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PETITIONER: B.P. KHEMKA PVT. LTD.

       Vs.

RESPONDENT: BIRENDRA  KUMAR BHOWMICK & ANR.

DATE OF JUDGMENT06/03/1987

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) SEN, A.P. (J)

CITATION:  1987 AIR 1010            1987 SCR  (2) 559  1987 SCC  (2) 407        JT 1987 (1)   665  1987 SCALE  (1)537  CITATOR INFO :  E&F        1989 SC 291  (7)  E&F        1989 SC1534  (10,12)

ACT:     West  Bengal Premises Tenancy Act, 1956---S. 17(1),  (2) and (2A)--West Bengal Premises Tenancy (Amendment) Ordinance VI of 1967--Ss.2 and 5--Rent--Default in payment  of--Appli- cation  before Court for payment of rent arrears in  instal- ment  under  s. 17 (2A) (b) of 1956 Act  (as  introduced  by Ordinance VI of 1967)--Time limit For filing--Reading s.  17 (2A)   (b)   of  1956  Act  conjointly  with  s.5   of   the Ordinance--All tenants against whom suits or appeals pending on the date of promulgation of Ordinance entitled to benefit of  s. 17 (2A) by filing application within one  month  from the date of promulgation of the Ordinance--Limitation of one month  prescribed  by s. 17(1) of 1956  Act  inoperative  by virtue  of s.5 of the Ordinance making it  effective  retro- spectively.     West  Bengal Premises Tenancy Act, 1956---S.  17(3)  and (4)  Proviso--Second default in payment of rent  within  the meaning of Proviso to s. 17(4)  Must be for four months  and above within 12 months-Tenant’s defence against delivery  of possession--Cannot  be struck out if subsequent  default  is for   a   period  of  less  than  four  months   within   12 months--Eviction  suit  on ground of default  liable  to  be dismissed-Section 17(3)---Word ’shall’ being directory to be read  as  ’may’-Discretion  of the  Court--To  order  either striking  out  of defence or not--Depends upon  the  circum- stances of the case and interest of justice--If court  exer- cises discretion not to strike out defence-Court has further discretion  to condone the default and extend time for  pay- ment of deposit.     Interpretation  of statutes--Remedial amendments--To  be construed  liberally--Duty of Court--To avoid  conflict  be- tween two sections--Mendatory or directory--Whether  ’shall’ used as ’may’--Depends upon legislative intent.

HEADNOTE:     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

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the  alleged default and flied an application under  s.17(2) 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 26.8.67. By  s.2 of the Ordinance subs.(2A) and (2B) to s.17  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  s.(2A)(b) 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 31.7.70 covering  the  period ending with 29.2.68.     In  the  meanwhile  the first respondent  had  filed  an application  under s.17(3) for striking out the  defence  of the  appellant  against the delivery of  possession  of  the demised  premises  for  non-compliance  with  the  terms  of s.17(1).  Resisting the application the appellant  contended that since he had paid the arrears of rent as per the orders of the Court under s.17(2A)(b), the first respondent’s  suit should  be dismissed under s.17(4). The trial Court  allowed the application and struck out of the defence the  appellant on  the  ground that in paying the rent for  the  months  of September  1968  and March 1969 there had been a  delay  and thus  the appellant had contravened s.17(1) and,  therefore, he was not entitled to protection under s. 17(4). The appli- cation filed by the appellant under s. 148 CPC for extension of  time for deposit of amount for the months  of  September 1968 and March 1969 was dismissed. The suit was decreed  and the  decree  confirmed by the Appellate Court and  the  High Court.  The High Court held that even an  application  under s.17(2A)(b)  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 s. 17(4).     Allowing the Appeal and dismissing the Civil Miscellane- ous Petitions, 561     HELD:  1.  When  s.17(2A) of the  West  Bengal  Premises Tenancy Act, 1956 and s.5 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 sub.s (2A) to aH pending  suits  and appeals  irrespective of the fact whether the time limit  of one  month prescribed under s.17(1) had expired or not.  Any other construction would have the effect of rendering otiose s.5  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 s.5  of  the Ordinance  entitled  the appellant to  file  an  application under s.17(2A)(b), 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 s.5  of  the Ordinance has escaped its notice. The High Court has, there-

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fore, committed an error in failing to notice the overriding effect of s. 17(2A) and s.5 of the Ordinance. [567C-E]     2.  If the intention of the legislature was to  restrict the  benefits  given under s.17(2A) 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 s.(2A) under s.5 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 s.17(2A) 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 s.17(2A)(b) 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 v. Union of India, AIR S.C. 1971  530 at 576 and Dy. Custodian v. Offl. Receiver, [1965] 1 SCR 220 at 225, relied upon.     4.  In so far as the payment of arrears for  the  period ending 29.2.68 is concerned, the appellant had complied with the  orders of the Court under s.17(2A)(b) and  was,  there- fore, entitled to claim the benefit of s.17(4). [568E]     5.  Sub-section (3) has to be read and  understood  with reference  to sub-s.(4) also and in particular its  Proviso. Sub-section (4) lays down that when a tenant, makes  payment as required by sub-s.(1), (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  sub.s.(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. 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 29.2.68 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 s.17(3) 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  v.  Agricultural  Produce Market Committee, Godhra, [1976] 1 SCR 451; [1975] 2 SCC 482 and Ganesh Prasad Sah Kesari v. Lakshmi Narain Gupta, [1985] 3 SCC 53, relied upon.     7.  Once  the word "shall" used in s.17(3)  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

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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  v.  Dharamdas, [1980]  2  SCR  334; Santosh  Mehta v. Om Prakash and Anr., [1980] 3 SCR 325  and Ram  Murti  v.  Bhola Nath and Another, [1984]  3  SCR  111, 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]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1262  of 1979     From  the Judgment and order dated 3.4.1978 of the  High Court  of  Judicature at Calcutta in Appeal  from  Appellate Decree No. 1700 of 1972. S.T. Desai and M.L. Verma for the Appellants. Govind Mukhoty and R.P. 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

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and  also  filed an application under Section 17(2)  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 26.8.67. 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 22.9.67  i.e.  within one  month  from the date of promulgation of  the  Ordinance under  Section 17(2A)(b) 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. 13,602 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 Rs.9,752 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 31.7.70. It may  be  stated here  that  the  payment  covered  the  period  ending  with 29.2.1968  i.e.  upto the end of the month previous  to  the date on which Order No. 39 was made, viz. 16.3. 1968. 565     In  the  meanwhile  the first respondent  had  filed  an application under Section 17(3) for striking out the defence of  the appellant against the delivery of possession of  the demised premises for noncompliance with the terms of Section 17(1). On 14.3.70 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  17(1) 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  13.6.70  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 30.7.70. It was  thereafter the decree for eviction was passed.     Resisting  the application under Section 17(3) 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 17(2A)(b), the first respondent’s suit  should be dismissed under Section 17(4) 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 i.e. before the 15th  of  the  next succeeding  month,  the appellant  had  contravened  Section 17(1) of the Act and therefore, the appellant was not  enti- tled to protection under Section 17(4). The High Court  went a  step  further and held that even  the  application  under

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Section 17(2A)(b) 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 17(4). The  High  Court’s reasoning is as under:-               "In  our view, the application  under  section               17(2A)(b)  was  not also maintainable.  It  is               true that section 17 (2A)(b) 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 (2A)(b) 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 17(2A)(b) 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  17(2A).               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 17(2A) 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 17(4)  to  the case, two questions fall for consideration, viz. (1) whether the  appellant  was not entitled to the benefit  of  Section 17(2A)(b) 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. S.T. 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.

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   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 17(2A) and Section 5 of  the  Ordinance.  Section 17(2A) 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 17(2A)(b),  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  17(2A) 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  17(1) 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 v. Union of India, AIR  S.C. 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 v. Offl. Receiver, [1965] 1 SCR 220 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 17(2A) 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-

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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 17(2A) 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 17(2A)(b) 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 i.e. asking the appellant to file an  application under  Section  17(2A)(b) which came into force  on  26.8.67 within  one  month  from 6.4.67 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 29.2.68 is concerned, the appellant had complied with the  orders  of the Court under Section  17(2A)(b)  and  was therefore entitled to claim the benefit of Section 17(4).     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  17(3)  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.

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(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 29.2.1968 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 17(3) 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 v. Agricultural Produce Market Committee, Godhra, [1976] 1 SCR 451: [1975] 2 SCC  482, Chandrachud, C.J. speaking for the Court  approved the  following passage in Crawford on  ’Statutory  Construc- tion’ (Ed. 1940, Art. 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 v. Lakshmi Narain Gupta,  [1985] 3  SCC 53 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 17(3) 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

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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  v.  Dharamdas, [1980]  2  SCR 334 is a case which arose  under  the  Madhya Pradesh Accommodation Control Act, 1961. Santosh Mehta v. Om Prakash  and Anr., [1980] 3 SCR 325 and Ram Murti  v.  Bhola Nath  and Another, [1984] 3 SCR 111 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. A.P.J.                      Appeal  allowed  and   Petitions dismissed. 572