·GANESH PRASAD SAH KESARI & ANR. v. LAKSHMI NARAYAN GUPTA

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 evic- tion against the appellant-defendent on the only ground that the tenant committed default in payment of rent for the period May, II 1969 to December, 1971. The defendant contested the suit inter-

0.P.S. KESARI v. L.N. GUPTA (Desai, J.) 829

alia contending that. he wai not in defa·1lt. Th~re followed an A, applicaiion by the respondent-landlord for a direction under Sec. llA of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 ('Act' for short). Section 1 lA reads as ·under:

"11A. Deposit of rent by tem.nts.in suits for ejectment- B If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment the landiord 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 Conrt, after giving an opportunity to the par- c· 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 tenent to depo- · sit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fif-. tcenth 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 com- pensation as may be determined by it from the tenant."

The prayer in the application was that the defendant-tenant be ·directed to deposi.t the rent in arrears upto and inclusive of June F 1973 within a period of fifteen days from the date of the order and a furthH 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 upto 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 · G rate of Rs.12.20 per month. The tcnent preferred a revision peti- tion which was dismissed on March 26, 1974. The such was• fixed fore baring 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 uncler H

gjo SUPRBMB COURT RBPORTS [1985) 3 S.C.R. A Order IX Rule 13, Code of Civil Procefare, the le1rned Judge set aside the ex-pa rte decree and set down the suit for proceeding further from the st;ge where it was docreod ex·pHte. 0,1 Janu1ry 5, 1976, the respondent-landlord moved an application praying that as there was irregularity in depositing the rent for the mJnths of August to October, 1975, defence of the appellant be struck off, for his failure B to strictly comply with the order made under Section IIA. After the appellant filed his rejoinder, the learned Jugde beard the applica- tion 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, c 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 res- pondent-land.lord moved a revision petition before the High Court being Civil Revision No. 585 of 1976. A Division Bench of the D High Court heard and disposed of the revision petition on August 11, 1977. The learned Judges of the High Court mad,e the rule absolute and set aside the order of the learned trial Judge refusing to strike off the defence of the appellant and directed t.he 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 dJted E April 26, 1973. Hence this appeal by special leave which is being heard after seven years.

Section !IA, to some extent, can be styled as a checK on the tendency of the defendent to protract the litigation by frivo lolls F defences more especially where the duty to pay the rent is unmistak- ably admitted. In a suit for eviction, Sec. I IA 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- G mine the rate of rent at which the deposit shall be m1de, where· in a case there is a dispute as to the rate of rent. It is an undeni-: able feature of the tenancies in this country that more or less exclud- ing the metropolitan areas, the tenency is generally oral and no written record is usually available to furnish evidence is to the terms of lease. Giving a receipt for the rent paid has not still become a part of the culture of a la11dlord, Therefore, where

G.P.S. J(ESARI v. L.N. GUPTA (Desai, J.) 831

ev.iction is sought on the ground of non-payment of rent, it places A .a tenant at a comparative disadvantage if the la.ndlord 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 dire.cted 1to 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 B power is conferred by Sec. 11 A on the court. The court can also determine as to froth 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 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. c

Now where power is conferred on the court to give such directions, a sanction had to be created to guard against the fail- ure 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 directio,ns 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 defe.nce against ejectment to be struck off and the tenant be placed in the G same position as if he had not defended the claim to ~jectment."

Interpreting this expression 'shall' as mandatory in the afore-men- tioned clause, the High Court was of the opinion t~at as there was \iefault in making the deposit for the month herein b\'fore me.ntioned H

p. 832 Copy page pinpoint

A which would show non-compliance with the order dated July 26, 1973 passed under Sec. I IA and therefore 'the tenant will have to bear consequences thereto.' The High Court further observed that 'once a default is found, the courts are ponerless ; the statutory conse- quences are bound to follow.' 8 / 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 manda- tory or the court still retains the discretion to relieve against the c default?

Ordinarily the use of the word 'shall' primafacie 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 0 imperative, it would ascertain the intenedment of the legi~lature and the consequences flowing from its own construction of the word 'shall'. If the nse of the word 'shall' makes the provision impera- tive, 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 a.s mandatory E the net effect would be that evenwh e" the default in complying with the direction given by the court is technical, fortuitbus, unin- tended 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 F very technical nature in complying with the earliar 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.J5th day to deposit the rent for the just preceeding month as directed by an order under Sec. llA, met with an accident on the road and could not reach the court be- G for the court hours were over, should he be penalished by his defence being struck off. Even if the court is satisfied that be was on the way to the court to make the necessary deposit, that he had the requi- site amount with him, and that he started in time to reach the court within the prescribed court hours and yet by circumstances H beyond his control, he met with an accident would the court be powerless to grant him relief? This illustration would suffice to

<l.P.S 11'.ES~TU v. t.N. GUPTA (Desai, i.) 833

the intendment of the legislature that it never used the word 'shall' A to make it so imperative as to render the court powerless.

The statute in which the expression is used is The Bihar Buil- dings (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 ll 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 unrea- sonable eviction that the court is required to find. out whether the word 'shall' was used as to make the provision mandatory. or impe- rative. Obviously if one ascertains the intendment of the legis- c lature, 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 expres- sion 'shall' was used not with a view to making the provision mandatory or imperative but it was to be directory. Such a cons- truction would advance the purpose for which the Act was enacted D 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. E 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 manda- tory 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 Statutes, 12th Edn, Page 282 where in it is stated relying upon the decision in R. v. Inhabitants of Great Bolton(1) that "where the Legislature in the same sentence uses different words, we must presume that thei 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

(I) [1828] 8 B & C 11 at 74 H

834 SUPREMll COURT RBPORTS (1985] 3 s.c.li.. A 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 Patelv. The Agricultural Produce Market Committee, B Godhra and others('), Chandrachud, CJ. speaking for the Court approved the following passage in Crawford on 'Statutory Construc- tion' (Ed. 1940 Art. 261, p. 516) :

"The question as to whether a statute is mandatory c or directory depends upon the intent of the lagislature 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 phrasaco- logy of the provision, but also while considering its nature, its design and the consquences which would follow D from construing it the one way or the other."

Applying this well-recognised canon of construction the con- clusion is inescapable that the word 'shall' used in the provision is directory and not mandatory and must be read as 'may'. E 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 or'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 F 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 gov'erri in not whittling down the discretion conferred on the court. G The view which we are taking is in accord with the construc- tion put by this court on a provision imp1rimateria in a similar sta' tute. In Shyamcharan Sharma v. Dharamdos(2) a question that arose

(I) [ 1976] I S.C.R. 451. H (2) (1980] 2 S.C.R. 334.

o.i>.S'KESARi v. L.N. GUPTA (Desai, i.) 835 before this Court wa. wheth~r the construction.put by the High A C'ourt on Sec. 13 (!.) read with Sec. 13 (6) of the Madhya Pradesh Accommodation Control Act, 1961 accords with the intendment of tlie Legislature. The relevant provision provides that on an appli- cation, a tenant can be directed by the Court to pay to the land- lord an amount calculated at the rate of the rent at which it was paid for the period for w~1 ich a tenant may have made a default including the period subsequent thereto upto the end of the mon~h previous to that in which the deposit or payment is m1d" and shall thereafter continue to deposit or pay month by month by the fifteenth of each succeeding month, the sum equivJlent to the rent. ' It was contended that the provision il mandatory so that the court has no power to extend the time initially fixed by it for making the { deposit. A submission before the court was tllat the expression used in sub-sec. (!)discloses the legislative intent and the use of the word 'may' in sub-sec. (6) would not make the provision direc- tory. The Court, speaking through 0. Chinnappa R~ddy, 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 neces- sarily visit the tenant with the consequence of his defence being struck off because there might be myriad situations in which defaulf may be committed. The Court should adopt such a construe' tion as would not render the court powerleS3 in a situation in which ends of justice de:mnd relief b'ing granted. The High Court has adopted•such a construction which would defeai the beneficent na- ture of provision. The decision of the High Court will have to be set I• aside because it proceeds on the basis tliat 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. 11 A would remain ineffective even if the exparte 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 SUPREME COURTS REPOR ts [1985) 3 S.C.R.

of law that the direction did not revive after the setting aside of A the ex-parte decree. And the High Court revers~d it on another erroneous view of law that the court was powerless to grant any relief once a default is established ? The question then is what re- lief we should grant ?

The tenant has deposited all the arrears. There was some B ) irregulerity in making the deposit but it was not of such a nature as to visit the tenant with the consquence of striking off his de- fence. 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. c .>-· 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 ihe matter is delayed for long, we direct that the suit shall be accorded priority hy 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 saine 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 ; G