ivil Appeal No 1262 of 1979 From the Judgment and order dated 341978 of the High Court of Judicature at Calcutta in Appeal from Appellate Decree No 1700 of 1972
ST Desai and ML Verma for the Appellants
Govind Mukhoty and RP Gupta for the Respondents
M N Krishmani and V Shekar for the Intervenor
The Judgment of the Court was delivered by NATARAJAN J
This Appeal by Special Leave is by a tenant and is directed against the judgment of the Calcutta High Court in an Appeal against Appellate decree No 1700 of 1972
The defence of appellant in the suit filed by the first respondent for eviction was struck out and thereafter a decree for eviction was passed and the said decree was confirmed by the Appellate Court and the High Court and hence this Appeal by Special Leave
During the pendency of the suit the first respondent had entered into an agreement for sale of his building in which the suit property forms the ground floor to one Ramdir Singh Agarwala but subsequently executed a Sale Deed in favour of one Chidanand Halder
Ramdin Singh Agarwala filed a suit for specific performance in the Court of the Sub Judge Alipore and obtained a decree
The subsequent purchaser Chidanand Halder has filed an appeal against the 564 judgment and decree in the said suit and the appeal is pending disposal before the High Court
Both the parties claiming to have acquired title to the building of which the suit property forms a part have filed CMP Nos 19671 and 32297 of 1986 seeking impleadment in this Appeal
The first respondent who succeeded to the suit property after the death of his father filed a suit against the appellant and its director the second respondent for eject ment on the ground of default in payment of the monthly rent of Rs 550 from March 1965 to July 1966
The appellant filed a written statement denying the default in payment of rent and also filed an application under Section 172 of the West Bengal Premises Act 1956 for short the Act to seek the orders of the Court regarding the amount of rent payable to the landlord
During the pendency 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 26867
By Section 2 of the Ordinance Sub Sections 2A and 2B to Section 17 of the Act were inserted
Section 5 of the Ordi nance gave retrospective effect to the amendments by provid ing 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 Ordi nance
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
To avail the benefit of the amended provisions the appellant preferred an application on 22967 ie within one month from the date of promulgation of the Ordinance under Section 172Ab praying for payment of the arrears of rent in instalments
By Order No 39 the trial court fixed the amount of arrears payable at Rs 13602 and gave directions for the amount being paid in three instalments
As an error was noticed in the calculation of the rent arrears the appellant filed a review petition and the Court re fixed the arrears at Rs9752 by Order No 72
Subse quentiy this order was also revised and eventually the appellant paid the entire arrears of rent in accordance with the directions of the court by 31770
It may be stated here that the payment covered the period ending with 2921968 ie upto the end of the month previous to the date on which Order No 39 was made viz 163
565 In the meanwhile the first respondent had filed an application under Section 173 for striking out the defence of the appellant against the delivery of possession of the demised premises for noncompliance with the terms of Section 171
On 14370 the court allowed the said application and struck out the defence of the appellant on the ground that in paying the rents for the months of September 1968 and March 1969 there had been a delay of 44 days and 6 days respectively and this was in contravention of Section 171 of the Act
Thereafter the suit for eviction was decreed and the said decree came to be confirmed by the Appellate Court and the High Court
The appellant filed an application on 13670 under Section 148 Civil Procedure Code for extension of time for deposit of amount for the months of September 1968 and March 1969 so as to cover the delays that had occurred in the payment of rent for those two months
This application was dismissed by the Trial Court on 30770
It was thereafter the decree for eviction was passed
Resisting the application under Section 173 filed by the first respondent the appellant contended that since he had paid the arrears of rent as per the orders of the Court under Section 172Ab the first respondent s suit should be dismissed under Section 174 of the Act
The Trial Court rejected the contention and held that in view of the default in depositing the rent for the months of September 1968 and March 1969 within time ie before the 15th of the next succeeding month the appellant had contravened Section 171 of the Act and therefore the appellant was not enti tled to protection under Section 174
The High Court went a step further and held that even the application under Section 172Ab was not maintainable and hence the appel lant cannot raise a plea that he had paid the arrears of rent within time and as such the Trial Court should have dismissed the suit under Section 174
The High Court s reasoning is as under In our view the application under section 172Ab was not also maintainable
It is true that section 17 2Ab was made applica ble to pending suits by the Ordinance
But such applicability will be subject to the limitation imposed by sub section 2B of Section 17 namely that an application under sub section 2Ab has to be made before the expiry of the time specified in sub section 1 of Section 17 for the deposit or payment of the amount due on account of default in payment of rent
Under sub section 1 of Section 17 the time specified is one month from the service of 566 the writ of summons on the defendant or where he appears in the suit or proceeding without the writ of summons being served on him within one month of his appearance
In the instant case the summons was served on the defendants on April 6 1967
The application under section 172Ab having been filed on September 22 1967 it was barred by limita tion  
In our view after the expiry of one month of the service of summons on the defendants they had no right to avail them selves of the provisions of section 172A
Sub section 2B of section 17 having pre scribed a time limit for an application under sub section 2A no other period of limita tion can be substituted for the purpose of making an application for instalments
It is true that the Act is a remedial statute but that fact does not give the Court jurisdiction to alter the period of limitation as pre scribed by the statute for the purpose of giving relief to the tenant
If the legisla ture had intended that the tenant in a pending suit would be entitled to make an application under section 172A within one month of the date of promulgation of the Ordinance it would have expressly provided for the same as it has done in other cases covered by section 17B and 17D Having regard to the reasons given by the Trial Court and the High Court for striking out the defence of the appellant and the inapplicability of Section 174 to the case two questions fall for consideration viz 1 whether the appellant was not entitled to the benefit of Section 172Ab of the Act since the application under the subsec tion had not been filed within one month from the date of service of the writ of summons and 2 whether in any even the delayed payment of rent for the months of September 1968 and March 1969 necessarily warranted the striking out of the defence
Mr ST Desai learned counsel for the appellant contended that the decisions rendered by the trial court and the High Court are clearly unsustainable
On the contrary the learned counsel for the first respondent argued that the trial court and the High Court had acted perfectly in ac cordance with law
Taking up the first question for consideration we find that the High Court has committed an error in failing to notice the overriding effect of Section 172A and Section 5 of the Ordinance
Section 172A begins with the words Notwithstanding anything contained in sub section 1 or sub section 2 on the application of the tenant the 567 Court may by order and then sets out sub sections a b and the Proviso
Then comes the all important Section 5 of the Ordinance which is in the following terms 5
Retrospective effect
The amendments made by section 2 shall have effect in respect of all suits including appeals which are pending at the date of commencement of this Ordi nance
Emphasis supplied  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 172Ab 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 172A and Section 5 of the Ordinance are read con jointly it may be seen that it was the intention of the legislature to extend the benefit of sub section 2A to all pending suits and appeals irrespective of the fact whether the time limit of one month prescribed under Section 171 had expired or not
No other construction is possible be cause any other construction would have the effect of ren dering otiose Section 5 of the Ordinance
It is a well known rule of interpretation of law that remedial amendments have to be liberally construed so as not to deny its efficacy and it is the duty of the courts to avoid a conflict between two sections
In Madhav Rao Scindia vs Union of India AIR SC 1971 530 at 576 this Court has held as follows The Court will interpret a statute as far as possible agreeably to justice and reason and that in case of two or more interpretations one which is more reasonable and just will be adopted for there is always a presumption against the law maker intending injustice and unreason 
A provision in a statute will not be construed to defeat its mainfest pur pose and general values which animate its structure
 In Dy
Custodian vs Offl
Receiver  at 225 it was held as follows If it appears that the obvious aim and object of the statutory provisions would be frustrat ed by accepting the literal construction suggested by the respondent then it may be 568 open to the court to enquire whether an alter native construction which would serve the purpose of achieving the aim and object of the Act is reasonably possible
 It was the intention of the Legislature to restrict the benefits given under Section 172A 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 subsection 2A under Section 5 of the Ordinance
It has therefore to be held that all ten ants against whom suits or appeals were pending on the date of the promulgation of the Ordinance were entitled to seek the benefit of Section 172A by filing an application within one month from the date of promulgation of the Ordi nance
The High Court was therefore in error in holding that the application under Section 172Ab 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 ie asking the appellant to file an application under Section 172Ab which came into force on 26867 within one month from 6467 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 in so far as the payment of arrears for the period ending 29268 is concerned the appellant had complied with the orders of the Court under Section 172Ab and was therefore entitled to claim the benefit of Section 174
The second question now remains for consideration
The trial court and the High Court have taken the view that the delayed payment of rent for the months of September 1968 and March 1969 attracted the striking out of the defence under Section 173 of the Act
Sub sections 3 and 4 are worded as under 3 If a 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 allowed under clause a of sub section 2A or fails to deposit or pay any instalment permitted under clause b of sub section 2A within the time fixed therefore the Court shall order the defence against delivery of posses sion to be struck out and shall proceed with the hearing of the suit 4 If a tenant makes deposit or payment as required by sub section 1 sub section 2 or sub section 2A no decree or order for delivery of possession of the prem ises 569 to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord Provided that a tenant shall not be entitled to any relief under this sub section if having obtained such relief once in re spect of the premises he has again made default in the payment of rent for four months within a period of twelve months
 Perhaps on a rigid construction of sub section 3 without reference to sub section 4 it may be said that the failure to pay the rent for the months of September 1968 and March 1969 by the 15th of the next succeeding month may afford ground for striking out the defence of the appellant
But then sub section 3 has to be read and understood with reference to sub section 4 also and in particular its Proviso
Sub section 4 lays down that when a tenant makes payments as required by sub sections 1 2 or 2A no decree or order for delivery of possession shall be made on the ground of default in payment of rent by the tenant
The Proviso sets out that a tenant who has obtained relief under sub section 4 is not entitled to seek relief once again under the sub section if he has again made default in the payment of rent for 4 months within a period of 12 months
Emphasis supplied  The Proviso therefore makes it clear that if the subsequent default is for a period less than 4 moths within a period of 12 months the tenant can claim relief under the sub section once again
In this case the previous arrears related to the period ending with 2921968 and those arrears had been paid in compliance of the Court s order
The appellant was therefore entitled to ask for the dismissal of the suit
In so far as the subsequent default is concerned it is well within the limitations prescribed by the proviso to sub section 4
The default is only for two months and that too in a period of 13 months
The appel lant will therefore be entitled to the protection of the proviso
The trial court and the appellate court have failed to notice this aspect of the matter
Even if the proviso is viewed in a limited sense as being attracted only to those cases where there has been full and complete compliance with the provisions of sub section 1 or 2 or 2A of Section 17 and will not apply to a case as the one on hand the appellant cannot be denied relief because the words shall order the defence against delivery of possession to be struck out occurring in Sec tion 173 have to be construed as a directory provision and not a mandatory provision 570 as the word shall has to be read as may
Such a canon of construction is warranted because otherwise the intendment of the Legislature will be defeated and the class of tenants for whom the beneficial provisions were made by the Ordi nance and the amending Act will stand deprived of them
We may only refer to two decisions of this Court on this aspect of the matter
In Govindal Chhagganlal Patel vs Agricultural Produce Market Committee Godhra   Chandrachud CJ speaking for the Court approved the following passage in Crawford on Statutory Construc tion  Ed 1940 article 261 p 516 SCC p 487 para 13 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 provision but also while considering its nature its design and the consequence which would follow construing it the one way or the other
 In Ganesh Prasad Sah Kesari vs Lakshmi Narain Gupta  this Court dealing with a similar provision for striking out of defence in Section 11A of the Bihar Build ings Lease Rent and Eviction Control Act 1947 referred to Govindlal Chhagganlal Patel s case supra and held as follows Applying this well recognised canon of construction the conclusion is inescapable that the word shall  used in the provision is directory and not mandatory and must be read as may 
 Once the word shall used in Section 173 is read as may and consequently the provision for striking out of the defence is to be read as directory and not mandatory then it follows that the Court is vested with discretion to order either striking out of the defence or not depending upon the circumstances of the case and the interests of justice
This Court has consistently taken the view that if the Court  has the discretion not to strike out the defence of the tenant committing default in payment or deposit of rent as required by a provision in any Rent Restriction Act then the Court surely has the further discretion to condone the default and extend the time for payment or deposit and such a discretion is necessary implication of the discretion not to strike out the defence
We may only refer in this connection to three earlier 571 decisions of this Court
Shyamcharan Sharma vs Dharamdas  is a case which arose under the Madhya Pradesh Accommodation Control Act 1961
Santosh Mehta vs Om Prakash and Anr  and Ram Murti vs Bhola Nath and Another were cases which arose under the Delhi Rent Control Act 1958
The Rent Control Act of Madhya Pradesh as well as the Rent Control Act of Delhi provided that if a tenant failed to make payment or deposit as required by the Section the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application
In all these cases it has been uniformly held that the powers of discretion vested in the Rent Controller give him further right to condone the delay in deposit or payment of rent for the subsequent months
In this case the default was not one of non payment of the arrears or the rent for the subsequent period
The default pertained to belated payments of rent for two months and was therefore a default in the technical sense than in the real sense and hence of an inconsequential nature
Having regard to the intendment of the Act and the nature of the provisions it can never be said that the defaults were of such a serious nature  as to warrant the court refusing to exercise its discretion and to feel constrained to strike out the defence
Such being the case the answer to the second question has also to be in favour of the appellant
The subordinate courts and the High Court were in error in holding that the delayed payment of rent for the months of September 1968 and March 1969 constituted such defaults as necessarily warranted the striking out of the defence under Section 17
In the light of our conclusions the appeal succeeds and will accordingly stand allowed
The suit filed by the first respondent will stand dismissed
In so far as the petitions for impleadment are con cerned though we heard the arguments of the counsel for the parties we do not think their presence is necessary in the appeal and hence both the petitions are dismissed
The parties will pay and bear the respective costs
APJ Appeal allowed and Petitions dismissed


Summary:
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 flied an application under s172 of the West Bengal Premises Tenancy Act 560 1956 to seek the orders of the Court regarding the amount of rent payable to the landlord
During the pendency 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 26867
By s2 of the Ordinance subs2A and 2B to s17 of the Act were inserted
Section 5 of the Ordinance gave retro spective 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 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
To avail the benefit of amended provisions the appellant preferred an application within one month under s2Ab praying for payment of arrears of rent in instalments
The trial Court fixed the amount of arrears payable and allowed the payment thereof in three instalments
The appellant paid the entire arrears of rent on 31770 covering the period ending with 29268
In the meanwhile the first respondent had filed an application under s173 for striking out the defence of the appellant against the delivery of possession of the demised premises for non compliance with the terms of s171
Resisting the application the appellant contended that since he had paid the arrears of rent as per the orders of the Court under s172Ab the first respondent s suit should be dismissed under s174
The trial Court allowed the application and struck out of the defence the appellant on the ground that in paying the rent for the months of September 1968 and March 1969 there had been a delay and thus the appellant had contravened s171 and therefore he was not entitled to protection under section 174
The appli cation filed by the appellant under section 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 Court
The High Court held that even an application under s172Ab was not maintainable and hence the appellant cannot raise a plea that he had paid the arrears of rent within time and the trial Court should have dismissed the suit under section 174
Allowing the Appeal and dismissing the Civil Miscellane ous Petitions 561 HELD 1
When s172A of the West Bengal Premises Tenancy Act 1956 and s5 of the West Bengal Premises Tenan cy Amendment Ordinance No VI of 1967 are read conjointly it is clear that the intention of the legislature was to extend the benefit of subs 2A to aH pending suits and appeals irrespective of the fact whether the time limit of one month prescribed under s171 had expired or not
Any other construction would have the effect of rendering otiose s5 of the Ordinance
Since the Ordinance came to be re placed long after by the Act s 5 of the Ordinance was not reproduced in the Act
It is significant that s5 of the Ordinance entitled the appellant to file an application under s172Ab in the suit filed by the first respondent which was pending then
The High Court has looked only into the Act and not the Ordinance and that is how s5 of the Ordinance has escaped its notice
The High Court has there fore committed an error in failing to notice the overriding effect of section 172A and s5 of the Ordinance
567C E 2
If the intention of the legislature was to restrict the benefits given under s172A 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 retrospectively to s2A under s5 of the Ordinance
It has therefore to be held that all tenants against whom suits or appeals were pending on the date of the promulga tion of the Ordinance were entitled to seek the benefit of s172A by filing an application within one month from the date of the promulgation of the Ordinance
The High Court was therefore in error in holding that the application under s172Ab was itself not maintainable
568B C 3
Remedial amendments have to be liberally construed so as not to deny its efficacy and it is the duty of the courts to avoid a conflict between two sections
567E Madhav Rao Scindia vs Union of India AIR SC 1971 530 at 576 and Dy
Custodian vs Offl
Receiver  at 225 relied upon
In so far as the payment of arrears for the period ending 29268 is concerned the appellant had complied with the orders of the Court under s172Ab and was there fore entitled to claim the benefit of s174
568E 5
Sub section 3 has to be read and understood with reference to sub s4 also and in particular its Proviso
Sub section 4 lays down that when a tenant makes payment as required by sub s1 2 or 2A 562 no decree or order for delivery of possession shall be made on the ground of default in payment of rent by the tenant
The Proviso sets out that a tenant who has obtained relief under subs4 is not entitled to seek relief once again under the sub section if he has again made default in the payment of rent for 4 months within a period of 12 months
The Proviso therefore makes it clear that if the subse quent default is for a period less than 4 months within a period of 12 months the tenant can claim relief under the sub section once again
569C E In the instant case the previous arrears related to the period ending with 29268 and those arrears had been paid in compliance of the Court s order
The appellant was therefore entitled to ask for the dismissal of the suit
In so far as the subsequent default is concerned it is well within the limitations prescribed by the Proviso to sub section 4
The default is only for two months and that too in a period of 13 months
The appellant will therefore be entitled to the protection of the proviso
569E F 6
The words shall order the defence against delivery of possession to be struck out occurring in s173 have to be construed as a directory provision and not a mandatory provision as the word shall has to be read as may
Such a canon of construction is warranted because otherwise the intendment of the legislature will be defeated and the class of tenants for whom the beneficial provisions were made by the Ordinance and the Amending Act will stand deprived of them
569H 570A B Govindlal Chhagganlal Patel vs Agricultural Produce Market Committee Godhra   and Ganesh Prasad Sah Kesari vs Lakshmi Narain Gupta   relied upon
Once the word shall used in s173 is read as may and consequently the provision for striking out of defence is to be read as directory and not mandatory then it follows that the Court is vested with discretion to order either striking out of defence or not depending upon the circumstances of the case and the interest of justice
If the Court has the discretion not to strike out the defence of the tenant committing default in payment for deposit of rent as required by a provision in any Rent Restriction Act then the Court surely has the further discretion to condone the default and extend the time for payment or deposit and such a discretion is a necessary implication of the discre tion not to strike out the defence
570F H 563 Shyamcharan Sharma vs Dharamdas   Santosh Mehta vs Om Prakash and Anr  and Ram Murti vs Bhola Nath and Another  relied upon
In the instant case the default was not one of non payment of the arrears of the rent for the subsequent peri od
The default pertained to belated payment of rent for two months and was therefore a default in the technical sense than in the real sense and hence of an inconsequential nature
Having regard to the intendment of the Act and the nature of the provisions it can never be said that the defaults were of such a serious nature as to warrant the court refusing to exercise its discretion and to fell con strained to strike out the defence
571C E