TMI Blog2008 (2) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... olition of Zamindari. The suit was decreed on 17.1.1972. The trial court granted relief of permanent injunction in respect of suit property as described in the Schedule and also declared that plaintiff no.1 is the owner of the said plot. The decree was challenged by way of appeal by the appellants. During the pendency of the appeal, an application to amend the written statement was allowed by the Appellate Court. Thereafter certain additional issues were framed. The Appellate Court was of the view since the written statement had been amended during the pendency of the appeal, the matter should be remanded to the trial court for fresh decision. Challenging the order passed, an appeal was filed by respondent no.1 before the High Court. Stand of the plaintiff no.1 before the High Court was that the Appellate Court committed an illegality in remanding the matter for fresh consideration. It was submitted that the Appellate Court could have exercised its discretion under Order XLI Rule 25 of the Code of Civil Procedure, 1908 (in short 'the Code') and it could have recorded evidence itself. It was the opinion that the same was necessary for disposal of the appeal. 4. Stand of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision. A point of fact is not to be decided in second appeal where only a substantial question of law is to be looked into. There is some amount of controversy as to whether the provisions are mandatory, notwithstanding the fact that the word 'may' has been used. The First Appellate Court is the last Court of facts. 9 Under Order XLI Rule 25, if it appears to the Appellate Court that any fact essential for the decision in the suit was to be determined, it could frame an issue on the point and refer the same for trial, to the Court from whose decree the appeal is preferred and in such case, shall direct such court to take additional evidence required. The order of remand should not be passed as a matter of routine. The First Appellate Court which has the power to analyse the factual position can decide the issue and the additional issues. In the instant case the First Appellate Court, inter alia, observed as follows: As such, it would not be proper for the first Appellate Court in such matter to itself record the evidence and to give its findings in regard to newly created issues. The Hon'ble High Court has also held that in the present matter under the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired, then the lower court has to return the evidence so recorded to the appellate court together with the findings thereon and the reasons therefor. Requirement for recording the finding of facts and the reasons disclosed from the facts is because the appellate court at the first instance has come to the conclusion that the lower court has omitted to frame or try any issue or to determine any question of fact material for the right decision of the suit on merits. It has to be noted that where a finding is called for on the basis of certain issues framed by the appellate court, the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of the first instance. This position was highlighted in Gogula Gurumurthy and Others v. Kurimeti Ayyappa (1975(4) SCC 458), where it was inter-alia observed in para 5 as follows: We consider that when a finding is called for on the basis of certain issues framed by the appellate Court the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vations: The words 'it shall be lawful' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. 17. Explaining the doctrine of power coupled with duty, de Smith, ('Judicial Review of Administrative Action', 1995; pp.300-01) states: Sometimes the question before a court is whether words which apparently confer a discretion are instead to be interpreted as imposing duty. Such words as 'may' and 'it shall be lawful' are prima facie to be construed as permissive, not imperative. Exceptionally, however, they may be construed as imposing a duty to act, and even a duty to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Places of Public Amusement in Bombay City, 1884 read as under: The Commissioner shall have power in his absolute discretion at any time to cancel or suspend any licence granted under these Rules. 23. It was contended that there was no specific legal duty compelling the Commissioner to exercise the discretion. Rule 250 merely vested discretion in him but it did not require him to exercise the power. Relying upon the observations of Earl Cairns, L.C., the Court observed: The discretion vested in the Commissioner of Police under Rule 250 has been conferred upon him for public reasons involving the convenience, safety, morality and the welfare of the public at large. An enabling power of his kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor can it be evaded.... (emphasis supplied) 24. In Ratlam Municipality v. Vardichan (1980 (4) SCC 162), some residents of Ratlam Municipality moved the Sub- Divisional Magistrate under Section 133 of the Code of Criminal Procedure, 1973 for abatement of nuisance by directing the mun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvalid. On the other hand, it is not always correct to say that when the word `may' has been used, the statute is only permissible or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. 29. Words are the skin of the language. The language is the medium of expressing the intention and the object that particular provision or the Act seeks to achieve. Therefore, it is necessary to ascertain the intention. The word `shall' is not always decisive. Regard must be had to the context, subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the court to try to get at the real intention of the legislature by carefully analysing the whole scope of the statute or section or a phrase under consideration. The word `shall', though prima facie gives impression of being of mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' as a matter of pure conventional courtesy and yet intend a mandatory force. In order, therefore, to interpret the legal import of the word `may', the court has to consider various factors, namely, the object and the scheme of the Act, the context and the background against which the words have been used, the purpose and the advantages sought to be achieved by the use of this word, and the like. It is equally well-settled that where the word `may' involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word `may' should be interpreted to convey a mandatory force. As a general rule, the word `may' is permissive and operative to confer discretion and especially so, where it is used in juxtaposition to the word 'shall', which ordinarily is imperative as it imposes a duty. Cases however, are not wanting where the words `may' `shall', and `must' are used interchangeably. In order to find out whether these word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be secured by the statute which is of prime importance, as also the actual words employed. 34. Obviously where the legislature uses two words may and shall in two different parts of the same provision prima facie it would appear that the legislature manifested its intent on to make one part directory and another mandatory. But that by itself is not decisive. The power of court to find out whether the provision is directory or mandatory remains unimpaired. 35. One additional factor, which may not have an effect on the appeal is to be noted. The First Appellate Court after judgment of the High Court dated 4.2.2005 disposed of the appeal and remitted the matter to the trial Court. The stay order of this Court was passed on 7.2.2005. 36. It is to be noted that the High Court in the impugned judgment has noted that if the Appellate Court is of the opinion that if the evidence is insufficient to decide the issue, only then the matter may be remitted to the trial Court. 37. Above being the position, the appeal by the respondents before the Allahabad High Court has been rightly allowed. In any event, the order does not suffer from any infirmity to warrant interference. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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