determination of rent. Trial Court while allowing such application

granted time to pay the admitted rent, but High Court set-aside the

order of the Trial Court. While confirming the order of the High

14

Court on the issue of deposit of rent admitted by tenant under

Section 7(2) on the application for determination of rent, this Court

observed as under –

“21. …the deposit of rent along with an application for

determination of dispute is a precondition 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 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.”

18. Thus, in case of disputed rent, this Court was of the view that

to avail the benefit of protection against eviction under the WBPT

Act, the tenant has to do the following to avoid eviction, first, to

deposit rent admitted by him to be due; second, an application for

determination of rent payable be filed along with. The tenant had

neither deposited, nor paid the admitted rent and had only filed the

application for determination of rent belatedly along with an

application under Section 5 of the Limitation Act, 1963.

19. On perusal of provisions of the WBPT Act, it appears that

Section 40 prescribes the applicability of the Limitation Act, 1963

in proceedings and appeals. ‘Proceedings’ as defined in ‘P.

15

Ramanatha Aiyar’s Advanced Law Lexicon’

6 includes ‘any suit,

appeal or application’. Since the said provision is relevant, it is

reproduced for ready reference as under:-

“40. Application of the Limitation Act, 1963 to

proceedings and appeals.

Subject to the provisions of this Act relating to

limitation, the provisions of the Limitation Act, 1963,

shall apply to proceedings and appeals under this

Act.”

Upon reading of the aforesaid, it is clear 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.

20. In the said context, this Court in Debasish Paul (supra)

referred to the judgment in Bijay Kumar (supra) and in paragraph

16, while examining the applicability of Section 5 application under

Limitation Act, 1963, observed as under:-

“16. We have no doubt over the proposition that

though generally the Limitation Act is applicable to the

6

P. Ramanatha Aiyar, Advanced Law Lexicon Pg. 3745 (3

rd

Edition, 2005)

16

provisions of the said Act in view of Section 40 of the

said Act, if there is a lesser time period specified as

limitation in the said Act, then the provisions of the

Limitation Act cannot be used to expand the same. It

is in this context that in Nasiruddin case [Nasiruddin

v. Sita Ram Agarwal, (2003) 2 SCC 577] , it has been

mentioned that the real intention of the legislation

must be gathered from the language used. Thus, the

reasoning in Bijay Kumar Singh case [Bijay Kumar

Singh v. Amit Kumar Chamariya, (2019) 10 SCC 660 :

(2020) 1 SCC (Civ) 24] cannot be doubted more so as

the requirement is for a tenant to file an application,

but he has to deposit the admitted arrears of rent as

well, which has certainly not been done.”

21. In view of the foregoing, it can safely be concluded that in

general, the applicability of the Limitation Act, 1963 is permissible

subject to limitation prescribed under the provisions of the WBPT

Act. In this sense, this Court was right in observing that if a lesser

time period or limitation has been specified for proceedings under

the WBPT Act, then extension of time applying the provisions of the

Limitation Act, 1963 cannot be allowed. Be that as it may, in the

present case, 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

17

twin conditions, tenant cannot avail the benefit of protection

against eviction as envisaged under Section 7 of WBPT Act.

22. Now reverting on the ancillary issue, 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? In order to understand

whether such compliance is mandatory or directory, it is essential

to look into the language as used in those provisions. After perusal

of Section 7(1)(a), it is clear that on institution of a suit, it is

incumbent on the tenant to deposit the rent, therefore, the word

‘tenant shall’ has been used with ‘pay to landlord or deposit’. Even

in Section 7(1)(b), it is provided that such payment or deposit ‘shall’

be within one month of the service of summons or within one

month from the date of appearance. Further, in Section 7(1)(c) it is

provided that after the payment or deposit has been made by the

tenant in terms of Section 7(1)(a), the tenant ‘shall’ continue to do

the same by 15

th of each succeeding month.

23. Similarly, in Section 7(2) which deals with the situation of

disputed rent, the tenant within the time specified in that Section

i.e., 7(1)(b), ‘shall’ deposit the amount admitted by him to be due

18

along with application for determination of rent. The proviso

appended therein relates to extension of time only once and upto a

maximum period of two months. The proviso reads as ‘…an

extension of time may be granted…’

24. In view of the plain reading of the provisions specified in

Sections 7(1)(a)(b)(c) and 7(2) and also the proviso thereto, it is clear

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.

25. In this regard, guidance may be taken from three-Judge

Bench judgment in the case of ‘Nasiruddin and Others Vs. Sita

Ram Agarwal’

7 wherein this Court, inter-alia, interpreted the

mandatory or directory nature of expressions ‘shall’ and ‘may’

used in Section 13(4) of Rajasthan Premises (Control of Rent and

Eviction) Act, 1950 (in short ‘1950 Act’) in the framework of rent

deposit obligations qua determination of provisional rent. How and

7

(2003) 2 SCC 577

19

for what purpose the word shall has been used in this regard in

Section 13(4) of 1950 Act is referred which reads as thus:

“13. (4) The tenant shall deposit in court or pay to the

landlord the amount determined by the court under

sub-section (3) within fifteen days from the date of

such determination, or within such further time, not

exceeding three months, as may be extended by the

court. The tenant shall also continue to deposit in court

or pay to the landlord, month by month, the monthly

rent subsequent to the period up to which

determination has been made, by the fifteenth of each

succeeding month or within such further time not

exceeding fifteen days, as may be extended by the

court, at the monthly rate at which the rent was

determined by the court under sub-section (3).”

While interpretating the said provisions some paragraphs of the

judgment which are relevant for our purposes are reproduced 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

necessary to determine that there exists a

20

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.”

21

In the context of the said case, the word ‘shall’ used in Section

13(4) for deposit was treated as mandatory because of the

consequence of non-compliance was provided in Section 13(5), i.e.,

striking out the defence against eviction. Moreover, the word ‘may’

has been used in the context of power of the Court in extending the

already prescribed time period of fifteen days in depositing the

determined rent.

26. In addition, as per ‘P. Ramanatha Aiyar’s Advanced Law

Lexicon’

8, the word ‘shall’ is defined as “in common parlance, a term

which, it is said, has always a compulsory meaning, and in its

common and ordinary usage, unless accompanied by qualifying

words which show a contrary intent, always refers to the future; but

it may be used in a sense of ‘must’ of which it is a synonym.”.

Therefore, the said word used in statute is generally mandatory.

Similarly, ‘may’ is defined as “In general, May is an auxiliary verb

qualifying the meaning of another verb by expressing the ability,

contingency, possibility, or probability…… As used in statute, in its

ordinary sense the word is permissive and not mandatory, merely

importing permission, ability, possibility, or contingency.”

8

P. Ramanatha Aiyar, Advanced Law Lexicon Pg. 4325 (3

rd

Edition, 2005)

22

Simultaneously, in ‘Principles of Statutory Interpretation’

9, revised

by Justice A.K. Patnaik, it is specifically said that use of word ‘shall’

with respect to one matter and use of word ‘may’ with respect to

another matter in the same section of statute shall normally lead

to the conclusion that the word ‘shall’ imposes an obligation,

whereas the word ‘may’ confers a discretionary power. In this

regard, guidance can be taken from the judgment of this Court in

the case of Ganesh Prasad Sah Kesari and Anr. Vs. Lakshmi

Narayan Gupta

10.

27. In the case of Govindlal Chhaganlal Patel Vs. The

Agricultural Produce Market Committee, Godhra and

Others

11, three-Judge Bench of this Court while interpreting the

words ‘shall’ and ‘may’ as referred in the Crawford on Statutory

Construction (Ed. 1940, Article 261 p.516), set out the following

passage from an American case approvingly:

“The question as to whether a statute is mandatory

or directory depends upon the intent of the

legislature and not upon the language in which the

intent is clothed. The meaning and intention of the

legislature must govern, and these are to be

ascertained, not only from the phraseology of the

9

Justice G.P. Singh, Principles of Statutory Interpretation Including the General Clauses Act,

1897 with Notes, Pg. 453 (14

th Edition, 2016)

10

1985 3 SCC 53

11

1975 2 SCC 482

23

provision, but also by considering its nature, its

design, and the consequences which would follow

from construing it the one way or the other.”

As such, the governing factor is the meaning and intent of the

Legislature, which cannot merely be gathered from the words used

in statute, but are based on variety of other circumstances and

considerations. In the judgment of ‘Khub Chand and Others Vs.

State of Rajasthan and Others

12, this Court observed as under:

-

“….The term “shall” in its ordinary significance is

mandatory and the court shall ordinarily give that

interpretation to that term unless such an

interpretation leads to some absurd or inconvenient

consequence or be at variance with the intent of the

legislature, to be collected from other parts of the

Act. The construction of the said expression

depends on the provisions of a particular Act, the

setting in which the expression appears, the object

for which the direction is given, the consequences

that would flow from the infringement of the

direction and such other considerations.”

28. Hence, taking clue from the above referred judgments and

principles of the statutory interpretation, the intent of WBPT Act

and the circumstances wherein, the words ‘shall’ and ‘may’ have

been used in the same Section at different places, is required to be

adverted. As referred above in paragraphs 22, 23 and 24, it is

12

AIR 1967 SC 1074

24

apparent that whenever the words ‘payment’ or ‘deposit’ of rent

(disputed or undisputed) have been used, the tenant has been cast

with an obligation to deposit such rent within the specified time by

using the word ‘shall’ therein. In case of disputed rent, the tenant

is also required to file an application along with such deposit. The

legislative intent behind using the word ‘shall’ is to ensure that in

case the tenant who is in occupation of premises defaults in

payment of rent due to some inadvertence or fault, on ground of

which the eviction is sought by the landlord, then on service of the

summons, to prevent his defence from getting struck-off, the

tenant must comply with the twin pre-requisites. Section 7(1)

provides that the tenant shall pay to landlord or deposit all arrears

of rent, while the textual setup of first part of sub-section (2) of

Section 7 is that the tenant shall within the time specified, ‘pay’ or

‘deposit’ the amount of rent as admitted as due by him. Indeed, it

is true that in the latter part of sub-section (2) of Section 7, the

word ‘shall’ has again been used in the context of deciding the

application for determination of the rent, stating therein that

‘tenant shall within one month of the date of such order, pay to the

landlord the amount so specified in the order’. Therefore, in the

latter part, the word ‘tenant shall’ would be referable for payment

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of the amount to the landlord so specified in the order, and in the

said interpretive context, the extension of time is based on the

discretion of the Civil Judge only once, which may not exceed

beyond two months. Thus, the proviso appended therein would

apply only to a case where the amount specified in the order after

determination was not paid within the period as specified therein.

Consequently, by virtue of the proviso, in the latter part, the word

‘shall’ would intend only to the time period prescribed in the order,

and it would not include the time period for initial period as

specified under Section 7(1)(a) and (b) and the former part of

Section 7(2).

29. In addition, Section 7(1) and first part of sub-section (2) of

Section 7 are comparable, both requiring deposit/pay

admitted/undisputed amount of rent. However, Section 7(2) casts

an additional obligation on the tenant to file an application for

determination for rent along with such deposit within the specified

time frame. The 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

26

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.

Therefore, the proviso can only be construed to permit extension in

payment of amount so specified in order of determination passed

by the Civil Judge as envisaged in the latter part of sub-section (2)

of Section 7. 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 sub-

section (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.

30. In the case of Debasish Paul (supra), the suit was filed for

eviction by landlord. On entering appearance, applications under

Sections 7(1) and 7(2) of the WBPT Act were filed with a delay of 10

months without any application under Section 5 of the Limitation

Act. The trial Court rejected the said applications because they

were not filed within the statutory time. In revision, the High Court

27

set-aside the order of the trial Court and granted liberty to the

tenant for filing applications along with application under Section

5 of the Limitation Act, 1963, explaining the sufficient cause. When

the matter reached this Court in appeal, this Court had specifically

opined that if lessor time period has been specified for limitation in

the WBPT Act, then the provisions of the Limitation Act, 1963

cannot be used to extend the same and set-aside the order of High

Court while sustaining the order of the trial Court.

31. Learned counsel appearing on behalf of the appellant made a

strenuous attempt relying upon the observations made in

paragraphs 17, 18 and 19 of the judgment rendered in Debasish

Paul (supra), wherein the Court has referred to the judgment of

Bijay Kumar (supra). In this regard, paragraphs 17, 18 and 19 are

relevant and are reproduced below as thus:-

“17. We are of the view that a combined reading

of the two statutes would suggest that while the

Limitation Act may be generally applicable to the

proceedings under the Tenancy Act, the restricted

proviso under Section 7 of the said Act, providing a

time period beyond which no extension can be

granted, has to be applicable. The proviso is after

sub-section (2) of Section 7 but sub-section (2) of

Section 7 in turn refers to sub-section (1) implying

the application of the proviso to sub-section (1) too.

18. There is also a larger context in this behalf as

the Tenancy Acts provide for certain protections to

28

the tenants beyond the contractual rights. Thus, the

provisions must be strictly adhered to. The

proceedings initiated on account of non- payment of

rent have to be dealt with in that manner as a

tenant cannot occupy the premises and then not

pay for it. This is so even if there is a dispute about

the rent. The tenant is, thus, required to deposit all

arrears of rent where there is no dispute on the

admitted amount of rent and even in case of a

dispute. The needful has to be done within the time

stipulated and actually should accompany the

application filed under sub- sections (1) & (2)

of Section 7 of the said Act. The proviso only gives

liberty to extend the time once by period not

exceeding two months.

19. The respondent neither paid the rent, nor

deposited the rent by moving the application nor

deposited it within the extended time as stipulated

in the proviso. The mere allegation of absence of

correct legal advice cannot come to the aid of the

respondent as, if such a plea was to be accepted it

would give a complete licence to a tenant to occupy

premises without payment of rent and then claim

that he was not correctly advised. If the tenant

engages an advocate and abides by his advice,

then the legal consequences of not doing what is

required to be done, must flow.”

32. In the said context, if we see the intent of legislature as

discussed and relying upon two cases of three-Judge Bench of this

Court, we intend to explain that Section 7 of the WBPT Act

prescribes when a tenant can get the benefit of protection against

eviction. The opening word of sub-section (1) i.e., ‘on a suit being

instituted by the landlord for eviction’ makes it clear that in case

29

the tenant defaults in payment of rent and the suit is brought as

specified in the WBPT Act, then on deposit/payment of admitted

rent, an opportunity ought to be provided to get the benefit of

protection against eviction. Therefore, for availing such benefit,

some pre-requisites are there, which is of deposit of the rent, either

disputed or undisputed as admitted, within the specified time. In

case, the rent is disputed, the tenant has to mandatorily file an

application, by virtue of word ‘shall’ used to such extent either in

Section 7(1)(a)(b)(c) or first part of Section 7(2). However, in the

latter part of Section 7(2), which is for payment of amount on

determination by the Civil Judge within the time as specified after

compliance of the pre-deposit and on filing an application for

determination within the specified time, such payment has to be

made by the tenant within one month of date of order passed by

Civil Judge. The proviso refers to extension of time with an intent

to grant one more opportunity to the tenant after determination of

rent for deposit.

33. At this juncture, we also deem it relevant to refer sub-section

(3) of Section 7, wherein it is specified that if tenant fails to deposit

or pay any amount referred in sub-section (1) or sub-section (2)

30

within the time specified therein or within such extended time as

may be granted by the Court, his defence against delivery of

possession shall be struck out. So it deals with the following

contingencies; first is of Section 7(1)(a)(b)(c), second is of former

part of Section 7(2) and third is of latter part of Section 7(2) and in

default of either of the situations, the Judge shall order the defence

against delivery of possession to be struck out and shall proceed

with the hearing of the suit specifying the consequences of failure

to do any of the three situations. While using the word extended

time in sub-section (3), the word shall has been used, therefore,

this would also be referable to the provision which leads to the

conclusion that in case the tenant fails to deposit the determined

amount within the time specified or within the extended time. In

that contingency the order of striking out of defence be passed and

suit be proceeded for hearing. As explained from above discussion,

we are constrained to say that the arguments as advanced by the

learned counsel for the appellant relying upon the paragraphs 17,

18 and 19 of the judgment in Debasish Paul (supra) are not

germane, hence repelled.

31

34. After perusal of the facts of the case at hand, the summons

were served on appellant on 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 thirty 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 thirty 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 of 30 days,

the consequence as specified in sub-section (3) of Section 7 shall

follow. The benefit of proviso with respect to the extended time

would not be available to the appellant prior to rent determination

stage.

35. As concluded above, the applicability of Limitation Act is

subject to provisions of the WBPT Act. Meaning thereby, if the time

limit has been prescribed to do some act it cannot be extended by

aid of proviso of sub-section (2) of Section 7. As such, the

inescapable conclusion in the facts and the law as discussed

32

hereinabove, is that 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, they cannot avail the benefit of the proviso

of sub-section (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.

36. Accordingly, and in view of the above discussions, the present

appeal of the tenant fails and is dismissed while maintaining the

order passed by the learned Small Causes Court and the High

Court in above terms. Pending application(s), if any, shall stand

disposed of.

…..…………………………..J.

[J.K. MAHESHWARI]

…..…………………………..J.

[ARAVIND KUMAR]

New Delhi;

13

th

August 2025.