Ganesh Prasad Sah Kesari & ANR Vs.
Lakshmi Narayan Gupta [1985] INSC 94 (18 April 1985)
DESAI, D.A. 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 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 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.
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 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 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 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) 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 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;
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