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2003 DIGILAW 105 (JK)

Kuldeep Mattoo v. Hirday Nath Pandita

2003-04-25

S.K.GUPTA

body2003
1. This revision petition has been preferred against an order dated 24th of July 2002, propounded by the Sub-Judge, Jammu in a eviction suit, whereby the defence of the petitioners has been struck off for non-depositing of the month by month rent and arrears of rent, in terms of the provisions of Section 12(4) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. It is not in dispute that an agreement came to be executed between the parties on 14.10.1997. It is also not in dispute that the eviction suit has been initiated by the plaintiff-landlord against the defendants/petitioners on the grounds of defaults in the payment of rent. It was during the pendency of the suit, an application came to be filed by the plaintiff-landlord in the court of Sub-Judge, Jammu under Section 12(4) of the Houses and Shops Rent Control Act, 1966, alleging therein, that the defendants/petitioners be directed to pay the month by month rent and also to liquidate the arrears of rent. While disposing of the said application, the trial court directed the defendants to clear the arrears of out-standing rent within a period of fifteen days from the date of the order, with a further direction to deposit the monthly rent by fifteenth day of the next following month. Since the defendants did not comply with the directions of the court, an application came to be initiated by the plaintiff-landlord seeking indulgence of the Court to struck off the defence of the defendants/petitioners for having not complied with the court direction. The contention of the plaintiff-landlord has found favour with the trial court and the defence of the defendants/petitioners has been struck off on account of the non-compliance of the order of the court. An application was also moved by the defendants/petitioners seeking condonation of delay, for depositing the arrears of rent, which, in fact, has already been deposited about eight, months prior to the filing of the said application, under Section 12(4) of the Houses and Shops Rent Control Act, 1966. As a matter of fact, the trial court allowed the plaintiffs application and struck off the defence of the defendants/petitioners, and dismissed the application of the defendants/petitioners seeking condonation of delay for depositing the arrears of rent, which, in fact, had already been deposited, which became the subject matter of challenge in this revision petition. 2. As a matter of fact, the trial court allowed the plaintiffs application and struck off the defence of the defendants/petitioners, and dismissed the application of the defendants/petitioners seeking condonation of delay for depositing the arrears of rent, which, in fact, had already been deposited, which became the subject matter of challenge in this revision petition. 2. I have heard learned counsel for the respective parties at length and meticulously gone through the order impugned under revision. 3. The short controversy in this revision petition centers around the interpretation of the word `shall occurring in Section 12(4) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 is directory or mandatory and whether in default of payment of monthly rent by the tenant, the striking out of the defence is inevitable. For facility of reference Sub-Section (4) of Section 12 of the Jammu and Kashmir House and Shops Rent Control 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 orders 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 has 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." 4. A plain reading and distinct language implied in the aforesaid provisions would show that the scheme of the Act was formulated to protect the tenant from being evicted in an unreasonable and capricious manner. A plain reading and distinct language implied in the aforesaid provisions would show that the scheme of the Act was formulated to protect the tenant from being evicted in an unreasonable and capricious manner. Therefore, the provisions enabling the courts to strike out defence of a tenant for non-compliance with the directions of the Court in spite of the depositing of the rent by the tenant is to be tested in the light of the intendment of the Legislature, which in fact is reflection of the intention. 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 demands. In case the word `shall is treated as mandatory, the fact would be that even where the default in complying with the directions given by the Court is imperative on account of the serious circumstances beyond the control of the defaulter, yet the Court would not be able to grant any relief or assistance to such a tenant. As a matter of fact, the Court must have power to give relief to the tenant against a drastic consequence, when the default in depositing the rent is found due to inevitable circumstances or when the default is too technical in nature. 5. Mr. C.M. Koul, Adv. appearing on behalf of the respondent vehemently urged that in the default of non-payment of the arrears of rent and further monthly rent in compliance of the Court direction under Section 12(4) of the Jammu and Kashmir Houses and Shops Rent Control Act, the defence of the tenant is to be struck off, being some thing more to be seen. According to Mr. Koul, the use of the word `shall therefore, prima facie indicates that the provision is imperative in character, and once a default is found, the Courts are left with no other option but rendered powerless to grant extension of time for such deposits and drastic consequence are bound to follow. 6. In the back drop of the rival contention, the question arises that whether the use of the word `shall in the expression herein-before extracted, makes the provision imperative or mandatory or the court still retains the discretion to relieve against the default. 6. In the back drop of the rival contention, the question arises that whether the use of the word `shall in the expression herein-before extracted, makes the provision imperative or mandatory or the court still retains the discretion to relieve against the default. In order to ascertain a true import of the statute, the purposes for which the provision was enacted, the beneficent nature of the statute and to protect the harassed tenants, obviously would not take long argument to hold that the expression `shall was used not with a view to make the provision mandatory or imperative, but it was to be directory. It is the meaning and intention of the Legislature which governs the matter, whether a statute is mandatory or directory and these are to be ascertained not only from the phraseology of the provision, but also while considering its nature, its design and the consequences which would follow from one way or the other. 7. A similar provision was considered by the Apex Court is Ganesh Prasad Sah Kesari & Anr. v. Lakshmi Nararan Gupta, AIR 1985 SC 964, and was held as under:- "Ordinarily the use of the word `shall prima facie indicates that the provision is imperative in character. However, by a catena of decision 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 the consequences flowing from its own construction of the word `shall. If the use of the word `shall makes the provision imperative, the inevitable consequence that flows from it is that the court would be powerless to grant any relief even where the justice of the case so demand. If the word `shall is treated as mandatory, the net effect wot be that even where the default in complying with the direction given by the court is technical, fortuitous unintended or on account of circumstances beyond the control of the defaulter, yet the court would not be able to grant any relief or assistance to such a person. Once a default is found to be of a very technical nature in complying with the earlier order, the court must have power to relieve against a drastic consequence all the more so if it is satisfied that there was a formal or technical default in complying with its order. Once a default is found to be of a very technical nature in complying with the earlier order, the court must have power to relieve against a drastic consequence all the more so if it is satisfied that there was a formal or technical default in complying with its order. To illustrate, if the tenant while he was on the way to the court on the 15th day to deposit the rent for the just preceding month as directed by an order under Sec. 11A, met with an accident on the road and could not reach the court before the court hours were over, should he be penalised by his defence that he was on the way to the court to make the necessary deposit, that he had the requisite amount with him, and that he started in time to reach the court within the prescribed court hours and yet by circumstances beyond his control, he met with an accident, would the court be powerless to grant him relief. This illustration would suffice to disclose the intendment of the Legislature that it never used the word `shall to make it so imperative, as to render the court powerless." 8. In view of the support found in the above judgment of the Apex Court, it can be well recognised that the word `shall used in the provision is directory and not mandatory. Apart from that, Section 148 of the Code of Civil Procedure, vests the court at par to extend time for doing a thing which has not been done within the time fixed by the court. In other words where any period is fixed or grated by the court for doing any act allowed by the Code, the court in its discretion, may from time to time extend such period even if period originally fixed may have expired. It is this principle under the Section which confers a discretion on the court. 9. By holding the expression `shall under Section 12(4) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, is to be construed as directory and not mandatory, it only recognizes the power of the court to enlarge the time in all cases for non depositing of rent within the period fixed by the court. 9. By holding the expression `shall under Section 12(4) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, is to be construed as directory and not mandatory, it only recognizes the power of the court to enlarge the time in all cases for non depositing of rent within the period fixed by the court. The exercise of discretion of the court would be subject to, the satisfaction of the court shown by the tenant, which had prevented the tenant from depositing of tent within the time fixed by the court. Before a tenant is relieved of the penal consequences he must satisfy that he was prevented by sufficient cause beyond his control in depositing the rent. In the instance case, on going through the cause shown in the application filed by the defendants/petitioners that father of the defendants/petitioners was suffering from several ailments and was in a serious condition, I am satisfied that the non-compliance of the earlier direction of the court to deposit the arrears of rent and further payment of month by month rent was neither intentional nor deliberate, but an account of the circumstances set out therein. 10. In view of the above discussion, falling to comply with the directions issued by the court for depositing of rent of arrears, does not necessarily visit the tenant with a consequence of his defence being struck off. The court should adopt such a mode and method which would not render the court powerless in a situation in which ends of justice demand relief being granted. The construction adopted by the trial court is such which would defeat the beneficent nature of the provisions. It is not in dispute that the defendants/petitioners had deposited the arrears, and there was some irregularity in making the deposit vis-a-vis after the time fixed by the court, but is not of such a nature as to visit the defendants/petitioners with the consequence of striking off their defence. 11. Consequently, I allow the revision petition and set aside the order impugned dated 24.7.2002, and remit the matter to the trial court to proceed further with the suit from the stage where from the defence of the defendants/petitioners was struck off. Shri K.L. Pandita, learned counsel for the petitioners, however, submits at Bar that written statement to the suit has already been filed. Shri K.L. Pandita, learned counsel for the petitioners, however, submits at Bar that written statement to the suit has already been filed. If this be the situation, the defence would be treated as part of the proceedings and suit shall be proceeded with accordingly. Disposed of as such.