BHARGAVA, J.—This is a reference by the learned single Judge referring the following questions for an authoritative pronouncement. Honble the Chief Justice was pleased to constitute this Bench to decide these questions of law.

"(1) Whether the provisions of Sec. 5 of the Limitation Act can be applied in the matter of depositing of rent u/s 13 (4) of the Act, 1950?

(2) Whether the court has no power even in the interest of justice and equity, to extend time beyond the limit prescribed u/s 13(4) of the Act?

(3) Whether Sec. 13(5) of the Act is directory?"

2. Learned counsel for the petitioner has submitted that a Division Bench of this Court in Gopal Das V. Nathu Lal (1) held that the Act is a special law and does not expressly exclude provisions of the Limitation Act. As Sec. 5 of the Limitation Act has not been expressly excluded under the provisions of the Act, Sec. 5 of the Limitation Act would be applicable for application filed u/s 13-A(b) in view of the Sec. 29(2) of the Limitation Act. This authority was not brought to the notice of another division bench which decided the case Kriparam Ganeshi Lal V. Vijay Kumar Goyal (2) wherein the division bench held that the court had no power to extend the time beyond three months. Section 13(4) and 13(5) of the Rent Control Act are imperatively mandatory and not directory or permissive and therefore, the trial court had no power to extend time but it should strike out the defence for not depositing the arrears of rent determined by the court u/s 13(4) within the extended time.

3. Learned counsel for the petitioner has also brought to our notice Shyam Charan V. Dharam Das (3) where the Bench consisting of Justice V.R. Krishna Iyer, R. S. Pathak and G. Chinnappa Reddy while dealing with the N.P. Accommodation Control Act, held that where a tenant deposits the arrears of rent within time allowed by the court but during the pendency of suit for eviction and appeal thereto deposits the monthly rent a day or two beyond the prescribed date on some occasion, the court had discretion to condone the delay, and if the court granted extension of time for payment of monthly rent, the tenant would not be liable to eviction and his defence should not be struck out for non payment of rent before the due date.

4. He has also brought to our notice another judgment of the Supreme Court in Miss Santosh Mehta v. Om Prakash (4) wherein also, their lordships of the Supreme Court while dealing with the Delhi Rent Control Act, held that the striking out defence of a tenant is a harsh extreme and having regard to the benign scheme of the legislation this drastic power is meant for use in grossly recalcitrant situation where a tenant is guilty of disregard in paying rent. There must be willful failure, deliberate default or volitional non-performance. It was further held that if a tenant fails of refuse to pay or deposit rent and the court discerns a mood of defiance or gross negligence, the tenant may forfeit his right to be heard in defence. In that case, it was further observed that if a tenant who was a working woman regularly paid rent to an Advocate but he in turn did not deposit the same in court or paid to the landlord in time, it could not be said that she failed to pay or deposit, in any way. No case for punitive exercise of discretion to strike out the defence had been made out.

5. He also brought to our notice still another judgment of the Supreme Court in Ram Murti Vs. Bholanath (5) where also their lordships while considering the Delhi Rent Control Act, relying on Shyama Charan and Santosh Mehtas cases (supra), held that the Rent Controller had power to condone default or extend time.

6. Learned counsel for the petitioner also placed reliance on Ganesh Prasad Shah Kesri V. Laxmi Narain (6) where their lordships were dealing Bihar Buildings (Lease, Rent and Eviction) Control Act, and while interpreting Sec, 11 A their lordships held that word "shall" appearing in this Sec. is directory and not mandator

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