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2004 DIGILAW 320 (JK)

Chaman Lal v. Sarda Devi

2004-11-22

S.K.GUPTA

body2004
Through the currency of this revision petition, petitioners seek reversal of order dated 10.3.2004 propounded by Sub Judge (Chief Judicial Magistrate), Udhampur, in eviction suit titled Sharda Devi & Ors V. Krishan Lal and Ors., whereby the defence of the petitioners defendants has been struck off for non compliance of order 1.10.2001, passed in application under section 12 (4) of J&K Houses and Shops Rent Control Act, 1966. 2. Facts relevant for disposal of this revision, in brief, may be noticed. A suit for eviction came to be filed by the plaintiffs respondents, against the petitioners-defendants on twin grounds; firstly, for alleged default committed in payment of rent and, secondly, on the ground of personal necessity of the landlord plaintiff No.1, for the business of her son. On filing of the written statement by the petitioners-defendants, the trial court framed issues, calling upon the plaintiffs to lead evidence in support of the issues, the burden of which was upon them to discharge. It was during the recording of evidence of the plaintiffs when an application came to be filed by the landlord, seeking direction to the petitioners-tenants to pay month to month rent as also to liquidate the arrears of rent. The trial Court allowed the application vide order dated 1.10.2001 and directed the petitioners herein to deposit the arrears of rent amounting to Rs. 17,200/- within fifteen days from the date of order with a further direction to deposit the monthly rent of Rs. 400/- by 15th of next following month. The petitioners-defendants, however, deposited the arrears of the rent and also future rent for some time but thereafter defaulted in the payment of monthly rent, effective from January, 2003, which led to filing of application by the plaintiffs, seeking indulgence of the trial court to strike off the defence of the petitioners-defendants for not having complied with the trial court order dated 1.10.2001. This application of the respondents-plaintiffs has been allowed and the defence of the petitioners-defendants has been struck off vide order dated 10.3.2004, correctness of which has been impugned in this revision petition. 3. I have heard the learned counsel for the respective parties in extenso and also gone through the order impugned carefully. This application of the respondents-plaintiffs has been allowed and the defence of the petitioners-defendants has been struck off vide order dated 10.3.2004, correctness of which has been impugned in this revision petition. 3. I have heard the learned counsel for the respective parties in extenso and also gone through the order impugned carefully. The main plank of petitioners contention revolves round a narrow compass and pertains to the interpretation of word "shall" placed in Section 12(4) of the J&K Houses and Shops Rent Control Act, 1966 (for short `the Act hereafter). The sole controversy raised in this revision petition is whether the provisions of Section 12(4) of the Act are directory or mandatory and whether in default of payment of monthly rent, striking off of defence is imperative. It is advantageous to reproduce sub section (4) of Section 12 of the Act, which reads as under: -- "(4): If the tenant contests the suit, as regard 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 which it was last paid and also the arrears of rent, if any, of 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 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 of the language implied in the aforesaid provisions would make it manifest that the scheme of the Act was formulated to protect the tenant from being evicted in an unreasonable and capricious manner. If the word `shall used in the aforesaid provision is treated as mandatory, the consequences following there from would be that the Court would be powerless to grant any relief even where the justice demands. If the word `shall used in the aforesaid provision is treated as mandatory, the consequences following there from would be that the Court would be powerless to grant any relief even where the justice demands. In other words, if the word `shall is treated 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 the relief to such a tenant. 5. Mr. M. P. Sharma, learned counsel appearing for the respondents, vehemently urged that use of the word `shall in section 12(4) of the Act, prima facie, indicates that the provision is mandatory and once the default is committed in deposit of arrears of rent and payment of monthly rent within the period specified therein, the court is left with no option but rendered powerless to grant extension of time for such deposit and drastic consequences are bound to follow. 6. Identical issue came to be raised in case titled Kuldeep Mattoo and Anr. v. Hirday Nath Pandita, reported as 2003 (3) JKJ, 255(HC), and this court, while considering the provisions of section 12(4) of the Act, held as under: -- "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. Similar view was also taken by the Apex Court in case titled, Ganesh Prasad Sah Kesari and Anr. Similar view was also taken by the Apex Court in case titled, Ganesh Prasad Sah Kesari and Anr. v. Lakshmi Nararan Gupta, AIR 1985 SC, 964 and it was observed as under: -- "Ordinarily the use of 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 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 so demand. If the word `shall is treated as mandatory, the net effect would be that even where the default in complying with the direction given by the court is technical, fortuitous unintended or on account of circumstances beyond the control of the defaulter, yet the court would not be able to grant any relief or assistance to such a person. Once a default is found to be of 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 way to the court on the 15th day to deposit the rent for the just preceding month as directed by an order under Sec. 11 A, met with an accident on the road and could not reach the court before the court hours were over, should he be penalized 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. 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. The petitioners in their objections to the application for striking out the defence filed by the respondents-plaintiffs have taken a specific plea that wife of petitioner No.1, Chaman Lal, was seriously ill as she was pregnant and delivery was due in the month of December, 2002, however, delivery was not normal and his wife had to undergo major surgery which further gave rise to post operational complicacies and petitioner No. 1 had to stay with his wife and took her to Jammu for specialized treatment. Whereas petitioner No.2, father of petitioner No. 1, being an old person, could not contact the counsel engaged by the petitioners in the case. It was further contended that even after the delivery of the child, the wife of petitioner No. 1 remained bed ridden for many months and there being no other person to look after her, petitioner No. 1 had to remain with her which, in fact, prevented the petitioners to comply with the court order of depositing the rent in the court. The petitioners have further submitted in their objections to the application that arrears of rent amounting to Rs. 4800/- were deposited on 3.12.2003. 9. The question which requires consideration in this case is as to whether the default in complying with the court order to deposit monthly rent was on account of the circumstances beyond the control of the defaulters or was intentional and deliberate so as to entail the penal consequences of striking out the defence. 10. It may further be pointed out that the expression `shall under Sec. 12(4) of the Act 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. However, the exercise of such discretion would depend upon the satisfaction of the court on the cause shown by the tenant, which had prevented him from depositing the rent within the time fixed by the court. The tenant must satisfy the court that he was prevented by sufficient cause beyond his control, in depositing the rent before he is relieved of the penal consequences. 11. The tenant must satisfy the court that he was prevented by sufficient cause beyond his control, in depositing the rent before he is relieved of the penal consequences. 11. In the instant case, on going through the cause shown in the objections filed by the petitioners that wife of petitioner No.1 was pregnant and the delivery of child was not normal as such led to major surgery and thereafter she suffered from Jaundice and was taken to Jammu for treatment, the failure to deposit the rent was neither intentional nor deliberate but because of the circumstances indicated therein. The trial court was not justified in ignoring the explanation which manifestly appears to be convincing, cogent, bonafide and sustainable with regard to the default in deposit of arrears of rent and further payment of monthly rent. 12. The court is also vested with the discretion under Section 148 of the Code of Civil Procedure for extending time for doing a thing which has not been done within the time fixed by the court. Where any time is granted by any court for doing an act, allowed by the Code, the court in its discretion, may from time to time extend such period if period originally fixed may have expired. The contention raised by Mr. M.P. Sharma that once default is found in the deposit of the rent, drastic action is bound to follow, cannot be accepted. The judgments referred do not apply to the facts of the case being clearly distinguishable. The construction adopted by the trial court is such which would defeat the beneficent nature of the provisions. The petitioners have deposited the arrears of rent, however, with some irregularity, in making such deposit but such irregularities cannot be said to be of such a serious nature as to visit them with striking off the defence as a consequence. 13. In the facts and circumstances of the case discussed above, I allow this revision petition and set aside the order dated 10.3.2004 and remand the matter to the trial court with a direction to proceed further with the suit from the stage where from the defence of the petitioners-defendants was struck off. 14. Record be remitted back forthwith to the court below where the parties through their respective counsel shall cause appearance on 3rd December, 2004. No costs.