Chitra Kumar Tiwari v. Gangaram — 1966 DIGILAW 4 (MP)

JUDGMENT 1. The suit from which the second appeal arises was instituted by Smt. Sahodra Bai and the present appellants Chitra Kumar and Laxman Kumar, for recovery of arrears of rent and ejectment of Gangaram respondent on the grounds that the tenant did not pay the arrears of rent due by him within two months of notice of demand under section 12(1) (a) of the M. P. Accommodation Control Act, 1961 (hereinafter called the 'Act') and that the plaintiffs genuinely required the suit accommodation for their residence under section 12 (1) (e) of the Act. The arrears of rent were claimed for 16 months at Rs. 13 per month from 1 April 1961 to 31 July 1962. 2. The suit was resisted by the defendant on the grounds that the plaintiffs are not the landlords; that the defendant had paid rent upto 30 September 1961; that he was further entitled to deduct Rs. 73-50 p. which he incurred on the repairs and that the plaintiffs did not bona fide require the suit accommodation. 3. In the trial Court the tenant deposited the entire arrears of rent as claimed in the suit, within one month of the service of writ of summons on him. Thereafter, he went on depositing rent every month as required under second part of section 13 (1) of the Act, except the rent for the month of December 1962, which should have been deposited by 15 January 1963 but was in fact deposited on 23 January 1963. However, this default escaped unnoticed in the trial Court. 4. The trial Judge held the plaintiffs to be the landlords of the suit house by virtue of section 2 (b) of the Act. He held that the tenant was not liable to be evicted as he had deposited arrears of rent within one month of the service of writ of summons on him. He further held that the plaintiffs did not need the house for their residence and that the accommodation in their possession was not insufficient to meet their requirements. In the result, he dismissed the suit. 5. The plaintiffs took an appeal and reiterated the ground of requirement for their own residence under section 12 (1) (e). The ground under section 12 (1) (a) was not raised in the memorandum of appeal. In the result, he dismissed the suit. 5. The plaintiffs took an appeal and reiterated the ground of requirement for their own residence under section 12 (1) (e). The ground under section 12 (1) (a) was not raised in the memorandum of appeal. But, while the appeal was being heard, the appellants contended that the defence was liable to be struck out because the tenant did not comply with the provisions of section 13 (1) of the Act. During the pendency of the appeal Smt. Sahodra Bai died. An application for leave to amend the plaint was then made in the first appeal Court to introduce a new ground that the suit premises were also required for Chitra Kumar plaintiff. 6. The learned Judge of first appeal Court refused leave to amend the plaint. Regarding striking out the defence, he observed that the appellant did not point out for which particular months the defendant had made default in payment of rent under section 13 of the Act. Moreover, in his opinion, the provision being discretionarry, the trial Court should have been moved, and the defence could not be: truck out at the appellate stage in those circumstances. He then agreed with the trial Court in its finding on the third plaintiff's requirement of the suit premises. In the result, the appeal was dismissed except that the decree for costs was modified. 7. In this second appeal Shri Awasthi, learned counsel for the appellants contends that because of non-compliance with the second part of section 13 (1) of the Act, the defence was bound to be struck out under section 13 (6) of the Act, which provision is mandatory. 7. In this second appeal Shri Awasthi, learned counsel for the appellants contends that because of non-compliance with the second part of section 13 (1) of the Act, the defence was bound to be struck out under section 13 (6) of the Act, which provision is mandatory. The two sub sections of section 13 read thus :- "(1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in section 12, the tenant shall, within one month of the service of the writ of summons on him or within such further time as the Court may on an application made to it, allow in this behalf, deposit in the Court to pay to the land lord an amount calculated at the rate of rent at which it was paid for the period for which the tenant may have made 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 15th of each succeeding month a sum equivalent to the Tent at that rate." (This sub-section has been quoted above after splitting up into two parts.) "(6) If a tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit." The question is whether in case of a default under sub-section (1), the Court is bound to strike out the defence under sub-section (6)? In my opinion, the question must be answered in the negative. I shall presently state the reasons. 8. On a plain reading of section 13 (6), it is directory and the Court 'may', in exercise of its discretion, refuse to strike out the defence. The discretion is indicated by the word 'may' in sub-section (6), in contrast to 'shall' which is usually employed when a provision is intended to be mandatory. There is no denying that 'may' IS sometimes used in statutes in the mandatory sense also; it also cannot be generalised that 'may' is always used to express a mandate. It is unnecessary to dilate further on that point because in Societe De Traction Vs. Kamini Engineering Co. There is no denying that 'may' IS sometimes used in statutes in the mandatory sense also; it also cannot be generalised that 'may' is always used to express a mandate. It is unnecessary to dilate further on that point because in Societe De Traction Vs. Kamini Engineering Co. Ltd., AIR 1965 SC 558, their Lordships have laid down thus :- "It cannot be disputed that the use of the expression 'may' is not decisive. Having regard to the context, the expression 'may' used in a statute has varying significance. In some contexts it is purely permissive, in others it may confer a power and make it obligatory upon the person invested with the power to exercise it as laid down." It is clear from the above dictum that the word 'may' is not always used as 'shall'. "Generally those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business, and by the failure to obey no prejudice will occur to those whose rights are protected by the statute, are not commonly considered mandatory. Likewise, if the act is performed but not in the time or in the precise manlier directed by the statute, the provision will not be considered mandatory if the purpose of the statute has been substantially complied with and no substantial rights have been jeopardized." (Sutherland Statutory Construction (3rd Edition) Vol. 2 at page 216). In Veluswami Vs. Raja Nainar, AIR 1959 SC 422 , their Lordships laid down thus: "It is a sound rule of construction that procedural enactments should be construed liberally and in such manner as to render the enforcement of substantive rights effective. No general rule can be laid down for deciding whether any particular provision in a statute is mandatory or only directory. In each case the Court has to decide the legislative intent (see Banwarilal Vs. State of Bihar). To decide this, the Court has to consider not only the actual words used but also the purpose for which the requirement has been enacted, particularly in the context of the other pro visions of the Act and the general scheme of the Act. In Collector of Monghyr Vs. State of Bihar). To decide this, the Court has to consider not only the actual words used but also the purpose for which the requirement has been enacted, particularly in the context of the other pro visions of the Act and the general scheme of the Act. In Collector of Monghyr Vs. Keshav Prasad, AIR 1962 SC 1694 , it is observed: "The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision which, for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of the other provisions of the Act and the general scheme thereof. It seems to me quite clear that the object and purpose of this provision is to prevent dilatory tactics of the tenant j in resisting a suit on frivolous grounds. The requirement is in terrorem. However striking out the defence is an extreme step as it deprives the tenant of a very valuable right, that is, to resist the suit on the ground that any requirement under S. 12(1) of the Act is not fulfilled Therefore, in my opinion, that power must be sparingly used and the defendant must not be visited with that penalty except in suitable cases, and only as a last resort, that is, where the Court is satisfied that the tenant is guilty of contumacy or positive mala fides. 9. Whether sub-section (6) is discretionary or mandatory was considered in Bimalchand Vs. Laxminarayan, 1964 JLJ-Short Note 170. The view taken was that the Court was vested with discretion to strike out the defence or not, but that discretion has to be exercised judiciously and not arbitrarily or capriciously. Earlier in Harnamsingh Vs. Babulal, 1964 JLJ Short Note 161, it was pointed out that the use of the words 'may' and 'shall' in one and the same sentence in sub-section (6) is significant. To strike out the defence is discretionary but to proceed with the hearing of the suit, after striking out the defence, is imperative. It is stated in Sutherland's Statutory Construction (3rd Edition) Vol. 3. To strike out the defence is discretionary but to proceed with the hearing of the suit, after striking out the defence, is imperative. It is stated in Sutherland's Statutory Construction (3rd Edition) Vol. 3. at page 116 :- Where both mandatory and directory verbs are used in the same statute or in the same section paragraph, or sentence of a statute, it is a fair inference that the legislature realised the difference in meaning, and, intended that the verbs used should carry with them their ordinary meanings. Especially is this true where "shall" and "may" are used in close juxtaposition in a statutory provision, under circumstances that would indicate that a different treatment is intended for the predicates following them." 10. Shri Awasthi emphasises that no power is given for extending time for payment in the second part of section 13 (1) in contract to the power given in the first part and, on that basis, argues that the Court has no discretion under section 13 (6) to condone delay in the case of a sub-sequent deposit. In my opinion, the absence of a specific power under the second part of section 13 (1) does not abridge the scope of section 13 (6). If the defendant deposits rent for a subsequent month (under the second part of section 13 (1), after the prescribed time, all that will be said is that there has been non-compliance with section 13. But then it will be seen under sub-section (6) of that section whether it is a fit case for making an order striking out the defence. It is here that the Court may, in exercise of its discretion, refuse to strike out the defence. Let it be said just now that for such non-compliance, however, the defendant deprives himself of the benefit under section 12 (3) of the Act, in a suit founded on section 12 (1) (a). To me it seems quite clear that the two consequences, under section 13 (6) and under section 12 (3), are distinct and independent of each other. This aspect will be further considered hereinafter. 11. Above all, the meaning and impact of the expression "may order the defence against eviction to be struck out" has been authoritatively laid down in V. K. Verma Vs. Radheshyam, AIR 1964 SC 1317 . This aspect will be further considered hereinafter. 11. Above all, the meaning and impact of the expression "may order the defence against eviction to be struck out" has been authoritatively laid down in V. K. Verma Vs. Radheshyam, AIR 1964 SC 1317 . In that case their Lordships were considering the provisions of the Delhi Rent Control Act, 1958, Under the former legislation, viz., the Delhi. and Ajmer Rent Control Act, 1952, section 13 (5), provided that an omission or default in depositing the arrears of rent within 15 days of the date of the order or to deposit the rent for any month by the 15th of the next following month, made it incumbent on the Court to strike out the defence against ejectment. But under the said Act of 1958, which -replaced the Act of 1952, in the case of such default, the Controller "may order the defence against eviction to be struck out". Referring to the former Act and contras ting it with the new Act, the Supreme Court observed:- "The language was that on the failure of the tenant to do these things "the Court shall order the defence against ejectment to be struck out." "In the new Act section 15 (7) deals with this matter of failure of the tenant to make the payment, or, deposit as required by the Act and runs thus:- 'If a tenant fails to make payment or deposit as required by this section the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. ' "The change of the words from 'the Court shall order the defence against ejectment to be struck 'out' to the words "the Controller may order the defence against eviction to be struck out" is clearly a deliberate modification in law in favour of the tenant." In the result their Lordships held that under the new Act the Controller who takes the place of the Court has a discretion in the matter, so that in proper cases he may refuse to strike out the defence. The dictum of that case directly applies here because the wording of section 13 (6) of the Act is almost identical with section 15 (7) of the Delhi Rent Control Act, 1958, and further because, when the M. P. Accommodation Control Act, 1955 was repealed and replaced by the Act of 1961, the expression "the right of the tenant to defend shall be determined", in the old Act, was substituted by the expression" may order the defence against eviction to be struck out," in the present Act. That being so, the decision in V. K. Verma (supra) applies on all fours to section 13(6) of the M. P. Accommodation Control Act, 1961, and it is bound to be held that the Court has discretion in the matter so that in proper cases it may refuse to strike out the defence. 12. Shri Awasthi relies on Abbas Bhai Vs. Gulamnabi, AIR 1964 SC 1341 . In that case the Supreme Court considered the effect of 'tray' in the expression "Court may pass a decree for eviction" in section 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 57 of 1947 Their Lordships observed— "Sub-section (2) enacts a restriction upon the right of the landlord to sue the tenant in ejectment on the ground of non-payment of standard rent or permitted increases, by requiring him to give one more opportunity to the tenant to pay rent due by him." And, having regard to sub-section 3 (a), which specifies the circumstances in which the tenant is deemed to forfeit the protection, it was held: "In the context the expression "may" has a mandatory content : if the conditions of the clause are fulfilled the Court is bound to pass a decree in ejectment against the tenant." I regard the words "in the context" as of the utmost significance. Indeed, their Lordships in Abbas Bhai's case considered a provision analogous to section 12 (1) (a) of the Madhya Pradesh 'Accommodation Control Act 1961, which affords to the landlord a ground for eviction against the tenant. The effect of that decision on the Madhya Pradesh Act will be that a decree for eviction must be passed, and there is no discrection not to order eviction, if the requisites of section 12 (1) (a) are satisfied. The effect of that decision on the Madhya Pradesh Act will be that a decree for eviction must be passed, and there is no discrection not to order eviction, if the requisites of section 12 (1) (a) are satisfied. In that case the Supreme Court did not consider a provision in pari materia with section 13 (6) of the M. P. Act. 13. The other case relied on by Shri Awasthi is Waryamsingh and another Vs. Amarnath and another, 1954 SCR 565 = AIR 1954 SC 215 . In that case, the appellants fell into arrears with the payment of rent due for the years 1948, 1949 and the respondents made an application to the Rent Controller for eviction of the appellants under section 13 (2) (1) of the East Punjab Urban Rent Restriction Act, 1949 The appellants paid up the arrears of rent into the Court and claimed benefit of the provisions under section 13 (2) (1). The claim was allowed and the said application was dismissed. The appellants again fell into arrears with the payment of rent due for the year 1960. The respondents served on the appellants a notice calling upon the latter to pay the whole of the said rent forthwith, but the appellants failed to do so. The respondents, thereupon, filed an application under section 13 (2) (I) for eviction of the appellants on the ground of non-payment of rent. Thereafter, on the other hand, the appellants made an application to the Rent Controller for fixation of fair rent under section 4 of the said Act and in their written statement which they filed in the proceedings under section 13 (2) (1) although they admitted non-payment of rent and receipt of the notice, they pleaded that the respondents' application was barred by reason of rejection of the previous application for eviction and also on the ground of pendency of their application for fixation of fair rent. The Rent Controller dismissed the application on the ground that fixation of fair rent was awaited. In the appeal preferred by the respondents, the District Judge held that as the rent had not been pad there was no option but to direct the tenant to put the landlord in possession, Even so he dismissed the appeal on the ground of misapprehension of the legal position. In the appeal preferred by the respondents, the District Judge held that as the rent had not been pad there was no option but to direct the tenant to put the landlord in possession, Even so he dismissed the appeal on the ground of misapprehension of the legal position. The respondents then moved the Judicial Commissioner under Articles 226 and 227 of the Constitution. The Judicial Commissioner held that the Courts below acted arbitrarily in refusing to make an order for ejectment against the tenants, set aside the order of the Courts below and allowed the application for ejectment. Aggrieved by that decision, an appeal was taken to the Supreme Court by special leave. It was contended before the Supreme Court that the Judicial Commissioner acted wholly without jurisdiction as (1) the Rent Controller, or the District Judge who exercised powers under the Act, was not amenable to the jurisdiction of the High Court under Article 227 of the Constitution and (ii) that Article 227 read with Article 241 conferred no power of judicial superintendence on the Court of Judicial Commissioner, Their Lordships negatived both these contentions. While explaining the powers of superintendence the following observations were made:- "As rightly pointed out by the Judicial Commissioner in the case before us the lower Courts in refusing to make an order for ejectment acted arbitrarily. The lower Courts realised the legal position but in effect declined to do what was by section 13 (2) (1) incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law, It was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so." Then, recently, in Vishan Paul Vs. Moturam, Civil Appeal No 181 of 963 decided on the 24th March 1965, their Lordships referred to the following expression in section 13 of the said East Punjab Act, 1949. "The Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not m satisfied he shall make an order rejecting the application." and observed; - "It is contended that the section confers a discretion on the Controller which is indicated by the word MAY and by way of contrast the word SHALL used in the latter part of the same section is referred to. There is much force in this contention but the question is not res integra. This section was interpreted by this Court in Waryamsingh and another Vs. Amarnath and another, 1954, SCR 565= AIR 1954 SC 215 ,......the decision is binding on us." If I may say so, their Lordships were about to consider the effect and significance of the words 'may' and 'shall' being used in the same section, but they did not do so for the reason stated. In Waryamsingh (supra) no su.ch submission was made before their Lordships as was made in Vishan Paul's case (supra). 14. It has thus been seen that the decisions in Abbas Bhai (supra) and Waryamsingh (supra) as also Vishan Paul (supra) were on different points and the provisions which were interpreted were analogous to section 12 (1) (a) of the M. P. Accommodation Control Act, 1961. In those cases, their Lordships were not considering any provision corresponding to section 13 (6) of the Madhya Pradesh Act. Finally, Shri Awasthi relies on Sunderlal Dubey Vs. Ram Shanker Soni, Civil Revision No 170 of 1965 Decided on 31st August 1965, No doubt, in that case, a contrary view has been taken but it is also clear from the judgment that since the defendant had committed many defaults and there was no good cause shown for exercising discretion in favour of the tenant, the Court upheld the order striking out the defence which was challenged in the revision. Moreover, I am bound to follow the decision of the Supreme Court in V. K. Verma (supra) which is directly applicable to this point. I desire to add that the law on this question has been correctly stated in Dvivedi's Commentary on the M. P. Accommodation Control Act at page 338, and also in Khare's M. P. Accommodation Control Act, 1961 (Second Edition) at page 269, in both of which V. K. Verma (supra) has been cited. 15. Now, in the present case, there was one single default in making deposit under the second part of section 13 (1). In the trial Court, the rent for December 1962 was deposited on 22 January 1963, instead of by the 15th January. There was a delay of seven days. 'This default went unnoticed throughout the trial; neither the Court took notice of it nor did the plaintiff invite its attention. In the trial Court, the rent for December 1962 was deposited on 22 January 1963, instead of by the 15th January. There was a delay of seven days. 'This default went unnoticed throughout the trial; neither the Court took notice of it nor did the plaintiff invite its attention. Under section 13 (6), the Court "may order the defence to be struck out". It seems to me that if it does not, well, it does not; it must then be deemed to have exercised discretion in favour of the tenant and condoned the delay. No objection was raised even in the memorandum of appeal presented to the first appeal Court, and it was only at the stage of final arguments that this point was raised there for the first time. If having regard to the facts and circumstances of the case the first appeal Court exercised its discretion in refusing to strike out the defence, I see no justification for interference in second appeal with such a discretionary order. 16. For the appellants it is complained that the tenant did not make all deposits in the first appellate Court within the prescribed time. It appears that there was delay in depositing rent for August, September, November and December 1964 (rent for October was deposited within time). But these defaults were not brought to the notice of the first appellate court. It is a pecularity of this case that the plaintiffs did not bring to the notice of the trial Court the default committed there, in deposit of the rent for December 1962, but complained of it in the first appeal Court: and, they did not press into service in the first appeal Court, the four defaults committed there, but made in a grievance in the second appeal. Shri Jakatdar's argument is that section 13 (1) does not require the tenant to deposit rent in an appellate Court. In my opinion it is not necessary to enter in the present case into the question whether the tenant is required to deposit rent under section 13 (1) in the appellate Court as well. As no objection was taken in the first appellate Court, on a parity of reason, defence will not be struck out on that ground in the second appellate Court. 17. As no objection was taken in the first appellate Court, on a parity of reason, defence will not be struck out on that ground in the second appellate Court. 17. The result of the above discussion in that this is not a fit case where discretion should be exercised under section 13 (6) for striking out the defence. That contention of the appellants must be rejected. 18. Shri Awasthi then maintains that even a single default under section 13 (1) takes away from the defendant the protection under section 12 (3) of the Act; and, since in this case there was in fact a default the trial Court had no jurisdiction to dismiss the suit with the aid of section 12 (3) of the Act. In my opinion effect must be given to this contention. The Act protects the tenant from eviction, but the protection is not absolute. A suit can be filed against the tenant for his eviction on one or more grounds enumerated in section 12 (1). One of such grounds is non-payment of the whole of arrears of rent within two months of the service on him, of a notice of demand of arrears, The section runs thus:" 12 (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely: (a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner," Then a further protection against eviction is enacted in sub-section (3) of the same section. It reads as follows: "No order for the eviction of a tenant shall be made on the ground specified in clause (a) of sub-section (1), if the tenant makes payment or deposit as required by section 13 : Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any accommodation, he again makes a default in the payment of rent of that accommodation for three consecutive months." The trial Court dismissed the suit inspite of the fact that the defendant had made a default (in respect of rent for December 1962) so that it could not be said that he made payment or deposit "as required by section 13". It is obvious enough that because of that default, the defendant had not earned the protection which awaited him under section 12 (3). 19. Shri Jakatdar advanced a two fold defence to this: (I) the tenant did not make a default in depositing rent for three consecutive months within the meaning of the proviso which controls the enacting part of the sub-section; and, (2) the refusal to strike out the defence under section 13 (6) tantamounts to extension of time for payment of rent for the purposes of section 12 (3) as well, because the effect of condoning the delay is as if the deposit was made within the prescribed time. With regard to the first contention, Shri Jakatdar's argument is that during the continuance of a suit if the tenant deposits the entire arrears under the first part of section 13 (1), then, although he has to go on depositing rent regularly every month, under the second party, yet, it is only when he commits default for three consecutive months that he loses the protection under section 12 (3) but not otherwise. I find myself quite unable to accept this argument. 20. As I read it, the proviso comes into play in a subsequent suit for eviction under section 12 (1), (a), the first suit having been dismissed on the sole ground that the tenant bad complied with section 13. The proviso commences operation as soon as, but not before, the dismissal of a suit for eviction which was based on section 12 (1) (a) and that too, on the sole ground of compliance with section 13. The proviso commences operation as soon as, but not before, the dismissal of a suit for eviction which was based on section 12 (1) (a) and that too, on the sole ground of compliance with section 13. This is unmistakably clear from the expression "if having obtained such benefit once." employed in the proviso. That is sine quo non. What is the "benefit" referred to ? It is the dismissal of the suit purely on the ground of compliance with section 13, when a decree for eviction would have otherwise been passed because of the fulfilment of all the requisites of section 12 (1) (a) entitling the landlord to ejectment. It is no benefit under section 12 (3) that a suit is dismissed on any other ground, e.g, that the tenant was not in arrears of rent, or that within two months of the service of the demand notice on him, he paid or tendered the entire arrears of rent to the landlord who refused to accept it, because, there, it cannot be said that the tenant obtained a benefit "under section 12 (3)". The import of "such" leaves no shred of doubt that the benefit spoken of in the proviso is that benefit alone which the tenant obtained under the enacting part of the sub-section, that is, refusal to pass a decree. for eviction simply because of deposit of rent and notwithstanding the requisite under section 12 (1) (a) being satisfied. No 'other conceivable benefit to the tenant will be "such benefit" within the meaning of the proviso. And at what stage of the suit is such benefit "obtained"? In a suit for eviction based on section 12 (1) (a) alone, the tenant obtains such benefit when he makes a deposit under the first pan of section 13(1), in consequence of which the suit will be dismissed by virtue of section 12 (3); such dismissal will, invariably, be forthwith: In a suit which includes other grounds as well as that under section 12 (1) (a), the suit does not come to an end merely on such deposit, but proceeds further. The tenant does not at this stage "obtain" such benefit. The suit will be dismissed only when no other ground for ejectment would ultimately be found established. Thus, it is at the stage of the termination of a suit that the tenant "obtains" such benefit. The tenant does not at this stage "obtain" such benefit. The suit will be dismissed only when no other ground for ejectment would ultimately be found established. Thus, it is at the stage of the termination of a suit that the tenant "obtains" such benefit. In short, the tenant obtains the benefit under section 12 (3) only when there is no other ground for eviction made cut, and all requirements of section 12 (1) (a) are fulfilled but the suit is still dismissed solely on the ground that the tenant has complied with section 13. Therefore, in either case, it is only when a suit is dismissed in the final result that it can be said that the tenant has obtained the benefit, but' not earlier. On this analvsis, the proviso is entirely out of the question during the pendency of a suit. The language of section 12 (3), including its proviso, is clear and unambiguous. To construe otherwise would, besides doing violence to the proviso, produce an anomalous result. Whereas the proviso carves out an exception and is enacted, as is obvious enough, to safeguard the interest of the landlord, on the other construction, canvassed by Shri Jakatdar, it would enlarge the benefit to the tenant. It is stated in Craies on Statute Law (Sixth Edition) at page 217:- "The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it; and such a proviso cannot be construed an enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect." 21. Shri Jakatdar referred to Ayodhya Prasad Vs. Kishanlal, 1964 JLJ Short Note 229. In my opinion that case is of no assistance on this point. There the tenant committed de-fault in depositing rent for three consecutive months. Similarly, in Sunderlal Dubey Vs. Ram Shanker Soni, Civil Revision No. 170 of 1965, decided on the 31st August 1965, the tenant did not deposit rent for five consecutive months. In both the cases the protection claimed by the tenant under section 12 (3) was refused. In those cases the question was not whether one single default under section 13 (1) was sufficient to forfeit the protection under section 12 (3). In both the cases the protection claimed by the tenant under section 12 (3) was refused. In those cases the question was not whether one single default under section 13 (1) was sufficient to forfeit the protection under section 12 (3). Those cases cannot be read as to lay down the converse proposition, that unless and until there are three consecutive defaults the protection under section 12 (3) survives. 22. At this juncture it has to be mentioned that to meet Shri Jakatdar's defence based on his interpretation of the proviso, it is an argument that section 12 (3) is a surplusage because (a) its substantive provision is repeated in section 13 (5); (b) its proviso is unworkable; and (c) as against section 12 (3), it is section 13 (5) which is the effective provision. Section 13 (5) is in these words:- "If a tenant makes deposit or payment as required by subsection (1) or sub-section (2), no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default In the payment of rent by the tenant, but the Court may allow such cost as it may deem fit to the landlord." The line of argument for labelling the proviso as redundant is this. Recalling that the proviso cannot operate during the pendency of a suit and it relates merely to the period between the dismissal of the first, suit, in which the benefit is given, and the second suit under section 12 (1)(a), it is said that even if there are three consecutive defaults in the intervening period, the landlord cannot avail of them and they become ineffective as soon as the tenant pays all arrears within two months of the fresh notice of demand (which is a pre-requisite for the second suit) and such payment would not allow section 12 (1) (a) to come into operation. Now, the first part of the statement is correct, as already discussed, but, on a little reflection, it will be seen that the second part is mistaken. The fallacy lies in concentrating on one side of the picture, forgetting the other side. It is true that by paying the arrears of rent within two months of the service of the demand notice, the. The fallacy lies in concentrating on one side of the picture, forgetting the other side. It is true that by paying the arrears of rent within two months of the service of the demand notice, the. tenant does not allow the right of eviction under section 12 (1) (a) to accrue notwithstanding three consecutive defaults in the intervening period. But, in case he does not pay, the subsequent suit under section 12(1) (a) will not be defeated by section 12 (3) because of the three consecutive defau1ts. That is the excellant check which the proviso enacts. If during the intervening period, the tenant does not pay for three consecutive months and does not pay within two months of the notice also, then in the subsequent suit a compliance with section 13 alone will not secure to him the dismissal of the suit If you read section 12 (3) without the proviso, even such subsequent suit will be dismissed by virtue of its enacting part. It is abundantly clear that the provisions contained in section 12 (1) (a), 13 (1) and (2), and 12 and 12 (3), together, enact a complete scheme based on an intention (I) to give; as the last and final opportunity, to the tenant for paying all arrears of rent when a suit is instituted against him and go on paying rent regularly for every subsequent month, and (2) to safeguard the landlord from a repetition of that undesirable tendency so that he may not be obliged to go to the Court every lime to recover rent from such a tenant. I regard the proviso as the life and soul of that scheme, far from calling it a surplusage Therefore I do not agree that the proviso is otiose. 23. Doubtless, at the first sight, section 13 (5) gives the impression of section 12 (3) except its proviso. If there is compliance with section 13 (1) and (2) a suit under section 12 (1) (a) has to be dismissed under section 12 (3); conversely, if there is a single default in payment of rent, the tenant loses the protection. The same result will follow under section 13 (5) when read as above. If there is compliance with section 13 (1) and (2) a suit under section 12 (1) (a) has to be dismissed under section 12 (3); conversely, if there is a single default in payment of rent, the tenant loses the protection. The same result will follow under section 13 (5) when read as above. Comparing the two, each comes into play at the time of the termination of the suit but not before, each affords a further protection to the tenant against eviction, excusing all his defaults which he might have committed prior to the institution of the suit; and each has for its requisite, compliance under section 13. Now, firstly, it is a sound presumption that the legislature does not say exactly the samething twice in the same statute. But that is not all. The proviso to section 12 (2) finds no place in section 13 (5), and that gives rise to a direct clash between them in a subsequent suit under section 12 (1) (a), the first having been dismissed with the aid of such protection and the tenant having committed three consecutive defaults in the intervening period. The tenant cannot, by complying with section 13 (1) and (2), secure its dismissal under section 12 (3) on account of the three consecutive defaults in the intervening period, the proviso being the impediment. But the tenant will say, "I may be deprived of the protection under section 12 (3), but dismiss the suit under section 13 (5)". The result will be that the mischief, which the proviso intended to remedy, would not be prevented. In a case such as this it is the duty of the Court to interpret the apparently conflicting provisions in such a way as to harmonise them. (See Raj Krishna Vs. Binod Kanungo and others, AIR 1954 SC 202 . 24. As I read section 13 (5), it admits of another consideration which appeals to me. This sub-section enacts a special provision for allowing costs to the plaintiff when a suit founded on section 12 (1) (a) is dismissed simply because of payment of rent in compliance with section 13 (1) and (2), during the pendency of the suit; and that is the only purpose and effect of section 13 (5). This sub-section enacts a special provision for allowing costs to the plaintiff when a suit founded on section 12 (1) (a) is dismissed simply because of payment of rent in compliance with section 13 (1) and (2), during the pendency of the suit; and that is the only purpose and effect of section 13 (5). In doing so I have to read "although" immediately before "no decree or order shall be made" (and, for the sake of grammatical accuracy, to substitute "yet" for' but"). It is stated in Maxwell (Eleventh Edition) at page 221:- "Where the language of a statute, in .its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.........Nevertheless, the Courts are very reluctant to substitute words in a statute, or to add words to it, and it has been said that they will only do so where there is a repugnancy to good sense." As pointed out above I am of the opinion that this is a case of "repugnancy to good sense" and that section 13 (5) is of doubtful meaning. That being so the words of the statute are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view (See Workmen. D. T. Estate Vs. Management D. T. Estate, AIR 1958 SC 353 (356). By reading "although" before "no decree or order shall be made", not only the provision manifests an intelligible meaning and purpose but also concorrance with section 12(3). Pollock, C. J., said in Attorney General Vs. Sillem, (1864) 2 H. & C. 431, 515, (cited in Craies at page 108) - "In order to know what a statute does mean, it is one important step to know what it does not mean; and if it be quite clear that there is something which it does not mean, then that which is suggested or supposed to be what it does mean must be in harmony and consistent with what it is clear that it does not mean." 25. If the above interpretation of section 13 (5) was not permissible and it could not, because of its proviso, co-exist wit h section 12 (3), I would have unhesitatingly held that, barring that part of section 13 (5) which deals with costs, the rest of it is superfluous and redundant, as its purpose is fully served by the enacting part of section 12 (3). It is no doubt a principle of interpretation of statutes that no part of any enactment should be held superfluous, but, firstly, if section 12 (3) can be called a a surplusage, why not section 13 (5), when the former, along with its proviso, is more consonant with convenience, reason, justice and legal principles? Secondly, where there is a conflict between a specific provision and a general provision, the former prevails over the latter. In Craies Interpretation of Statutes (sixth edition) at page 221, it is observed:- "Whenever there is a particular enactment and general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative and the general must be taken to effect only the other part of the statute to which it may properly apply". This rule is applicable to resolve a conflict between a specific provision and a general provision in different statutes as well as in the same statute (See J. K. Cotton S. & W. Mills Vs. State of U.P., (1961) 3 SCR 185 (194). Thirdly, in Maxwell's Interpretation of Statutes (11th edition) the following rule is stated at page 183:- "In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason justice and legal principles, should. in all cases of doubtful singnificance, be presumed to be the true one." For ascertaining the real intention of the legislature the Court may consider inter alia the nature and the design of the statute and the consequences which would follow from construing it one way or the other. Lord Halsbury in Cook Vs. Vogeler, (1901) AC 102, (107), observed:- “A Court of law has nothing to do with the reasonableness or unreasonableness of a statutory provision, except so for as it may help it in interpreting what the Legislature has said.” 26. Lord Halsbury in Cook Vs. Vogeler, (1901) AC 102, (107), observed:- “A Court of law has nothing to do with the reasonableness or unreasonableness of a statutory provision, except so for as it may help it in interpreting what the Legislature has said.” 26. There was no provision in the M. P. Accommodation Control Act, 1955, (which was repealed and replaced by the present Act of 1961) corresponding to section 12 (3). This is a new protection under the new Act. Patently enough, the legislature intended to give the tenant a further and final protection, that is to say, even if he was a defaulter and even if he did not pay the arrears of rent within two months of the service of a notice of demand, and. the landlord institutes a suit for the enforcement of the right which has ripened under section 12 (1) (a), still, he shall not be evicted if he deposits or pays rent as required by section 13. On a little consideration it will be apparent that section 12 (3) would have created an intolerable hardship to the landlord which can be demonstrated thus. The tenant does not pay rent, not even inspite of notice of demand, and the landlord is obliged to bring a suit. The tenant then complies with section 13 and gets the suit dismissed. Thereafter he repeats the same conduct and does not pay rent until a second suit is instituted; and, when the second suit is instituted, he again deposits rent under section 13 and gets the second suit also dismissed. In this way he could perpetuate this behaviour without any risk what-ever, except payment of costs. Every time the landlord would institute a suit for eviction on the ground under section 12 (1) (a), the tenant would defeat it just by depositing rent. It is here that the proviso steps in and applies a check to this tendency, so that the tenant can obtain that benefit only once; but, once the suit is dismissed with the aid of section 12 (3) and he repeats that behaviour the proviso will come in the tenant's way in the subsequent suit. It is here that the proviso steps in and applies a check to this tendency, so that the tenant can obtain that benefit only once; but, once the suit is dismissed with the aid of section 12 (3) and he repeats that behaviour the proviso will come in the tenant's way in the subsequent suit. In final analysis, therefore, the effect of the proviso is to furnish a guarantee to the landlord that subsequent to the dismissal of his suit once under section 12 (3), the tenant shall go on paying rent at least every three months, or at worst, within two further months, if the landlord is prompt enough in giving notice of demand, otherwise a decree for eviction is guaranteed to him. 27. I must now advert to the second contention of Shri Jakatdar that where the Court does not strike out the defence under section 13 (6), it tantamounts to extension of time for the purposes of section 12 (3) as well. In my judgment, this argument must be rejected. Refusal to strike out defence under section 13 (6) does not revive the lost protection under section 12 (3). A default committed under section 13 entails two consequences which are undoubtedly distinct and independent of coach other. As soon as there is a default, the tenant forfeits the protection which awaited him under section 12 (3). There is no discretion bestowed upon the Court; if section 13 is complied with which means the whole of it the Court cannot refuse to dismiss a suit based on section 12 (1) (a); conversely, if by reason of any default, it cannot be said that there has been compliance with the whole of section 13, the tenant does not earn that benefit which could be given him under section 12 (3). Now, all this has nothing to do with the question whether the Court should or should not order the defence against eviction to be struck out under section 13 (6) because of the said default. There, the Court is clothed with a discretion. There, the object and purposes are quite different. Even if the protection under section 12 (3) is forfeited, the tenant can still pursue his defence in spite of a default if the Court does not strike it out under section 13 (6). There, the Court is clothed with a discretion. There, the object and purposes are quite different. Even if the protection under section 12 (3) is forfeited, the tenant can still pursue his defence in spite of a default if the Court does not strike it out under section 13 (6). The present case is itself a good illustration of what I have said just now. 28. Conclusions reached above may be summed up thus : (1) The provision for striking out the defence under section 13 (6) is in terrorem; it is discretionary, not mandatory. The Court may refuse to strike out the defence by condoning the delay in making payment or deposit required by section 13 (1), This point is directly governed by V. K. Varma Vs. Radhe shyam, AIR 1964 SC 1317 . The discretion must be exercised judiciously. The power to strike out the defence should be sparingly used, as it is an extreme step which should not be taken except in cases of contumacy or positive mala fides. (2) If a default under section 13 (1) escaped unnoticed in the trial Court and the suit was dismissed, a Court of appeal will not exercise the discretionary power under section 13 (6) to strike out the defence. (3) In the implementation of section 12 (3) the Court has no discretion, If the tenant has earned the protection, no decree for eviction under sect inn 12 (1) (a) can be passed. On the other hand, any non-compliance with section 13(1) even a single default will not allow the tenant to acquire the protection which awaited him under section 12(3) It is wrong to think that the said protection survives unless and until there are three consecutive defaults during the pendency of the suit. The proviso to section 12 (3) does not come into play in a pending suit. The "benefit" referred to in the Proviso is no other benefit than the dismissal under the enacting part of section 12 (3), of a suit for eviction under section 12 (1) (a), notwithstanding all its requsites being satisfied, on the sale ground of compliance with section 13; and such benefit is "obtained" at the stage of the termination of the suit, not earlier. (4) The consequence of non-compliance with section 13 in relation to section 12(3) is distinct and independent from the consequence which it may entail under section 13 (6), In the former case, the tenant does not earn the special protection against eviction; in the latter, he runs the risk of the defence against eviction being struck out. Refusal to strike am the defence under section 13 (6) does not revive the lost protection under section 12 (3). (5) The proviso to section 12 (3) is not a surplusage. Far from being otiose, its proviso is the life and soul of the scheme comprising sections 12 (1) (a), 13 (1) and 12 (3). It has a very significant purpose; it prevents from being perpetuated or repealed, the tendency of a tenant to never pay the rent except on the institution of a suit, which would have otherwise been the effect of the substantive part of section 12 (3). (6) Apparently section 13 (5) is substantial repetition of the enacting part of section 12 (3) but in reality it enacts a special provision for awarding costs to the landlord whose suit is dismissed merely by giving the benefit under section 12 (3). It is permissible to read "although" immediately before "no decree or order shall be made" (and, for the sake of grammatical accuracy, to substitute "yet" for "but.".) Undoubtedly, the wording of section 13 (5) is not happy, But, if-it overlaps section 12 (3) to that extent, it is redundant and cannot prevail upon or override section 12 (3). Some of the principles called in aid may be stated thus:- (1) Procedural enactments should be construed liberally and in such manner as to render the enforcement of substantive rights effective and to preserve the valuable right to defend. (2) It is the duty of the Court to give effect to every part of a statute and, as far as possible, to interpret the apparently conflicting provisions in such a way that they harmonise. (3) In case of an irreconcilable conflict between two provisions the one which is more consonant with convenience, reason, justice and legal principles should be upheld. (4) If a general provision comes in direct clash with a specific provision, whether in the same or a different statute, the latter should prevail. 29. (3) In case of an irreconcilable conflict between two provisions the one which is more consonant with convenience, reason, justice and legal principles should be upheld. (4) If a general provision comes in direct clash with a specific provision, whether in the same or a different statute, the latter should prevail. 29. Judged by these tests, the appellants' suit could not be dismissed with the aid of section 12 (3) because section 13 was not fully complied with; there was default in respect of rent for December 1962. Turning to section 13(6) as the delay was only of seven days and as the default escaped unnoticed in the trial Court, and the first appeal Court refused to strike out the defence, there is no good ground for striking out the defence for the first time in this Court. The result will be: (1) that the plaintiffs' suit with regard to ejectment under section 12 (1) (a) must be decided afresh and they will be entitled to a decree for ejectment if the requirements of section 12 (1) (a) are satisfied; and, (2) the defendant will be entitled to resist the suit and the pleas in defence taken by him will remain open. 30. This brings me to the other aspect of the suit. It is to be seen whether a decree for eviction can be passed against the defendant under section 12 (1) (e) of the Act. It was averred in the plaint that Smt. Sahodra Bai, plaintiff-I, required the ground floor as she had had a heart attack so that the first floor which was in her occupation was not suitable. Moreover, the accommodation in their occupation was not sufficient as the family had grown in size after the marriages of the other two plaintiffs. Smt. Sahodrabai died during the pendency of the first appeal. As regards the others, the first appellate Court has recorded a clear finding of fact that the accommodation in their occupation is sufficient to meet their needs, I see no ground for interference in second appeal. 31. It is contended for the appellants that their application for leave to amend the plaint was wrongly rejected and the first appeal Court erred in not taking into account a subsequent event which altered the situation during the pendency of the litigation. 31. It is contended for the appellants that their application for leave to amend the plaint was wrongly rejected and the first appeal Court erred in not taking into account a subsequent event which altered the situation during the pendency of the litigation. In the meanwhile Chitra Kumar plaintiff passed his law examination and started practising as an Advocate and required the suit premises for his office. The first appeal Court dismissed that application because the need which was alleged in the proposed amendment did not exist on the date of the suit and also because by allowing the amendment the whole trial would be opened and that it was open to the plaintiff to institute a new suit on the new cause of action. While it is not correct to say that leave to amend the plaint can never be given so as to introduce a ground for eviction based on a subsequent event. I am of the opinion that, having regard to the facts and circumstances of the present case, I would not disturb the order passed by the first appellate Court on the plaintiffs' application. The amendment would introduce altogether a new set of ideas and the trial will have to be re-opened (See A. K. Gupta and Sons Vs. Damodar Valley, C. A. No. 18 of 1963, decided on the 10th September 1965=1965 SCN 311. Moreover, fresh questions of complexity might arise on which I shall not throw any light here. 32. Therefore, the dismissal of the suit under section 12(1)(e) must, be maintained. This renders unnecessary to go into the contention raised by Shri Jakatdar that the plaintiffs had no right to sue under section 12 (1) (e) for their "own residence" because they are not the "owners" of the suit premises but only beneficiaries under Ex. 1-D2, and this suit was not commenced by the trustees. 33. In the result, the appeal is partly allowed; the judgment and decrees of the Courts below as regards the claim for eviction on the ground of arrears rent under section 12 (1) (a), are set aside and the case shall go back to the trial court for proceeding with that part of the suit according to law and decide it afresh in the light of this judgment. Parties shall bear their own costs in this Court and in the first appeal court. Parties shall bear their own costs in this Court and in the first appeal court. The trial Court shall be free to make an order in its final judgment about costs in that court as it thinks fit The rest of the judgment and decree of the first appellate court are mentioned.