MOOKERJEE, CJ.

(1) BY their order, dated the 10th August, 1984 of Anil Kumar Sen and S. R. Roy, JJ, this revision has been placed before the Special Bench for answering the question whether or not poverty would be a ground for condonation of delay in depositing monthly rent in terms of Section 17 (1) of the West Bengal Premises Tenancy Act. The plaintiff opposite parties have brought a suit for eviction of the defendant petitioner on the ground of their reasonable requirement for use and occupation of the suit premises. After entering appearance, the defendant had made an application under sub-section (2a) of Section 17 of the West Bengal Premises Tenancy Act. By his order, dated the 18th August, 1978, the learned Munsif determined a sum of Rs. 1750 as the total arrear rent due and the interest payable thereon and directed the defendant petitioner to pay or deposit the said amount by instalment of Rs. 350 per month. It is not very much disputed that the defendant tenant had fully complied with the said order for deposit bypassed by the court below in terms of Section 17 (2a) (b) of the said Act.

(2) THE defendant tenant had been also depositing current rent in terms of second part of sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act. He had, however, deposit rent for October, 1979 on 23rd November, 1979. He deposited rent for November, 1979 on 13th January, 1980. The rent for May, 1980 was deposited on 17th June, 1080. But along with the said delayed deposit the defendant tenant did not apply for condonation of delay or for extension of time for depositing the said rent for months of October, 1979, November, 1979 and May, 1980.

(3) ON 12th March, 1982 the plaintiff landlord opposite parties had filed in the Trial Court an application under Section 17 ((3) of the West Bengal Premises Tenancy Act for striking off the balance of the defendant tenant on the ground that he had failed to comply with the requirement of sub-section (1) of Section 17 of the said Act. At that stage, on 17th June, 1982 the defendant for tenant petitioner filed in the Trial Court an application for treating the deposits for the months of October, 1979, November, 1979 and May, 1980 as valid deposits by extending the time and condoning the delay. In the first paragraph of the said petition which was described to be under Section 151 of the Code of Civil Procedure, the tenant alleged that he was financially handicapped and as such he could not arrange for the money in order to deposit the rents for the said three months. In paragraph 8 of the said petition under Section 151 of the Code the defendant tenant claimed that because of bona fide reasons of his financial crisis be could not deposit in time. Therefore, necessary orders might be passed for treating the said deposit as valid. The learned Munsif upheld the objection of the plaintiff landlords and dismissed the defendant tenant's petition for condonation of delay and for extension of time for depositing the rent for the aforesaid three months. No order as yet had been made upon the plaintiff's application under Section 17 (3) of the West Bengal Premises Tenancy Act. Being aggrieved, by the order of rejection of his prayer for condonation of delay, the defendant petitioner moved a revisional application upon which the learned Single Judge had issued the present Rule. The Rule was referred to the Division Bench and the Division Bench in its turn has referred the same for disposal by a larger Bench.

(4) HAVING heard the parties, we slightly re-formulated the points for decision as follows :

(1)Has the court any jurisdiction to condone the delay or to extended the time for deposit or payment of sums specified in sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act (2)If the court has such jurisdiction, is poverty or financial handicap of the defendant tenant a ground for condonation of delay or extension of time in making deposit or payment under sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act

(5) IN view of the recent decision of A. P. Sen, and S. Natarajan, JJ. in the case of M/s. B. P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick and Another, A. I. R. 1987 SC 1010 [LQ/SC/1987/285 ;] ">1987 SC 1010 [LQ/SC/1987/285 ;] [LQ/SC/1987/285 ;] it is no longer necessary for us to deal at length with the points which arise for decision in the present reference. For the same reason, it has become unnecessary for us to set out the various reported decisions of this court regarding the scope and effect of different sub-sections of the West Bengal Premises Tenancy Act and also regarding the extent of the court's jurisdiction to condone the delay or to extend the time for deposit or payment of the sums specified in sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act. We are bound by the decision of the Supreme Court in the case of M/s. B. P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick (supra,). In B. P. Khemka Pvt. Ltd's case (supra), the defendant tenant had deposited under Section 17 (1) of the West Bengal Premises Tenancy Act rents for September, 1968 and March, 1969 beyond the prescribed time. Thereupon, the landlord had applied for striking off the defence of the defendant. On 13th June, 1970 the tenant had filed an application for extension of time for depositing the rents for the aforesaid two months. The Trial Court rejected the same and passed an order under Section 17 (3) of the said Act. The Supreme Court allowed the tenant's appeal against the High Court's judgment dismissing the tenant's appeal from the ejectment decree. The Supreme Court held that the discretionary power of striking off the defence ought to have been exercised and an ejectment decree ought not to have been passed for delayed payment of rents for September, 1968 and March, 1969. In paragraph 15 of the judgment in the case of M/s. B. P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick (supra), it has been laid down :

"once the word 'shall' used in Section 17 (3) is read as 'may' and consequently the provisions 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 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 of deposit and such a discretion is a necessary implication of the discretion not to strike out the defence. "

(6) IN the case of M/s. B. P. Khemka Pvt. Ltd. vs. Birendra Kumar Bhowmick (supra), the Supreme Court did not indicate whether also in exercise of its inherent powers, the court can condone a default in payment of rent or extend the time deposit rent prescribed by sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act. In the case of M/s. B. P. Khemka Pvt. Ltd. the court held that because Section 17 (3) the West Bengal Premises Tenancy Act is discretionary, therefore, by implication the court has power to extend time under Section 17 (1) of the said Act for depositing the rent or condonation of delay in making the said deposits. In the said reported case while making belated deposits of rent for two months, the tenant did not simultaneously apply for condonation of delay or for extension of time. The tenant had made such prayer for condonation of delay only after the landlord applied under Section 17 (3) of the said Act. Therefore, it is difficult to escape the conclusion that a belated deposit of rent under Section 17 (1) of the said Act may be also accompanied by an application for condonation of delay. If the court is satisfied it may condone the delay or extend the time, as the case may be. Attention has been drawn to the recent decision of Mitra, J. in the case of M/s. Dwarka Das Raghubir Prasad reported in 1987 (1) C. L. J. 479. Mitra, J. has inter alia held that the court possesses power under Section 17 (2a) read with Section 5 of the Limitation Act to extend the time for deposit or payment of the sums mentioned both in sub-sections (1) and (2) of Section 17 of the West Bengal Premises Tenancy Act. For deciding this reference, it is unnecessary to pursue at length this point.

(7) IN the case of M/s. B. P. Khemka Pvt. Ltd. (supra), the Supreme Court at page 1014 paragraph 15 indicated the exercise of court's discretion under Section 17 (3) of the West Bengal Premises Tenancy Act in the interests of justice. It necessarily follows that also in deciding whether a delay in making deposit or payment under Section 17 (1) of the Act, the court ought to apply the same legal tests. It is neither possible nor desirable to exhaustively mention the circumstances under which delay in deposit or payment of rent as required by Section 17 (1) of the said Act may be condoned. Obviously, when such a delay occurs because of any mistake or error on the part of the court itself, the same ought to be condoned. There may also other circumstances beyond the control of the defendant which may result in causing delay in deposit or payment of rent under Section 17 (1) of the Act, viz. , civil commotion, general strike, natural calamity, etc. Some of these unforeseen circumstances were mentioned by the Division Bench in the case of Sitala Devi v. Man Bahadur, 76 C. W. N. 435 at page 443. Financial or economic position of a tenant is also not totally irrelevant for the purpose of deciding whether in a particular case circumstances exist for condoning delay or extending the time for deposit of rent. We may note that the legislature in Section 17 (2) (A) (b) of the West Bengal Premises Tenancy Act mentioned circumstances of the tenant and also of the landlord as relevant considerations for making an order permitting the tenant to deposit the arrear rent by instalment. In the case of Ramendra Krishna Bose v. Sm. Monjushree Bhattacharya, 1978 (1) C. L. J. 393 the Division Bench had referred to the decision of P. C. Borooah, J. in the case of Sk. Shajahan v. Sm. Shyama Devi, 1977 (2) C. L. J. 393. The Division Bench in Ramendra Krishna Bose's case (supra), concurred with the view of Borooah, J. that for ends of justice delay in deposit of rent for one or two months due to circumstances beyond his control may be condoned. In Ramendra Krishna Bose's ease (supra), the tenant had pleaded his illness as a ground for condoning the delay in deposit. The Division Bench while recognising when there were extraordinary circumstances the court might condone the delay; had remanded the matter for giving an opportunity to the tenant to establish his claim that at the relevant time he was ill at Madras. Both the Division Bench in the case of Ramendra Krishna Bose and the Single Bench case in Sk. Shajahan (supra) are authorities for the proposition that for ends of justice delay in deposit of rent made under Section 17 (1) of the West Bengal Premises Tenancy Act may be condoned if there were exceptional circumstances. The Division Bench in the later case of Ramendra Krishna Bose v. Sm. Manjushree Bhattacharya (supra), did not differ from the views expressed by the Division Bench in earlier case of Sitala. Devi v. Man Bahadur (supra). In fact, in their judgment in Ramendra Krishna Bose's case (supra), the Division Bench had referred to the earlier Division Bench decision in Sitala Devi's case (supra). It is quite possible to reconcile the aforesaid two Division Bench decisions. Whenever a tenant applies for condoning the delay in deposit of rent he must establish that there were extraordinary circumstances which caused the tenant to involuntarily commit a breach of sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act to deposit the rent for the month or months in question beyond the prescribed time. When voluntarily and by his own laches a tenant deposits the rent or pays rents beyond the time fixed by Section 17 (1) of the said Act, the court would certainly refuse to exercise its discretion in favour of such a defaulting tenant, and would reject his prayer for condonation of delay in making the deposit. The Division Bench in the case of Sitala Devi (supra), was not wrong in pointing out that the liability of a tenant to deposit rent is a recurring one and the same is always a part of the consideration for allowing him to use and occupy the premises let out to him. Therefore, in the event a tenant persistently and repeatedly makes late deposits or does not at all deposit or pay rent without any valid and sufficient cause, his plea for condonation of delay or for extension of time on the ground of this poverty may not be considered as sufficient ground for exercising court's discretion in favour of a habitual defaulter. On the other hand, a tenant who had been regularly depositing or paying rent under sub-section (1) of Section 17 of the said Act, due to financial or economic difficulties makes delayed deposit or payment or rent on a single or a few occasions, the court may consider the said circumstances of the tenant to be an unforeseen one warranting exercise of court's power to condone the delay in making the said deposits of payments. We may point out that in case a tenant because of his poverty or other reasons had been unable to pay or deposit in time rent prior to the institution of the ejectment suit against him, he may within the time prescribed by Section 17 (2) (B) of the West Bengal Premises Tenancy Act apply either under Clause (a) or under Clause (b) of Section 17 (2) (A) of the said Act. In making an order allowing instalment under Section 17 (2a) (b) of the Act, the court is required to take into consideration the circumstances both of the tenant and of the landlord. The expression 'circumstances' in said Clause (4) is wide enough to include financial or economic conditions. Therefore, inspite of his alleged financial or economic difficulties, when a tenant did not in time avail of the provisions of Section 17 (2a) of the said, Act and did not also deposit or pay arrear and current rent in terms of sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act, the court ought not to exercise its discretion in favour of such a tenant by extending the time for deposit or payment. Therefore, it would depend upon the facts of each particular case relating to the period of default, extent of the default, the conduct of the tenant, and other relevant circumstances whether the principles laid down in Sitala Devi's case (supra), ought to be applied or the court would condone the delay or extend the time in the light of thy law laid down by the later Division in the case of Ramendra Krishna Bose v Sm. Manjushree Bhattacharjee (supra).

(8) HOW do we come to the facts of the present case. The Trial Court had rejected the defendant tenant's prayer for condonation of delay and/or extension of time for deposit of the rent for the aforesaid three months. The Trial Court, however, did not simultaneously dispose of the plaintiff's application under Section 17 (3) of the West Bengal Premises Tenancy Act for striking off the defendant's defence on the ground that the defendant did not make timely deposits of rent for the aforesaid three months. In case the plaintiff applies for passing of an order under Section 17 (3) of the West Bengal Premises Tenancy Act and the defendant prays for condonation of delay and/or for acceptance of rents which had been deposited beyond time, in the interest of justice both the matters ought to be heard together. As observed by the Supreme Court the power to condone delay in deposit or payment of rent and/or to extend the same is a corrolary to court's discretionary power to strike off the defence of a defendant who has failed to comply with Section 17 (1) of the said Act. The plaintiff's prayer under Section 17 (3) of the Act and the defendant's prayer for condonation of delay in making the deposits for the aforesaid three months ought to be considered afresh in the light of the observations of the Supreme Court in the case of M/s. B. P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick (supra). Therefore, we set aside the order complained of and direct the learned Munsif to again take up the plaintiff's application under Section 17 (3) of the West Bengal Premises Tenancy Act and the defendant's petition for condonation of delay. The court below will consider in accordance with law whether in the facts and circumstances of the case the defendant's prayer for condonation of delay ought to be rejected and his defence ought to be struck off or his said prayer for condonation ought to be allowed and the plaintiff's application under Section 17 (3) of the West Bengal Premises Tenancy Act ought to be rejected. We ourselves express no opinion on the above question. We give liberty to both parties to file affidavits in support of their respective cases. After disposing of the said matter, the Trial Court will expeditiously dispose of the suit which has been pending for nearly a decade.

(9) WE answer the reference in the following manner:

(1) The Court has jurisdiction to condone the delay or to extend the time for deposit or payment of sums specified in sub-section (1) of Section 17 of the West Bengal Premises Tenancy Act in the manner and to the extent indicated in the judgment of the Supreme Court in the case of M/s. B. P. Khemka Pvt. Ltd. v. Binendra Kumar Bhowmick, A. I. R. 1987 S. C. 1010. (2) In exercising its power to condone delay or to extend time for delayed deposit or payment of rent under Section 17 (1) of the West Bengal Premises Tenancy Act, the Court is bound to take into consideration the circumstances of each particular case. Poverty or financial handicap of a defendant tenant who may have deposited or paid rent beyond the time prescribed by Section 17 (1) of the West Bengal Premises Tenancy Act may constitute sufficient cause for condonation and/or extension of time by the Court.

(10) WE dispose of the reference and the revision case in the above terms. There will be no order as to costs.

(11) LET a copy of this order along with the records be sent down to the Court below by special messenger expeditiously, if costs be put in by either of the parties. Monoranjan Mallick, J : I agree. Sudhanshu Sekhar Ganguly, J : I agree. Reference disposed of