JUDGMENT
Shah, J.
1. A Division Bench of this Court in Civil Revision Petition No. 131 of 1980 and Civil Revision No. 1 of 1981, on a reference made by a single Judge of this Court in Civil Revision Petition No. 131 of 1980 ; based on the pronouncement of the Hon’ble Supreme Court in (Ganesh Prasad Sah Kesari v. Lakshmi Narayan Gupta) reported in AIR 1985 SC 964 interpreting the word “shall” in the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 by its order dated June 5, 1986 formulated the following question of law : —
“Whether the word “shall” occurring in Section 12(4), Jammu and Kashmir Houses and Shops Rent Control Act, 1966 is directory or mandatory and in default of payment of monthly rent by the tenant, the striking out of the defence is inevitable.”
And referred the matter for consideration by a larger Bench to have an authoritative pronouncement on the point, hence the case is laid before the Full Bench.
2. The necessity for the reference arose
because of the judgment of their Lordships
of the Supreme Court in the case of Ganesh
Prasad Sah Kesari (AIR 1985 SC 964) (supra)
interpreting the word “shall” as directory as
against the consistent view taken by this
Court in different authorities interpreting the
word “shall” occurring in Section 12(4), Jammu
and Kashmir Houses and Shops Rent Control
Act, 1966 (for short hereinafter called the
Act) as mandatory. The Apex Court while
dealing with the above noted case interpreted
the words with reference to Section 11-A, Bihar
Buildings (Lease, Rent and Eviction) Control
Act, 1947 (3 of l947). It is to be seen whether
the provisions of the Bihar Act are in pari
materia with the provisions of the Jammu
and Kashmir Act, to find out the same it is
necessary to reproduce the two provisions.
Section 11-A of the Bihar Act runs as
follows :–
“11-A. 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 parties 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 rale 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 tenant to be placed in the same position as if he had not defended the claim for 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”.
Sub-section (4) of Section 12, J. & K. Act reads as under : —
“(4) If the tenant contests the suit, as regards claim for ejectment, the plaintiff-landlord may make an application at any stage of the suit for order on the tenant-defendant 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 parties to be heard, may make an order for deposit of rent at such rate, 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 tenant 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.”
3. A comparative study of the two provisions will show that the words necessary to interpret the word “shall” and its import in the two Acts are used in the similar words or
not. The Bihar Act uses the following words : —
“The Court, after giving an opportunity to the parties 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 tenant to be placed in the same position as if he had not defended the claim to ejectment.”
In the Jammu and Kashmir Act under Section 12(4), the following language is used : —
“The Court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent at such rate, 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 tenant to be placed in the same position as if he had not defended the claim to ejectment.
It is, therefore, noticed that the phraseography used in the two provisions giving right to the Court to strike out the defence of the tenant is the same.
4. Learned counsel for the petitioners in the above noted background contended that the above dictum applies with full force in the instant case to answer the reference.
5. In Civil Revision No. 1 of 1970, (Sudesh Kumar v. Kuldip Raj) reported in 1971 J & K LR 51 (55), S.M.F. Ali, Chief Justice, as he then was, while interpreting the provisions of Section 12(4) of the Act held :-
“Under the J. & K. Houses and Shops Rent Control Act the Court has no discretion in the matter and has to strike out the defence if the defendant fails to deposit rent within the time allowed by the Court. The consequence which flows from the non-compliance of the order is a legal consequence over which the Court has no control.”
6. In a Full Bench decision of this Court,
on which the reliance is placed by the learned counsel for the respondents/landlords reported in 1980 Kash LJ 25 : (AIR 1980 J & K 25), (Gwasha Lal v. Harji La! and Mohd. Shaffi v. Ghulam Mohi-ud-Din) two questions were referred to the Full Bench, which arc enumerated as follows : —
“(1) Is Sub-section (4) of Section 12 of the Act applicable to suits wherein ejectment of the defendant has been based also on the grounds other than the ground of non-payment of rent ?
(2) What is the scope and ambit of enquiry which the Court is required to make before passing an order under Sub-section (4) of Section 12 of
the Act ?”
While answering the two questions referred to above, the Full Bench in Gwasha Lal’s case (supra) was not called upon to answer the question posed specifically in the instant case as to the ambit and scope of the word “shall” used in Sub-section (4) of Section 12 of the Act.
In the case of Babu Ram v. Om Parkash reported in 1982 Kash LJ 456 : (AIR 1983 NOC 87), I. K. Kotwal, J., as he then was, discussed the ambit and scope of Sub-section (4) of Section 12 of the Act at length and interpreted the word “shall” occurring in sub-section as mandatory in Para 5 of the judgment, the learned single Judge held : —
“Sub-section (4), if given its plain grammatical meaning, would admit of no equivocation. Keeping in view its plain and distinct language, it is not possible to infer that the legislature intended to give any discretion to the Court in striking out the tenant’s defence, once he is shown to have committed its breach in depositing the rent. I have no doubt in my mind that its stringent language may more often than not cause extreme hardship to the tenant, but this is something that is to be considered by the legislature and not by the Court. With a view to avoiding any such hardship or injustice, 1 can only suggest that the legislature would be well advised in amending Sub-section (4) by substituting the word “may” for the word “shall” oecuring in it, as that would give a discretion to the Court in striking out the sonant’s defence, which presently there is none.”
7. Yet there are other authorities to the same effect holding the said provision as mandatory reported in 1984 Kash LJ 46 : (AIR 1984 J & K 56), (Shri Ram Nath v. State of J. & K,), wherein the constitutionality of Sub-section (4) of Section 12 of the Act was challenged in a writ petition, where his Lordship, Chief Justice V. Khalid, as he then was, of this Court dismissed the petition holding :-
“The writ petition is devoid of any merits. Section 2(4) is perfectly valid and the word “shall” occurring in that section has to be given its plain meaning.”
The said view was approved by the Division Bench of this Court in Letters Patent Appeal
No. 8 of 1984 reported in 1984 Kash LJ 379 : (AIR 1984 J & K 56) against the said judgment by dismissing the L.P.A. it was observed ; —
“The consistent view of this Court has been that Section 12(4) is valid and word “shall” occurring in said sub-section is mandatory. This Court, therefore, cannot construct meaning of word “shall” as directory in said sub-section.”
However, it was held in that case that the question of striking off the defence largely depends upon the fact of each case. Following the above dictum K. K. Gupta, J. in Shallo Ram v. Kuldip Raj reported in 1985 Kash LJ 124 : (AIR 1986 J & K 12) held the same view.
8. As against the above noted J. & K. authorities though on the Bihar Act, we have a different view of the Apex Court in Ganesh Prasad’s case (AIR 1985 SC 964) (supra), where their Lordships held in Para 7 as follows : —
“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 intendment of the legislature and she consequences flowing from sis 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 ease 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 T.o grant any relief or assistance to such a person. Onee 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,”
Ultimately holding, giving an example where a tenant is prevented depositing the rent on the 15th day as a result of an accident and is in a position to satisfy the Court that he was prevented by sufficient cause despite doing all the best on his part to fulfil the mandate of law by making the necessary deposits within time failed to do so beyond his control it is held that the intendment of the legislature in using the word “shall” was never to make it so imperative so as to render the Court powerless, it is further held in Para 8 :-
“Obviously if one ascertains the intendment of the legislature, the purpose for which the provision was enacted the beneficent nature of the statute and to protect the harassed tenant obviously it does not require long argument to hold that the expression ”shall’1 was used not with a view to making the provisions 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 Couri. powerless in the face of harsh facts where striking off the defence would be nothing short of miscarriage of justice.”
On the principle of interpretation of statutes, their Lordships of the Supreme Court in AIR 1986 SC 1499, (Girdhari Lal and Sons v. Balbir Nath Mathur) held : —
“The primary and foremost task of a Court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed.
Having ascertained the intention, the Court must then strive to so interpret the statute as to promote and advance the object and purpose of the enactment. For this purpose, where necessary the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mule submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the Court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written word if necessary.”
9. Based on the abovesaid discussion, in view of the decision of their Lordships of the Supreme Court testing the provisions of the Bihar Act with our Act the provisions being pari materia, there is no scope left to hold a different view than what has been held by the Apex Court, that in the given set of circumstances when the Court is satisfied that the tenant acting diligently in all bona fides tried to comply with the mandate of law in depositing the rent as directed by the Court within the specified time was prevented by sufficient cause beyond his control, the Court is not powerless to advance the cause of justice condone the delay in depositing the rent and to that extent the word “shall” occurring in Sub-section (4) of Section 12 of the Act is held as directory. Applying the well-recognised principles of interpretation, the reference is, therefore, answered holding that in a given set of circumstances the word “shall” occurring in Sub-section (4) of Section 1.2 of the Act is directory and not mandatory, when so interpreted the striking out of the defence of the tenant is discretionary with the Court with the safeguards noted above.
10. In consequence of the answer to the reference, the cases be now placed before the learned single Judge for their disposal on merits.
Anand, C.J.
11. I have gone through the judgment prepared by my learned brother Shah, J. and I agree with him that the word “shall” as used in Section 12(4) of the
Act renders the provisions of the said section directory and not mandatory. The Court has, therefore, the discretion to condone the default of the tenant while enforcing its earlier order on being satisfied about the existence of the circumstances for the exercise of that discretion. The discretion, however, has to be exercised by the Court on the basis of the illustrative guidelines given by the apex Court in Ganesh Prasad’s case (AIR 1985 SC 964).
12. The contrary view held by this Court in Sudesh Kumar v. Kuldip Kumar, 1971 J & K LR 51, Babu Ram v. Om Prakash, 1982 Kash LJ 456 : (AIR 1983 NOC 87), Ram Nath v. State, 1984 Kash LJ 379 : (AIR 1984 J & K 56} and Shallo Ram v. Kuldip, 1985 Kesh LJ 124 : (AIR 1986 J & K 12) that the use of word “shall” in Sub-section (4) of Section 12 admits of no equivocation and the default of the tenant in. carrying out the directions of the Court would, without exception, visit him with the consequences of striking out the defence, as such, is no longer good law.
Bhat, J.
13. I have had the advantage of going through the detailed judgment prepared by my brother Shah, J. I fully agree with the conclusion drawn by him. However, I would like to supplement that rlucid judgment prepared by him with a few words of my own.
14. Section 11-A, Bihar Buildings (Lease, Rent and Eviction) Control Act of 1947 is in pari materia with Section 12(4) of the J. & K. Houses and Shops Rent Control Act of 1966. In the judgment prepared by Shah, J. provisions appearing in the two Acts of Jammu and Kashmir and that of Bihar are quoted. The provision empowers the Court to order defence against the ejectment to be struck out and tenant be placed in the same position as if he had not defended the claim for ejectment, if he does not comply with the order of the Court as regards deposit of rent month by month and arrears within fifteen days of the date of the order. The view taken by this Court on the basis of phraseology of Section 12(4), Rent Control Act, was that the word “shall” occurring in Section 12(4) is mandatory and the Court has no power or competence to
relax its rigour. The authorities which had taken this view are held to be no longer a good law by Shah, J. as they would be deemed to be impliedly overruled by the Supreme. Court in Ganesh Prasad Sah Kesari’s case (AIR 1985 SC 964).
15. The Jammu and Kashmir Houses and Shops Rent Control Act, 1966 was primarily framed to protect the tenants from being evicted in an unreasonable and capricious manner. Landlord’s rights to evict the tenant at his whim and caprice was intended to be fettered. Therefore, the statute enabling the Court to strike out defence of a tenant for noncompliance with the directions in respect of deposit of rent is to be tested in the light of the intendment of the Legislature and not upon the wording of the Statute which reflects the intention.
16. If the expression ‘shall’ occurring in Sub-section (4) of Section 12 of the Act is to be held mandatory, it would lead to disastrous consequences for a tenant who may have been prevented by sufficient cause to comply with the orders of the Court within the time fixed by the statute. This would also lead to absurdity inasmuch as the well intentioned tenant may also suffer the penal consequences of being placed in a position as if he had not defended the suit even if he is prevented by sufficient cause to deposit the rent as directed by the Court. Therefore the Supreme Court seems to have taken a pragmatic view to advance the cause of justice in Ganesh Prasad Sah Kesari’s case (AIR 1985 SC 964).
17. The scheme of the J. & K. Houses and Shops Rent Control Act would make it manifestly clear that the Act was drafted essentially to protect the unreasonable, capricious and whimsical eviction of the tenants by the landlords. At the same time landlords were permitted to evict the tenants on those grounds only which are expressly specified in the statute. If the word ‘shall’ occurring in Section 12(4) of the Act is taken to be mandatory, it may render Section 148, Civil P.C. also nugatory.
18. Under Section 148, C.P.C. the Court always
retains the power to extend the time for doing a thing which was required to be done within a fixed period. In its discretion Court may extend time from time to time though the period originally fixed or granted for doing a thing may have expired. The principles of this section are as much applicable to eviction suits as these are applicable to any other suit. The only condition is that the lis must be pending before the Court which is approached for extension of time in doing a thing which was required to be done by the Court within the specified time.
19. Notwithstanding the facts that the word ‘shall’ is used in Section 12(4), the discretion of the Court in enlarging the time for deposit of rent beyond time fixed cannot be whittled down if sufficient cause is shown by a tenant for not having been able to deposit the rent within the time fixed. The view taken by this Court so far had the effect of making the Court functus officio in respect of enlargement of time in favour of a tenant in the matter of deposit of rent once it had made a direction under Section 12(4), Houses and Shops Rent Control Act, pendency of lis before it notwithstanding. This view seems to be based on very narrow interpretation and cannot be held to be a good law now in view of the authoritative pronouncement of the Supreme Court in Ganesh Prasad Keshari’s case.
20. The word ‘shall’ occurring in Section 12(4) being directory is not intended to be defeated by a tenant at his sweet will. The tenant can surmount the rigour of expression ‘shall’ only if he makes out a case of sufficient cause which prevented him from depositing the rent within the time fixed by the Court. In that case the Court has discretion to enlarge the time in his favour and the Court will not strike out the defence of the erring tenant. The other question which needs to be considered in this case is as to whether the Court will be empowered in all cases to remove the rigour of provisions of Section 12(4), Houses and Shops Rent Control Act in so far as it prescribes penalty for noncompliance with its order in the matter of deposit of rent. If the tenant deliberately fails to comply with the orders of the Court and is not able to
show sufficient cause for non-deposit of rent within the time fixed, the Court will be empowered to strike out the defence of such tenant and place him in the same position as. if he had not defenced the claim of eviction. By holding that the word ‘shall’ is to be, construed as directory and not mandatory, it only recognizes the powers of the Court to enlarge the time on sufficient cause and allow the Court to exercise discretion after assuming satisfaction that there was sufficient cause which had prevented the tenant from depositing the rent within the time fixed by the Court or by the Statute. A bona fide tenant who is not able to comply with the directions of the Court in the matter of deposit of rent for reasons beyond his control is not intended to be punished and in his case Court has the discretion to extend the time for deposit of rent and save him from facing the penal consequences for non-deposit of rent. Same is not true in so far as a tenant who has intentionally and deliberately, without any sufficient cause failed to deposit the rent within the time fixed by the Statute and the Court. In case of such a tenant Court may refuse to exercise the discretion for extension of time to comply with the order regarding deposit of the rent. Court certainly has the power to examine each case on its merits with a view to find out as to whether a tenant was prevented by sufficient cause from depositing the rent within the time fixed. After passing the order of deposit of rent under Section 12(4) the Court does not become functus officio. It has the power to extend the time provided sufficient cause by a tenant is shown for non-deposit of rent within the time fixed. So each case wilt depend on its own facts and circumstances.
21. By holding that the expression ‘shall’ under Section 12(4), Houses and Shops Rent Control Act is directory and not mandatory, it is not to be construed that the Court is bound to extend the time in favour of all kinds of tenants in the matter of deposit of rent, without assuming satisfaction about the cause which prevented them from depositing the rent within the time fixed. Tenant has to satisfy that he was prevented from depositing the rent for the reasons beyond his control
and in that case Court may remove the rigour of penal consequences in favour of the tenant Otherwise it is competent for the Court to impose penalty on the tenant who has wantonly, intentionally or deliberately failed to comply with the order of the Court. The directory orders passed by the Court are binding on the parties who are before the Court. Without sufficient cause being shown directory orders cannot be violated by a tenant. What is the sufficient cause that may be advanced by a lenani for non-deposii of the rent depends on the facts and
circumstances of each and every case. The Court while extending the time for deposit of rent beyond the period prescribed by the Statute is to be guided by well-recognized principles which empowers the Court to use discretion in judicial proceedings.
22. I have tried io make the judgment prepared by my brother Shah. J. more comprehensive by adding a lew words of my own.