Full Judgment Text
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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