{"id":147696,"date":"1985-04-18T00:00:00","date_gmt":"1985-04-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ganesh-prasad-sah-kesari-anr-vs-lakshmi-narayan-gupta-on-18-april-1985"},"modified":"2017-02-19T07:57:34","modified_gmt":"2017-02-19T02:27:34","slug":"ganesh-prasad-sah-kesari-anr-vs-lakshmi-narayan-gupta-on-18-april-1985","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ganesh-prasad-sah-kesari-anr-vs-lakshmi-narayan-gupta-on-18-april-1985","title":{"rendered":"Ganesh Prasad Sah Kesari & Anr vs Lakshmi Narayan Gupta on 18 April, 1985"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ganesh Prasad Sah Kesari & Anr vs Lakshmi Narayan Gupta on 18 April, 1985<\/div>\n
Equivalent citations: 1985 AIR 964, \t\t 1985 SCR (3) 825<\/div>\n
Author: D Desai<\/div>\n
Bench: Desai, D.A.<\/div>\n
           PETITIONER:\nGANESH PRASAD SAH KESARI & ANR.\n\n\tVs.\n\nRESPONDENT:\nLAKSHMI NARAYAN GUPTA\n\nDATE OF JUDGMENT18\/04\/1985\n\nBENCH:\nDESAI, D.A.\nBENCH:\nDESAI, D.A.\nMISRA RANGNATH\n\nCITATION:\n 1985 AIR  964\t\t  1985 SCR  (3) 825\n 1985 SCC  (3)\t53\t  1985 SCALE  (1)806\n CITATOR INFO :\n R\t    1987 SC1010\t (14)\n APL\t    1989 SC 291\t (5)\n R\t    1989 SC2073\t (22)\n R\t    1989 SC2206\t (21)\n\n\nACT:\n     The Bihar\tBuildings (Lease, Rent and Eviction) Control\nAct 1947, Section 11A\n     Suit for  eviction of tenant  for default in payment of\nrent-Failure of\t  tenant  to comply  with court's  order  to\ndeposit rent-Striking  off defence  against eviction-Whether\nlegal.\n     Interpretation of Statutes:\n     State-Words 'may' and 'shall used fn different parts of\na provision-Whether  mandatory or directory-Ascertainment of\nby the Court.\n     Words & Phrases:\n     'Shall order  the defence\tagainst ejectment  be struck\noff-Meaning of-Bihar  Building (Lease,\tRent  and  Eviction)\nControl Act 1947, Section 11A.\n\n\n\nHEADNOTE:\n     The respondent-plaintiff  filed  a\t suit  for  eviction\nagainst the  appellant defendant  on  the  ground  that\t the\ntenant committed  default in  payment of rent. The defendant\ncontested the suit contending that he was not in default. An\napplication was\t filed\tby  the\t respondent-landlord  for  a\ndirection under Sec. 11A of the (Bihar Buildings Lease, Rent\nand Eviction)  Control Act,  1947 to the defendant-tenant to\ndeposit the  rent in  arrears; and  a further  direction  to\ndeposit the future rent from month to month. The trial judge\nordered the  appellant to deposit the rent in arrears at the\nrate of\t Rs. 32\t per month  and thereafter  to\tcontinue  to\ndeposit the  rent at  the rate\tof Rs.\t12 20 per month. The\ndefendant preferred a revision petition which was dismissed.\n     The suit  was fixed  for hearing.\tThe tenant  moved an\napplication  for   adjournment\twhich\twas  rejected.\t the\nplaintiff witnesses  were examined  and the suit was decreed\nex-parte.\n     On an  application moved  by the  defendant praying for\nrelief under\n826\nOrder IX Rule 13 CPC, the trial judge set aside the ex-parte\ndecree and set down the suit for proceeding further from the\nstage it was decreed ex-parte.\n     The respondent-landlord moved an application contending\nthat as\t there was  irregularity and delay in depositing the\nrent, the  defence of  the appellant  be struck\t off for his\nfailure to strictly comply with the order made under Section\n11A, but  the trial judge rejected it on the ground that the\nearlier order  was made\t prior to the date on which the suit\nwas decreed  ex-parte; on  the setting aside of the ex-parte\ndecree and  revival of the suit, the order giving directions\nfor deposit  of future\trent does  not\tper  se\t revive\t and\ntherefore even\tif there was some default on the part of the\ntenant in  depositing the rent, his defence cannot be struck\noff.\n     The  respondent-landlord\tmoved  a  revision  petition\nbefore the  High  Court.A  Division  Bench  interpreted\t the\nexpression 'shall' in Sec. 11A of the Act, as mandatory, and\nfinding that there was default in making the deposit for the\nmonths mentioned  in the landlords' application, it could be\nshown that  there was  non-compliance with  the order passed\nunder Sec.  11A, and therefore 'the tenant will have to bear\nthe consequence\t thereto.' It  further\theld  that  'once  a\ndefault is  found, the\tcourts are  powerless; the statutory\nconsequences are bound to follow,' It made the rule absolute\nand set\t aside the  order of  the trial\t judge\trefusing  to\nstrike off  the defence\t of the\t appellant and\tdirected the\ntrial judge  to note that the defence of the appellant would\nbe deemed  to have  been struck off due to non-compliance of\nthe order Passed under Section 11A.\n     Allowing the Appeal to this Court,\n^\n     HELD:  1.\t (i)  Failure  to  comply  with\t an  earlier\ndirection should  not necessarily  visit the tenant with the\nconsequence of\this defence  being struck  off because there\nmight  be   myriad  situations\t in  which  default  may  be\ncommitted. The\tCourt should  adopt such  a construction  as\nwould not render the court powerless in a situation in which\nends of justice demand relief being granted. [835 F-F]\n     In the  instant case,  the High  Court  had  adopted  a\nconstruction of\t Section 11A  of the  Act which would defeat\nthe beneficient\t nature of  the pro  vision. The decision of\nthe High Court is set aside because it proceeds on the basis\nthat once  there is  default, the  tenant  must\t suffer\t the\nconsequences of\t it. The  trial judge  held that once a suit\nended in an ex-parte decree the earlier direction for making\nnecessary  deposit   given  under   Sec.  11A  would  remain\nineffective even  if the  ex-parte degree  is set  aside and\nwould not revive, was rightly disapproved by the High Court.\nThe trial  judge did  grant relief to the tenant by refusing\nto strike  off the  defence, but on an erroneous view of the\nlaw. The  High Court  reversed it  on yet  another erroneous\nview of\t law holding  that the\tcourt was powerless to grant\nany relief  once a  default is established. [835 F-H; 836 A-\nB].\n827\n     (ii) The  tenant has  deposited all  the arrears. There\nwas some  irregularity in  making the deposit but it was not\nof such a nature as to visit the tenant with the consequence\nof striking  off his defence. The judgment of the High Court\ndirecting that the defence be deemed to be struck off is set\naside and the order of the trial judge is restored. [836 C]\n     2 (i)  Section I  IA, can\the styled  as a check on the\ntendency of  the defendant  to protract\t the  litigation  by\nfrivolous defences more especially where the duty to pay the\nrent is unmistakably admitted. [830 F]\n     (ii) In a suit for eviction, Sec. 11A enables the court\nto give\t a direction  to pay  rent which is claimed to be in\narrears as  also to  compel, the  defendant who continues to\nremain in  possession during the pendency of the proceedings\nto perform  his obligation to deposit the rent regularly. It\nalso enables  the court\t to determine  the rate\t of rent  at\nwhich the  deposit shall be made, where in a case there is a\ndispute as to the rate of rent. [830 G]\n     (iii) An  undeniable feature  of the  tenancies in this\ncountry is  that, the  tenancy\tis  generally  oral  and  no\nwritten record\tis usually  available to furnish evidence as\nto the\tterms of  lease. Giving\t a receipt for the rent paid\nhas not\t still become  a part  of the culture of a landlord.\nTherefore, where  eviction is  sought on  the ground of non-\npayment of  rent,  it  places  a  tenant  at  a\t comparative\ndisadvantage if\t the landlord  chooses to  claim rent at the\nrate which  is beyond  the capacity of the tenant to pay. In\nsuch a\tsituation, the\ttenant will  be\t exposed  to  double\njeopardy in  that on  a\t prima\tface  pleading\the  will  be\ndirected to  deposit the  rent at  the rate  claimed by\t the\nlandlord, if  the court has no power to determine rate at an\ninterim stage. Such power is conferred by Section 11A on the\nCourt.\tIt  is\twhole-some  provision  which  would  advance\njustice. [830 H; 83 1 A-C]\n     3. Where  the legislature\tuses the  two words  may and\nshall\tin two\tdifferent parts\t of the same provision prima\nfacie it  would appear\tthat the  Legislature manifested its\nintention to  make one part directory and another mandatory.\nBut that  by itself  is not decisive. The power of the court\nstill to  ascertain the real intention of the Legislature by\ncarefully examining  the scope\tof the\tstatute to  find out\nwhether the  provision is directory or mandatory remains un-\nimpaired even  where both  the words  are used\tin the\tsame\nprovision,\n\t\t\t\t\t      [833 H; 834 A]\n     In the  instant case,  if one ascertains the intendment\nof the\tlegislature, the purpose for which the provision was\nenacted, the beneficent nature of the statute-to protect the\nharassed tenant,  it does  not require long argument to hold\nthat the  expression 'shill'  was used\tnot with  a view  to\nmaking the  provision mandatory\t or imperative but it to was\nbe directory.  Such a construction would advance the purpose\nfor which  the Act  was enacted\t namely\t the  protection  of\ntenants. It  will also not render the court powerless in the\nface of\t harsh facts where striking off the defence would be\nnothing short of miscarriage of justice. [833 D-E]\n828\n     R.V Inhabitants  of Great\tBolton, (1828) 8B & 71 at 74\nGovindlal Chaganlal Patel v. The Agricultural Produce Market\nCommittee, Godhra and others<\/a>, [1976]1 SCR 451, referred to.\n     4. Where  the court fixes a time to do thing, the court\nalways retains\tthe power  to extend  the time for doing so.\nSec. 148  of the Code of Civil procedure provides that where\nany period is fixed or granted by the court for the doing of\nany act prescribed or allowed by the Code, the Court may, in\nits discretion, from time to time, enlarge such period, even\nthough the  period originally  fixed  or  granted  may\thave\nexpired. The  principle this  section  must  govern  in\t not\nwhittling down\tthe discretion\tconferred on  the court,  by\nSection 11A of the Act. [834 F-G]\n     Shyamcharan Sharma\t v  Dharamdas,\t[1980]\t2  SCR\t334,\nreferred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1365 of
\n1978<\/span>
\n     From the  Judgment and Order dated 11.8.77 of the Patna
\nHigh Court in Civil Revision No. 585 of 1976.\n<\/p>\n
     B.P. Singh R. Kumar and R. Prakash for the Appellants.
\n     Mrs. Gian Sudha Misra for the Respondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     DESAI,  J.\t  Where\t a  plaintiff  in  a  suit  bitterly
\ncomplains  that\t  the  defendant  would\t be  getting  unfair
\nadvantage of his own lapse, if we were to interfere with the
\njudgment rendered  by the  High Court,\twe put\tourselves on
\ncaution whether such be the outcome of our setting aside the
\norder under  appeal. Unwittingly, this Court should not be a
\nparty to  the conferment  of an\t undeserved advantage  on  a
\nparty to  a proceeding\tguilty of  a lapse though remediable
\nand  even  unintentional.  Deeper  probing  into  the  facts
\nreveals that  the boot\tis on  the other  foot in  that\t the
\nrespondent-plaintiff is wholly to be blamed for the delay.\n<\/p>\n
     The facts\tfirst. The respondent-plaintiff field a suit
\nfor eviction  against the  appellant-defendent on  the\tonly
\nground that  the tenant committed default in payment of rent
\nfor the\t period May,  1969 to  December, 1971. The defendant
\ncontested the suit inter-\n<\/p>\n
829<\/span><\/p>\n
alia contending\t that he  was not in default. There followed
\nan application\tby the\trespondent-landlord for\t a direction
\nunder Sec.  11A of  the Bihar  Buildings  (Lease,  Rent\t and
\nEviction) Control  Act, 1947  (‘Act’ for short). Section 11A
\nreads as under:\n<\/p>\n
\t  “11A. Deposit\t of rent  by tenants  in  suits\t for
\n     ejectment- If  in a  suit for recovery of possession of
\n     any building  the tenant  contests the suit, as regards
\n     claim  for\t  ejectment  the   landlord  may   make\t  an
\n     application at  any stage\tof the suit for order on the
\n     tenant to\tdeposit month  by month\t rent at  a rate  at
\n     which it was last paid and also the arrears of rent, if
\n     any and  the Court,  after giving an opportunity to the
\n     par- ties to be heard, may make an order for deposit of
\n     rent at  such rate\t as may be determined month by month
\n     and the  arrears of  rent, if any and on failure of the
\n     tenant to\tdeposit the  arrears of\t rent within fifteen
\n     days of  the date of the order or the rent at such rate
\n     for  any  month  by  the  fifteenth  day  of  the\tnext
\n     following month,  the Court  shall\t order\tthe  defence
\n     against ejectment to be struck out and the tenent to be
\n     placed in\tthe same  position as if he had not defended
\n     the claim to ejectment. The landlord may also apply for
\n     permission\t to  withdraw  the  deposited  rent  without
\n     prejudice to  his right  to claim\tdecree for ejectment
\n     and the  Court may\t permit him  to do so. The Court may
\n     further order  recovery of\t cost of suit and such other
\n     compensation as  may  be  determined  by  it  from\t the
\n     tenant.”\n<\/p><\/blockquote>\n
     The prayer\t in the\t application was that the defendant-\n<\/p><\/blockquote>\n
tenant be  directed to\tdeposit the rent in arrears upto and
\ninclusive of  June 1973 within a period of fifteen days from
\nthe date  of the order and a further direction be given that
\nhe should  continue to deposit the rent from month to month.
\nThe learned  Judge made\t an order directing the appellant to
\ndeposit rent  for the period upon and inclusive of June 1973
\nat the\trate of Rs. 32 per month and there after to continue
\nto deposit  the rent  from month to month at the rate of Rs.
\n12.20 per  month. The  tenant preferred\t a revision petition
\nwhich was  dismissed on\t March 26,  1974. The such was fixed
\nfore haring  on\t January  28,  1975.  The  tenant  moved  an
\napplication for\t adjournment which was rejected. Plaintiff’s
\nwitnesses were examined and the suit was decreed ex-parte on
\nJanuary 30,  1975. On  an application moved by the defendant
\npraying for relief under
\n830<\/span>
\nOrder IX  Rule 13, Code of Civil Procedure the learned Judge
\nset aside  the ex-parte\t decree and  set down  the suit\t for
\nproceeding further  from the  stage where it was decreed ex-
\nparte. On  January 5, 1976, the respondent-landlord moved an
\napplication  praying  that  as\tthere  was  irregularity  in
\ndepositing the\trent for  the month  of August\tto  October,
\n1975, defence  of the  appellant  be  struck  off,  the\t his
\nfailure to strictly comply with the order made under Section
\n1 IA.  After the  appellant filed his rejoinder, the learned
\nJudge heard  the application  and rejected  the same  on the
\nground that  as the earlier order was made prior to the date
\non which the suit was decreed exparate, on the setting aside
\nof the\texparte decree\tand revival  of the  suit, the order
\ngiving directions for deposit of future rent does not per se
\nrevive and  therefore even  if there was some default on the
\npart of\t the tenant  in depositing  the rent  for the months
\nfrom February  to April,  1979, his defence cannot be struck
\noff. Promptly,\tthe  respondent-landlord  moved\t a  revision
\npetition before\t the High Court being Civil Revision No. 585
\nof 1976.A  Division  Bench  of\tthe  High  Court  heard\t and
\ndisposed of  the revision  petition on\tAugust 11, 1977. The
\nlearned Judges\tof the High Court made the rule absolute and
\nset aside  the order  of the learned trial Judge refusing to
\nstrike off  the defence\t of the\t appellant and\tdirected the
\nlearned Judge to note that the defence of the appellant will
\nbe deemed  to have  been struck off due to non-compliance of
\nthe order dated April 26, 1973. Hence this appeal by special
\nleave which is being heard after seven years.\n<\/p>\n
     Section 11A,  to some  extent, can be styled as a check
\non the\ttendency of the defendent to protract the litigation
\nby frivolous  defences more especially where the duty to pay
\nthe rent  is unmistakably  admitted. In a suit for eviction,
\nSec. 11A  enables the  court to give a direction to pay rent
\nwhich is  claimed to  be in  arrears as\t also to compell the
\ndefendent who  continues to  remain in possession during the
\npendency of  the proceedings  to perform  his obligation  to
\ndeposit the  rent regularly.  It also  enables the  court to
\ndeter mine  the rate  of rent  at which the deposit shall be
\nmade, wherein  a case  there is\t a dispute as to the rate of
\nrent. It  is an\t undeniable feature of the tenancies in this
\ncountry that  more or less excluding the metropolitan areas,
\nthe tenancy  is generally  oral and  no\t written  record  is
\nusually available  to furnish  evidence as  to the  terms of
\nlease. Giving  a receipt  for the  rent paid  has not  still
\nbecome a part of the culture of a landlord. Therefore where
\n831<\/span>
\neviction is  sought on the ground of non-payment of rent, it
\nplaces\t a tenant  at  a  comparative  disadvantage  if\t the
\nlandlord chooses  to claim  rent at the rate which is beyond
\nthe capacity  of the tenant to pay. In such a situation, the
\ntenant will be exposed to double jeopardy in that on a prima
\nfacie pleading\the will\t be directed  to deposit the rent at
\nthe rate  claimed by the landlord, if the court has no power
\nto determine rate of rent at an interim stage. Such power is
\nconferred by  Sec. 11A\ton the\tcourt. The  court  can\talso
\ndetermine as  to from  what date the tenant appears to be in
\narrears so  that an  appropriate direction can be given that
\nthe rent  in  arrears  may  be\tdeposited  within  the\ttime
\nstipulated by the court as also future rent may be deposited
\nregularly in  the court.  It is a whole some provision which
\nwould advance justice.\n<\/p>\n
     Now where\tpower is conferred on the court to give such
\ndirections, a  sanction had  to be  created to guard against
\nthe failure  to comply\twith the  court’s  directions.\tThis
\nsanction is  to be  found in  the conferment of power on the
\ncourt to  strike off the defence of the tenant if the tenant
\nfails  to   comply  with  the  order  of  the  court  giving
\ndirections for\tdeposit. Such a sanction would again advance
\njustice. So far there is no dispute.\n<\/p>\n
     The contention  of the  landlord which has found favour
\nwith the  High Court  is that  the moment the failure of the
\ntenant to  comply with\tthe earlier  order is brought to the
\nnotice of  the court,  without anything more the defence has
\nto be  struck off.  This view of the court is founded on the
\nuse of\tthe expression\t‘shall’ in  that part  of section by
\nwhich power  in conferred  on the  court to  strike off\t the
\ndefence. The relevant part of the expression reads thus: F
\n\t  “…. on  failure of\tthe tenant  to\tdeposit\t the
\n     arrears of\t rent within fifteen days of the date of the
\n     order or  the rent\t at such  rate for  any month by the
\n     fifteenth day  of next following month, the court shall
\n     order the\tdefence against\t ejectment to  be struck off
\n     and the  tenant be placed in the same position as if he
\n     had not defended the claim to ejectment.”\n<\/p>\n
Interpreting this  expression ‘shall’  as mandatory  in\t the
\nafore-mentioned clause,\t the High  Court was  of the opinion
\nthat as\t there was  default in\tmaking the  deposit for\t the
\nmonth herein before mentioned
\n832<\/span>
\nwhich would  show non-compliance  with the  order dated July
\n26, 1973  passed under\tSec. 11A  and therefore\t ‘the tenant
\nwill have  to bear  consequences thereto  ‘ The\t High  Court
\nfurther observed  that ‘once  a default is found, the courts
\nare powerless;\tthe  statutory\tconsequences  are  bound  to
\nfollow.’
\n     In the  back-drop of  the rival  contentions, the\tneat
\nquestion that arises is: whether the use of the word ‘shall’
\nin  the\t  expression  herein   before  extracted  makes\t the
\nprovision imperative or mandatory or the court still retains
\nthe discretion to relieve against the default ?\n<\/p>\n
     Ordinarily the  use of  the word  ‘shall’\tprima  facie
\nindicates that\tthe provision  is imperative  in  character.
\nHowever, by  a catena  of decisions,  it is well-established
\nthat the court while considering whether the mere use of the
\nword ‘shall’  would make  the provision imperative, it would
\nascertain  the\t intenedment  of  the  legislature  and\t the
\nconsequences flowing  from its\town construction of the word
\n‘shall’. If  the use of the word ‘shall’ makes the provision
\nimperative, the inevitable consequence that flows from it is
\nthat the  court would  be powerless to grant any relief even
\nwhere the  justice of  the case\t so  demands.  If  the\tword
\n‘shall’ is treated as mandatory the net effect would be that
\neven where the default in complying with the direction given
\nby the\tcourt is  technical, fortuitous,  unintended  or  on
\naccount\t of   circumstances  beyond   the  control   of\t the
\ndefaulter, yet\tthe court  would not  be able  to grant\t any
\nrelief or  assistance to  such a  person. Once\ta default is
\nfound to be of a very technical nature in complying with the
\nearlier order,\tthe court must have power to relieve against
\na drastic  consequence all  the more  so if  it is satisfied
\nthat there  was a  formal or  technical default in complying
\nwith its order. To illustrate, if the tenant while he has on
\nthe way to the court on the 15th day to deposit the rent for
\nthe just preceeding month as directed by an order under Sec.
\n11A, met  with an  accident on\tthe road and could not reach
\nthe court  before the  court hours  were over,\tshould he be
\npenalised by his defence being struck off. Even if the court
\nis satisfied that he was on the way to the court to make the
\nnecessary deposit,  that he  had the  requisite amount\twith
\nhim, and  that he  started in time to reach the court within
\nthe prescribed\tcourt hours  and yet by circumstances beyond
\nhis control,  he met  with an  accident would  the court  be
\npowerless to  grant  him  relief?  This\t illustration  would
\nsuffice to
\n833<\/span>
\nthe intendment\tof the\tlegislature that  it never  used the
\nword ‘shall’   to  make it  so imperative  as to  render the
\ncourt powerless.\n<\/p>\n
     The statute  in which  the expression  is used  is\t The
\nBihar Buildings\t (Lease, Rent  and  Eviction)  Control\tAct,
\n1947. It  is a\tstatute enacted\t with a\t view to providing a
\nfetter on  the right  of a  landlord to\t evict tenant at his
\nwhim or\t fancy. The  long title of the Act shows that it was
\nenacted to regulate the letting of buildings 13 and the rent
\nfor such  buildings and to prevent unreason able eviction of
\ntenants therefrom  in the  Province of\tBihar.A provision in
\nsuch a\tstatute primarily  enacted  for\t the  protection  of
\ntenants against\t unreasonable eviction\tthat  the  court  is
\nrequired to find out whether the word ‘shall’ was used as to
\nmake the provision mandatory or imperative. Obviously if one
\nascertains the\tintendment of  the legislature,\t the purpose
\nfor which  the provision was enacted, the beneficient nature
\nof the\tstatute and to protect the harassed tenant obviously
\nit  does   not\trequire\t long  argument\t to  hold  that\t the
\nexpression ‘shall’  was used  not with\ta view to making the
\nprovision  mandatory   or  imperative\tbut  it\t was  to  be
\ndirectory. Such a construction would advance the purpose for
\nwhich the  Act was enacted namely the protection of tenants.
\nIt will\t also not  render the court powerless in the face of
\nharsh facts  where striking off the defence would be nothing
\nshort of miscarriage of justice.\n<\/p>\n
     Mrs.  Gyan\t  Sudha\t Misra,\t  learned  counsel   however
\ncontended that\twhere the  expression ‘may’ and ‘shall’ both
\nare used in the same provision the legislative intendment is
\nunmistakable that  the provision  where the  word ‘shall’ is
\nused must  be held  to be mandatory because the previous use
\nof the\texpression ‘may’  shows\t that  the  legislature\t was
\nconscious, which part of the provision is to be directly and
\nwhich  other  part  to\tbe  mandatory.\tShe  relied  upon  a
\nstatement in  Maxwell on  the Interpretation of Satutes 12th
\nEdn. Page  282 where  in  it  is  stated  relying  upon\t the
\ndecision is R. v. Inhabitants of Great Bolton(1) that “where
\nthe Legislature\t in the\t same sentence uses different words,
\nwe must\t presume that  they were  used in  order to  express
\ndifferent ideas.”  Obviously where  the legislature uses two
\nwords ‘may’  and ‘shall’  in two different parts of the same
\nprovision prima\t facie it  would appear that the legislature
\nmanifested its\tintention to  make one\tpart  directory\t and
\nanother
\n(1) [1828] 8 B & C  71 at 74
\n834<\/span>
\nmandatory. But\tthat by itself is not decisive. The power of
\nthe court  still to  ascertain the  real  intention  of\t the
\nLegislature by care fully examining the scope of the statute
\nto find\t out whether the provision is directory or mandatory
\nremains unimpaired even where both the words are used in the
\nsame  provision.   In  Govindlal  Chagganlal  Patel  v.\t The
\nAgricultural Produce  Market Committee\tGodhra and others<\/a>(1)
\nChandrachud,  J.   speaking  for   the\tCourt  approved\t the
\nfollowing passage  in Crawford\ton ‘Statutory  Construction’
\n(Ed. 1940 Art. 261, p. 516):\n<\/p>\n
\t  “The question as to whether a statute is mandatory
\n     or directory depends upon the intent of the legislature
\n     and not  upon the\tlanguage  in  which  the  intent  is
\n     clothed. The  meaning and\tintention of the legislature
\n     must govern  and these  are to be ascertained, not only
\n     from the  phrasacology of the provision, but also while
\n     considering its nature, its design and the consequences
\n     which would  follow from  construing it  the one way or
\n     the other.”<\/p><\/blockquote>\n
     Applying this well-recognised canon of construction the
\nconclusion is in escapable that the word ‘shall’ used in the
\nprovision is directory and not mandatory and must be read as
\n‘may’. .\n<\/p>\n
     This  construction\t  also\tcommends   to  us   for\t the
\nadditional reason  that where the court fixes a time to do a
\nthing, the court always retains the power to extend the time
\nfor doing  so. Sec.  148 of  the  Code\tof  Civil  Procedure
\nprovides that  where any  period is  filed or granted by the
\ncourt for  the doing of any act prescribed or allowed by the
\nCode, the  Court may,  in its discretion, from time to time,
\nenlarge such period, even though the period originally fixed
\nor granted  may have  expired. The principle of this section
\nmust govern  in not  whittling down the discretion conferred
\non the court.\n<\/p>\n
     The view  which we\t are taking  is in  accord with\t the
\nconstruction put  by this court on a provision imparimateria
\nin a  similar statute. In Shyamcharan Sharma v. Dharamdas<\/a>(2)
\na question that arose
\n(1) [1976] 1 S.C.R. 451.\n<\/p>\n
(2) [1980] 2 S.C.R. 334.\n<\/p>\n
835<\/span><\/p>\n
before this  Court was\twhether the  construction put by the
\nHigh   Court on\t Sec. 13  (1) read  with Sec.  13 (6) of the
\nMadhya Pradesh\tAccommodation Control Act, 1961 accords with
\nthe intendment\tof the\tLegislature. The  relevant provision
\nprovides that on an application, a tenant can be directed by
\nthe Court to pay to the landlord an amount calculated at the
\nrate of\t the rent  at which  it was  paid for the period for
\nwhich a\t tenant may have made a default including the period
\nsubsequent thereto  upto the  end of  the month\t previous to
\nthat in\t which the  deposit or\tpayment is  made  and  shall
\nthereafter continue  to deposit or pay month by month by the
\nof   tenth of  each succeeding\tmonth, the sum equivalent to
\nthe rent.  It was contended that the provision i i mandatory
\nso that\t the court has to power to extend the time initially
\nliked by  it for  making the deposit.A submission before the
\ncourt was that the expression used in sub-sec. (1) discloses
\nthe legislative intent and the use of the word ‘may’ in sub-
\nsec. (6)  would not make the provision directory. The Court,
\nspeaking through  O. Chinnappa\tReddy, J. after ascertaining
\nthe intendment\tof the\tLegislature held  that the court has
\nthe jurisdiction  to extend  time once\tfixed for deposit or
\npayment of  monthly rent falling due after the filing of the
\nsuit.\n<\/p>\n
     Failure to\t comply with an earlier direction should not
\nnecessarily visit  the tenant  with the\t consequence of\t his
\ndefence being  struck off  because  there  might  be  myriad
\nsituations in  which default  may be  committed.  The  Court
\nshould adopt  such a  construction as  would not  render the
\ncourt powerless\t in a  situation in  which ends\t of  justice
\ndemand relief\t   being granted. The High Court has adopted
\nsuch a construction which would defeat the beneficent nature
\nof provision. The decision of the High Court will have to be
\nset l,\taside because  it proceeds  on the  basis that\tonce
\nthere is default, the tenant must suffer the consequences of
\nit.\n<\/p>\n
     The learned trial Judge had held that once a suit ended
\nin exparte decree the earlier direction for making necessary
\ndeposit given under Sec. it would remain ineffective even if
\nthe exparte is, decree is set aside and would not revive was
\nrightly disapproved  by the  High Court.  To that extent the
\nview of the learned trial Judge was unsustainable.\n<\/p>\n
     The learned  trial Judge did grant relief to the tenant
\nby refusing  to strike\toff the\t defence, of  course, on  an
\nerroneous view
\n836<\/span>
\nof law\tthat the  direction did not revive after the setting
\naside of the ex-parte decree. And the High Court reversed it
\non  another  crroneous\tview  of  law  that  the  court\t was
\npowerless to  grant any relief once a default is established
\n? The question then is what relief we should grant ?\n<\/p>\n
     The tenant\t has deposited\tall the\t arrears. There\t was
\nsome irregularity  in making  the deposit  but it was not of
\nsuch a nature as to visit the tenant with the consequence of
\nstriking off his defence. Therefore the Judgment of the High
\nCourt directing\t that the defence be deemed to be struck off
\nis set\taside and  the order  of the  learned trial Judge is
\nrestored for the reasons herein stated.\n<\/p>\n
     This appeal  is allowed  accordingly and  the matter is
\nremitted to the trial court to proceed further with the suit
\nfrom the  stage where  the defence  of the present appellant
\nwas struck  off. The  defence will be treated as part of the
\nproceedings and suit shall be proceeded with accordingly. As
\nthe matter  is delayed\tfor long,  we direct  that the\tsuit
\nshall be  accorded priority  by the trial court and shall be
\ndisposed of  within a  period of six months from the date of
\nthis judgment.\n<\/p>\n
     Mrs. Misra\t on behalf  of the respondent submitted that
\nthe respondent\thas filed  a second suit for eviction on the
\nground of  personal requirement. If that is pending the same
\nmust be\t heard alongwith  the suit  from which\tthe  present
\nappeal arises.\n<\/p>\n
     We leave  the parties  to bear  their respective  costs
\nboth in\t the High  Court as  well as in this Court. Costs in
\nthe trial court will abide the outcome of the suit.\n<\/p>\n
N.V.K.\t\t\t\t\t     Appeal Allowed;\n837<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ganesh Prasad Sah Kesari & Anr vs Lakshmi Narayan Gupta on 18 April, 1985 Equivalent citations: 1985 AIR 964, 1985 SCR (3) 825 Author: D Desai Bench: Desai, D.A. PETITIONER: GANESH PRASAD SAH KESARI & ANR. Vs. RESPONDENT: LAKSHMI NARAYAN GUPTA DATE OF JUDGMENT18\/04\/1985 BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-147696","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGanesh Prasad Sah Kesari & Anr vs Lakshmi Narayan Gupta on 18 April, 1985 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ganesh-prasad-sah-kesari-anr-vs-lakshmi-narayan-gupta-on-18-april-1985\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ganesh Prasad Sah Kesari & Anr vs Lakshmi Narayan Gupta on 18 April, 1985 - 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