TMI Blog1985 (4) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... nant committed default in payment of rent for the period May, 1969 to December, 1971. The defendant contested the suit interalia contending that he was not in default. There followed an application by the respondent-landlord for a direction under Sec. 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 ('Act' for short). Section 11A reads as under: 11A. Deposit of rent by tenants in suits for ejectment- If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment the landlord may make an application at any stage of the suit for order on the tenant 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 par- ties to be heard, may make an order for deposit of rent at such rate as may be determined 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Civil Revision No. 585 of 1976.A Division Bench of the High Court heard and disposed of the revision petition on August 11, 1977. The learned Judges of the High Court made the rule absolute and set aside the order of the learned trial Judge refusing to strike off the defence of the appellant and directed the learned Judge to note that the defence of the appellant will be deemed to have been struck off due to non-compliance of the order dated April 26, 1973. Hence this appeal by special leave which is being heard after seven years. Section 11A, to some extent, can be styled as a check on the tendency of the defendent to protract the litigation by frivolous defences more especially where the duty to pay the rent is unmistakably admitted. In a suit for eviction, Sec. 11A enables the court to give a direction to pay rent which is claimed to be in arrears as also to compell the defendent who continues to remain in possession during the pendency of the proceedings to perform his obligation to deposit the rent regularly. It also enables the court to deter mine the rate of rent at which the deposit shall be made, wherein a case there is a dispute as to the rate of rent. It is an unden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not defended the claim to ejectment. Interpreting this expression 'shall' as mandatory in the afore-mentioned clause, the High Court was of the opinion that as there was default in making the deposit for the month herein before mentioned which would show non-compliance with the order dated July 26, 1973 passed under Sec. 11A and therefore 'the tenant will have to bear consequences thereto ' The High Court further observed that 'once a default is found, the courts are powerless; the statutory consequences are bound to follow.' In the back-drop of the rival contentions, the neat question that arises is: 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 Ordinarily the use of the word 'shall' prima facie indicates that the provision is imperative in character. However, by a catena of decisions, 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 intenedment of the legislature and the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision mandatory or imperative. Obviously if one ascertains the intendment of the legislature, the purpose for which the provision was enacted, the beneficient nature of the statute and to protect the harassed tenant obviously it does not require long argument to hold that the expression 'shall' was used not with a view to making the provision mandatory or imperative but it was to be directory. Such a construction would advance the purpose for which the Act was enacted namely the protection of tenants. It will also not render the court powerless in the face of harsh facts where striking off the defence would be nothing short of miscarriage of justice. Mrs. Gyan Sudha Misra, learned counsel however contended that where the expression 'may' and 'shall' both are used in the same provision the legislative intendment is unmistakable that the provision where the word 'shall' is used must be held to be mandatory because the previous use of the expression 'may' shows that the legislature was conscious, which part of the provision is to be directly and which other part to be mandatory. She relied upon a statement in Maxwell on the Interpretation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his court on a provision imparimateria in a similar statute. In Shyamcharan Sharma v. Dharamdas(2) a question that arose before this Court was whether the construction put by the High Court on Sec. 13 (1) read with Sec. 13 (6) of the Madhya Pradesh Accommodation Control Act, 1961 accords with the intendment of the Legislature. The relevant provision provides that on an application, a tenant can be directed by the Court to pay to the landlord an amount calculated at the rate of the rent at which it was paid for the period for which a tenant may have made a 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 of tenth of each succeeding month, the sum equivalent to the rent. It was contended that the provision i i mandatory so that the court has to power to extend the time initially liked by it for making the deposit.A submission before the court was that the expression used in sub-sec. (1) discloses the legislative intent and the use of the word 'may' in sub- sec. (6) would not make the provision directory. The Court, speaking th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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