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PETITIONER: GANESH PRASAD SAH KESARI & ANR.

       Vs.

RESPONDENT: LAKSHMI NARAYAN GUPTA

DATE OF JUDGMENT18/04/1985

BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA RANGNATH

CITATION:  1985 AIR  964            1985 SCR  (3) 825  1985 SCC  (3)  53        1985 SCALE  (1)806  CITATOR INFO :  R          1987 SC1010  (14)  APL        1989 SC 291  (5)  R          1989 SC2073  (22)  R          1989 SC2206  (21)

ACT:      The Bihar  Buildings (Lease, Rent and Eviction) Control Act 1947, Section 11A      Suit for  eviction of tenant  for default in payment of rent-Failure of   tenant  to comply  with court’s  order  to deposit rent-Striking  off defence  against eviction-Whether legal.      Interpretation of Statutes:      State-Words ’may’ and ’shall used fn different parts of a provision-Whether  mandatory or directory-Ascertainment of by the Court.      Words & Phrases:      ’Shall order  the defence  against ejectment  be struck off-Meaning of-Bihar  Building (Lease,  Rent  and  Eviction) Control Act 1947, Section 11A.

HEADNOTE:      The respondent-plaintiff  filed  a  suit  for  eviction against the  appellant defendant  on  the  ground  that  the tenant committed  default in  payment of rent. The defendant contested the suit contending that he was not in default. An application was  filed  by  the  respondent-landlord  for  a direction under Sec. 11A of the (Bihar Buildings Lease, Rent and Eviction)  Control Act,  1947 to the defendant-tenant to deposit the  rent in  arrears; and  a further  direction  to deposit the future rent from month to month. The trial judge ordered the  appellant to deposit the rent in arrears at the rate of  Rs. 32  per month  and thereafter  to  continue  to deposit the  rent at  the rate  of Rs.  12 20 per month. The defendant preferred a revision petition which was dismissed.      The suit  was fixed  for hearing.  The tenant  moved an application  for   adjournment  which   was  rejected.   the plaintiff witnesses  were examined  and the suit was decreed ex-parte.      On an  application moved  by the  defendant praying for relief under 826

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Order IX Rule 13 CPC, the trial judge set aside the ex-parte decree and set down the suit for proceeding further from the stage it was decreed ex-parte.      The respondent-landlord moved an application contending that as  there was  irregularity and delay in depositing the rent, the  defence of  the appellant  be struck  off for his failure to strictly comply with the order made under Section 11A, but  the trial judge rejected it on the ground that the earlier order  was made  prior to the date on which the suit was decreed  ex-parte; on  the setting aside of the ex-parte decree and  revival of the suit, the order giving directions for deposit  of future  rent does  not  per  se  revive  and therefore even  if there was some default on the part of the tenant in  depositing the rent, his defence cannot be struck off.      The  respondent-landlord   moved  a  revision  petition before the  High  Court.A  Division  Bench  interpreted  the expression ’shall’ in Sec. 11A of the Act, as mandatory, and finding that there was default in making the deposit for the months mentioned  in the landlords’ application, it could be shown that  there was  non-compliance with  the order passed under Sec.  11A, and therefore ’the tenant will have to bear the consequence  thereto.’ It  further  held  that  ’once  a default is  found, the  courts are  powerless; the statutory consequences are bound to follow,’ It made the rule absolute and set  aside the  order of  the trial  judge  refusing  to strike off  the defence  of the  appellant and  directed the trial judge  to note that the defence of the appellant would be deemed  to have  been struck off due to non-compliance of the order Passed under Section 11A.      Allowing the Appeal to this Court, ^      HELD:  1.   (i)  Failure  to  comply  with  an  earlier direction should  not necessarily  visit the tenant with the consequence of  his defence  being struck  off because there might  be   myriad  situations   in  which  default  may  be committed. The  Court should  adopt such  a construction  as would not render the court powerless in a situation in which ends of justice demand relief being granted. [835 F-F]      In the  instant case,  the High  Court  had  adopted  a construction of  Section 11A  of the  Act which would defeat the beneficient  nature of  the pro  vision. The decision of the High Court is set aside because it proceeds on the basis that once  there is  default, the  tenant  must  suffer  the consequences of  it. The  trial judge  held that once a suit ended in an ex-parte decree the earlier direction for making necessary  deposit   given  under   Sec.  11A  would  remain ineffective even  if the  ex-parte degree  is set  aside and would not revive, was rightly disapproved by the High Court. The trial  judge did  grant relief to the tenant by refusing to strike  off the  defence, but on an erroneous view of the law. The  High Court  reversed it  on yet  another erroneous view of  law holding  that the  court was powerless to grant any relief  once a  default is established. [835 F-H; 836 A- B]. 827      (ii) The  tenant has  deposited all  the arrears. There was some  irregularity in  making the deposit but it was not of such a nature as to visit the tenant with the consequence of striking  off his defence. The judgment of the High Court directing that the defence be deemed to be struck off is set aside and the order of the trial judge is restored. [836 C]      2 (i)  Section I  IA, can  he styled  as a check on the tendency of  the defendant  to protract  the  litigation  by frivolous defences more especially where the duty to pay the

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rent is unmistakably admitted. [830 F]      (ii) In a suit for eviction, Sec. 11A enables the court to give  a direction  to pay  rent which is claimed to be in arrears as  also to  compel, the  defendant who continues to remain in  possession during the pendency of the proceedings to perform  his obligation to deposit the rent regularly. It also enables  the court  to determine  the rate  of rent  at which the  deposit shall be made, where in a case there is a dispute as to the rate of rent. [830 G]      (iii) An  undeniable feature  of the  tenancies in this country is  that, the  tenancy  is  generally  oral  and  no written record  is usually  available to furnish evidence as to the  terms of  lease. Giving  a receipt for the rent paid has not  still become  a part  of the culture of a landlord. Therefore, where  eviction is  sought on  the ground of non- payment of  rent,  it  places  a  tenant  at  a  comparative disadvantage if  the landlord  chooses to  claim rent at the rate which  is beyond  the capacity of the tenant to pay. In such a  situation, the  tenant will  be  exposed  to  double jeopardy in  that on  a  prima  face  pleading  he  will  be directed to  deposit the  rent at  the rate  claimed by  the landlord, if  the court has no power to determine rate at an interim stage. Such power is conferred by Section 11A on the Court.  It  is  whole-some  provision  which  would  advance justice. [830 H; 83 1 A-C]      3. Where  the legislature  uses the  two words  may and shall   in two  different parts  of the same provision prima facie it  would appear  that the  Legislature manifested its intention to  make one part directory and another mandatory. But that  by itself  is not decisive. The power of the court still to  ascertain the real intention of the Legislature by carefully examining  the scope  of the  statute to  find out whether the  provision is directory or mandatory remains un- impaired even  where both  the words  are used  in the  same provision,                                               [833 H; 834 A]      In the  instant case,  if one ascertains the intendment of the  legislature, the purpose for which the provision was enacted, the beneficent nature of the statute-to protect the harassed tenant,  it does  not require long argument to hold that the  expression ’shill’  was used  not with  a view  to making the  provision mandatory  or imperative but it to was be directory.  Such a construction would advance the purpose for which  the Act  was enacted  namely  the  protection  of tenants. It  will also not render the court powerless in the face of  harsh facts where striking off the defence would be nothing short of miscarriage of justice. [833 D-E] 828      R.V Inhabitants  of Great  Bolton, (1828) 8B & 71 at 74 Govindlal Chaganlal Patel v. The Agricultural Produce Market Committee, Godhra and others, [1976]1 SCR 451, referred to.      4. Where  the court fixes a time to do thing, the court always retains  the power  to extend  the time for doing so. Sec. 148  of the Code of Civil procedure provides that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by the Code, the Court may, in its discretion, from time to time, enlarge such period, even though the  period originally  fixed  or  granted  may  have expired. The  principle this  section  must  govern  in  not whittling down  the discretion  conferred on  the court,  by Section 11A of the Act. [834 F-G]      Shyamcharan Sharma  v  Dharamdas,  [1980]  2  SCR  334, referred to.

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1365 of 1978      From the  Judgment and Order dated 11.8.77 of the Patna High Court in Civil Revision No. 585 of 1976.      B.P. Singh R. Kumar and R. Prakash for the Appellants.      Mrs. Gian Sudha Misra for the Respondent.      The Judgment of the Court was delivered by      DESAI,  J.   Where  a  plaintiff  in  a  suit  bitterly complains  that   the  defendant  would  be  getting  unfair advantage of his own lapse, if we were to interfere with the judgment rendered  by the  High Court,  we put  ourselves on caution whether such be the outcome of our setting aside the order under  appeal. Unwittingly, this Court should not be a party to  the conferment  of an  undeserved advantage  on  a party to  a proceeding  guilty of  a lapse though remediable and  even  unintentional.  Deeper  probing  into  the  facts reveals that  the boot  is on  the other  foot in  that  the respondent-plaintiff is wholly to be blamed for the delay.      The facts  first. The respondent-plaintiff field a suit for eviction  against the  appellant-defendent on  the  only ground that  the tenant committed default in payment of rent for the  period May,  1969 to  December, 1971. The defendant contested the suit inter- 829 alia contending  that he  was not in default. There followed an application  by the  respondent-landlord for  a direction under Sec.  11A of  the Bihar  Buildings  (Lease,  Rent  and Eviction) Control  Act, 1947  (’Act’ for short). Section 11A reads as under:           "11A. Deposit  of rent  by tenants  in  suits  for      ejectment- If  in a  suit for recovery of possession of      any building  the tenant  contests the suit, as regards      claim  for   ejectment  the   landlord  may   make   an      application at  any stage  of the suit for order on the      tenant to  deposit month  by month  rent at  a rate  at      which it was last paid and also the arrears of rent, if      any and  the Court,  after giving an opportunity to the      par- ties to be heard, may make an order for deposit of      rent at  such rate  as may be determined month by month      and the  arrears of  rent, if any and on failure of the      tenant to  deposit the  arrears of  rent within fifteen      days of  the date of the order or the rent at such rate      for  any  month  by  the  fifteenth  day  of  the  next      following month,  the Court  shall  order  the  defence      against ejectment to be struck out and the tenent to be      placed in  the same  position as if he had not defended      the claim to ejectment. The landlord may also apply for      permission  to  withdraw  the  deposited  rent  without      prejudice to  his right  to claim  decree for ejectment      and the  Court may  permit him  to do so. The Court may      further order  recovery of  cost of suit and such other      compensation as  may  be  determined  by  it  from  the      tenant."      The prayer  in the  application was that the defendant- tenant be  directed to  deposit the rent in arrears upto and inclusive of  June 1973 within a period of fifteen days from the date  of the order and a further direction be given that he should  continue to deposit the rent from month to month. The learned  Judge made  an order directing the appellant to deposit rent  for the period upon and inclusive of June 1973 at the  rate of Rs. 32 per month and there after to continue to deposit  the rent  from month to month at the rate of Rs. 12.20 per  month. The  tenant preferred  a revision petition

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which was  dismissed on  March 26,  1974. The such was fixed fore haring  on  January  28,  1975.  The  tenant  moved  an application for  adjournment which was rejected. Plaintiff’s witnesses were examined and the suit was decreed ex-parte on January 30,  1975. On  an application moved by the defendant praying for relief under 830 Order IX  Rule 13, Code of Civil Procedure the learned Judge set aside  the ex-parte  decree and  set down  the suit  for proceeding further  from the  stage where it was decreed ex- parte. On  January 5, 1976, the respondent-landlord moved an application  praying  that  as  there  was  irregularity  in depositing the  rent for  the month  of August  to  October, 1975, defence  of the  appellant  be  struck  off,  the  his failure to strictly comply with the order made under Section 1 IA.  After the  appellant filed his rejoinder, the learned Judge heard  the application  and rejected  the same  on the ground that  as the earlier order was made prior to the date on which the suit was decreed exparate, on the setting aside of the  exparte decree  and revival  of the  suit, the order giving directions for deposit of future rent does not per se revive and  therefore even  if there was some default on the part of  the tenant  in depositing  the rent  for the months from February  to April,  1979, his defence cannot be struck off. Promptly,  the  respondent-landlord  moved  a  revision petition before  the High Court being Civil Revision No. 585 of 1976.A  Division  Bench  of  the  High  Court  heard  and disposed of  the revision  petition on  August 11, 1977. The learned Judges  of the High Court made the rule absolute and set aside  the order  of the learned trial Judge refusing to strike off  the defence  of the  appellant and  directed the learned Judge to note that the defence of the appellant will be deemed  to have  been struck off due to non-compliance of the order dated April 26, 1973. Hence this appeal by special leave which is being heard after seven years.      Section 11A,  to some  extent, can be styled as a check on the  tendency of the defendent to protract the litigation by frivolous  defences more especially where the duty to pay the rent  is unmistakably  admitted. In a suit for eviction, Sec. 11A  enables the  court to give a direction to pay rent which is  claimed to  be in  arrears as  also to compell the defendent who  continues to  remain in possession during the pendency of  the proceedings  to perform  his obligation  to deposit the  rent regularly.  It also  enables the  court to deter mine  the rate  of rent  at which the deposit shall be made, wherein  a case  there is  a dispute as to the rate of rent. It  is an  undeniable feature of the tenancies in this country that  more or less excluding the metropolitan areas, the tenancy  is generally  oral and  no  written  record  is usually available  to furnish  evidence as  to the  terms of lease. Giving  a receipt  for the  rent paid  has not  still become a part of the culture of a landlord. Therefore where 831 eviction is  sought on the ground of non-payment of rent, it places   a tenant  at  a  comparative  disadvantage  if  the landlord chooses  to claim  rent at the rate which is beyond the capacity  of the tenant to pay. In such a situation, the tenant will be exposed to double jeopardy in that on a prima facie pleading  he will  be directed  to deposit the rent at the rate  claimed by the landlord, if the court has no power to determine rate of rent at an interim stage. Such power is conferred by  Sec. 11A  on the  court. The  court  can  also determine as  to from  what date the tenant appears to be in arrears so  that an  appropriate direction can be given that the rent  in  arrears  may  be  deposited  within  the  time

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stipulated by the court as also future rent may be deposited regularly in  the court.  It is a whole some provision which would advance justice.      Now where  power is conferred on the court to give such directions, a  sanction had  to be  created to guard against the failure  to comply  with the  court’s  directions.  This sanction is  to be  found in  the conferment of power on the court to  strike off the defence of the tenant if the tenant fails  to   comply  with  the  order  of  the  court  giving directions for  deposit. Such a sanction would again advance justice. So far there is no dispute.      The contention  of the  landlord which has found favour with the  High Court  is that  the moment the failure of the tenant to  comply with  the earlier  order is brought to the notice of  the court,  without anything more the defence has to be  struck off.  This view of the court is founded on the use of  the expression  ’shall’ in  that part  of section by which power  in conferred  on the  court to  strike off  the defence. The relevant part of the expression reads thus: F           ".... on  failure of  the tenant  to  deposit  the      arrears of  rent within fifteen days of the date of the      order or  the rent  at such  rate for  any month by the      fifteenth day  of next following month, the court shall      order the  defence against  ejectment to  be struck off      and the  tenant be placed in the same position as if he      had not defended the claim to ejectment." Interpreting this  expression ’shall’  as mandatory  in  the afore-mentioned clause,  the High  Court was  of the opinion that as  there was  default in  making the  deposit for  the month herein before mentioned 832 which would  show non-compliance  with the  order dated July 26, 1973  passed under  Sec. 11A  and therefore  ’the tenant will have  to bear  consequences thereto  ’ The  High  Court further observed  that ’once  a default is found, the courts are powerless;  the  statutory  consequences  are  bound  to follow.’      In the  back-drop of  the rival  contentions, the  neat question that arises is: whether the use of the word ’shall’ in  the   expression  herein   before  extracted  makes  the provision imperative or mandatory or the court still retains the discretion to relieve against the default ?      Ordinarily the  use of  the word  ’shall’  prima  facie indicates that  the provision  is imperative  in  character. However, by  a catena  of decisions,  it is well-established that the court while considering whether the mere use of the word ’shall’  would make  the provision imperative, it would ascertain  the   intenedment  of  the  legislature  and  the consequences flowing  from its  own construction of the word ’shall’. If  the use of the word ’shall’ makes the provision imperative, the inevitable consequence that flows from it is that the  court would  be powerless to grant any relief even where the  justice of  the case  so  demands.  If  the  word ’shall’ is treated as mandatory the net effect would be that even where the default in complying with the direction given by the  court is  technical, fortuitous,  unintended  or  on account  of   circumstances  beyond   the  control   of  the defaulter, yet  the court  would not  be able  to grant  any relief or  assistance to  such a  person. Once  a default is found to be of a very technical nature in complying with the earlier order,  the court must have power to relieve against a drastic  consequence all  the more  so if  it is satisfied that there  was a  formal or  technical default in complying with its order. To illustrate, if the tenant while he has on the way to the court on the 15th day to deposit the rent for

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the just preceeding month as directed by an order under Sec. 11A, met  with an  accident on  the road and could not reach the court  before the  court hours  were over,  should he be penalised by his defence being struck off. Even if the court is satisfied that he was on the way to the court to make the necessary deposit,  that he  had the  requisite amount  with him, and  that he  started in time to reach the court within the prescribed  court hours  and yet by circumstances beyond his control,  he met  with an  accident would  the court  be powerless to  grant  him  relief?  This  illustration  would suffice to 833 the intendment  of the  legislature that  it never  used the word ’shall’   to  make it  so imperative  as to  render the court powerless.      The statute  in which  the expression  is used  is  The Bihar Buildings  (Lease, Rent  and  Eviction)  Control  Act, 1947. It  is a  statute enacted  with a  view to providing a fetter on  the right  of a  landlord to  evict tenant at his whim or  fancy. The  long title of the Act shows that it was enacted to regulate the letting of buildings 13 and the rent for such  buildings and to prevent unreason able eviction of tenants therefrom  in the  Province of  Bihar.A provision in such a  statute primarily  enacted  for  the  protection  of tenants against  unreasonable eviction  that  the  court  is required to find out whether the word ’shall’ was used as to make the provision mandatory or imperative. Obviously if one ascertains the  intendment of  the legislature,  the purpose for which  the provision was enacted, the beneficient nature of the  statute and to protect the harassed tenant obviously it  does   not  require  long  argument  to  hold  that  the expression ’shall’  was used  not with  a view to making the provision  mandatory   or  imperative   but  it  was  to  be directory. Such a construction would advance the purpose for which the  Act was enacted namely the protection of tenants. It will  also not  render the court powerless in the face of harsh facts  where striking off the defence would be nothing short of miscarriage of justice.      Mrs.  Gyan   Sudha  Misra,   learned  counsel   however contended that  where the  expression ’may’ and ’shall’ both are used in the same provision the legislative intendment is unmistakable that  the provision  where the  word ’shall’ is used must  be held  to be mandatory because the previous use of the  expression ’may’  shows  that  the  legislature  was conscious, which part of the provision is to be directly and which  other  part  to  be  mandatory.  She  relied  upon  a statement in  Maxwell on  the Interpretation of Satutes 12th Edn. Page  282 where  in  it  is  stated  relying  upon  the decision is R. v. Inhabitants of Great Bolton(1) that "where the Legislature  in the  same sentence uses different words, we must  presume that  they were  used in  order to  express different ideas."  Obviously where  the legislature uses two words ’may’  and ’shall’  in two different parts of the same provision prima  facie it  would appear that the legislature manifested its  intention to  make one  part  directory  and another (1) [1828] 8 B & C  71 at 74 834 mandatory. But  that by itself is not decisive. The power of the court  still to  ascertain the  real  intention  of  the Legislature by care fully examining the scope of the statute to find  out whether the provision is directory or mandatory remains unimpaired even where both the words are used in the same  provision.   In  Govindlal  Chagganlal  Patel  v.  The Agricultural Produce  Market Committee  Godhra and others(1)

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Chandrachud,  J.   speaking  for   the  Court  approved  the following passage  in Crawford  on ’Statutory  Construction’ (Ed. 1940 Art. 261, p. 516):           "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  phrasacology of the provision, but also while      considering its nature, its design and the consequences      which would  follow from  construing it  the one way or      the other."      Applying this well-recognised canon of construction the conclusion is in escapable that the word ’shall’ used in the provision is directory and not mandatory and must be read as ’may’. .      This  construction   also  commends   to  us   for  the additional reason  that where the court fixes a time to do a thing, the court always retains the power to extend the time for doing  so. Sec.  148 of  the  Code  of  Civil  Procedure provides that  where any  period is  filed or granted by the court for  the doing of any act prescribed or allowed by the Code, the  Court may,  in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted  may have  expired. The principle of this section must govern  in not  whittling down the discretion conferred on the court.      The view  which we  are taking  is in  accord with  the construction put  by this court on a provision imparimateria in a  similar statute. In Shyamcharan Sharma v. Dharamdas(2) a question that arose (1) [1976] 1 S.C.R. 451. (2) [1980] 2 S.C.R. 334. 835 before this  Court was  whether the  construction put by the High   Court on  Sec. 13  (1) read  with Sec.  13 (6) of the Madhya Pradesh  Accommodation Control Act, 1961 accords with the intendment  of the  Legislature. The  relevant provision provides that on an application, a tenant can be directed by the Court to pay to the landlord an amount calculated at the rate of  the rent  at which  it was  paid for the period for which a  tenant may have made a default including the period subsequent thereto  upto the  end of  the month  previous to that in  which the  deposit or  payment is  made  and  shall thereafter continue  to deposit or pay month by month by the of   tenth of  each succeeding  month, the sum equivalent to the rent.  It was contended that the provision i i mandatory so that  the court has to power to extend the time initially liked by  it for  making the deposit.A submission before the court was that the expression used in sub-sec. (1) discloses the legislative intent and the use of the word ’may’ in sub- sec. (6)  would not make the provision directory. The Court, speaking through  O. Chinnappa  Reddy, J. after ascertaining the intendment  of the  Legislature held  that the court has the jurisdiction  to extend  time once  fixed for deposit or payment of  monthly rent falling due after the filing of the suit.      Failure to  comply with an earlier direction should not necessarily visit  the tenant  with the  consequence of  his defence being  struck off  because  there  might  be  myriad situations in  which default  may be  committed.  The  Court should adopt  such a  construction as  would not  render the court powerless  in a  situation in  which ends  of  justice demand relief      being granted. The High Court has adopted such a construction which would defeat the beneficent nature

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of provision. The decision of the High Court will have to be set l,  aside because  it proceeds  on the  basis that  once there is default, the tenant must suffer the consequences of it.      The learned trial Judge had held that once a suit ended in exparte decree the earlier direction for making necessary deposit given under Sec. it would remain ineffective even if the exparte is, decree is set aside and would not revive was rightly disapproved  by the  High Court.  To that extent the view of the learned trial Judge was unsustainable.      The learned  trial Judge did grant relief to the tenant by refusing  to strike  off the  defence, of  course, on  an erroneous view 836 of law  that the  direction did not revive after the setting aside of the ex-parte decree. And the High Court reversed it on  another  crroneous  view  of  law  that  the  court  was powerless to  grant any relief once a default is established ? The question then is what relief we should grant ?      The tenant  has deposited  all the  arrears. There  was some irregularity  in making  the deposit  but it was not of such a nature as to visit the tenant with the consequence of striking off his defence. Therefore the Judgment of the High Court directing  that the defence be deemed to be struck off is set  aside and  the order  of the  learned trial Judge is restored for the reasons herein stated.      This appeal  is allowed  accordingly and  the matter is remitted to the trial court to proceed further with the suit from the  stage where  the defence  of the present appellant was struck  off. The  defence will be treated as part of the proceedings and suit shall be proceeded with accordingly. As the matter  is delayed  for long,  we direct  that the  suit shall be  accorded priority  by the trial court and shall be disposed of  within a  period of six months from the date of this judgment.      Mrs. Misra  on behalf  of the respondent submitted that the respondent  has filed  a second suit for eviction on the ground of  personal requirement. If that is pending the same must be  heard alongwith  the suit  from which  the  present appeal arises.      We leave  the parties  to bear  their respective  costs both in  the High  Court as  well as in this Court. Costs in the trial court will abide the outcome of the suit. N.V.K.                                       Appeal Allowed; 837