JUDGEMENT
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(1.)KHAZAN Chand and Karam Chand filed a suit in the Court of Munsiff, R.S. Pura for ejectment of Om Parkash, appellant herein from a shop
situate at R.S. Pura on the ground of personal necessity. Their case was
that the shop was leased out to the appellant on a "monthly rent of Rs.
60/ - and the appellant herein had undertaken to vacate the same on their personal necessity. Karam Chand plaintiff -respondent No. 2 herein
required the shop as he wanted to run his own business therein but
despite notice issued, appellant did not vacate the shop even though he
had another shop under his occupation. Appellant resisted the suit
denying the allegations of the plaintiffs and according to him his
necessity was greater than that of the plaintiffs.
Trial Court framed following issues for determination: -
1) Whether the suit shop is required for personal necessity of plaintiff No. 2 ? OPP
2) Whether the plaintiffs need is greater than that of the defendant ? OPP
3) Whether the notice is not in accordance with law ? OPD.
4) Whether the defendant is in possession of another shop ?
5) Relief. During the course of trial Khazan Chand, plaintiff No. 1 died and
his legal representatives were brought on record.
(2.)Plaintiff led evidence and the defendant also led some evidence when plaintiffs moved an application under sec. 12 (4) of the J&K Houses
& Shops Rent Control Act for issuing a direction to the defendant -tenant
to deposit arrears of rent in the Court. Learned Munsiff on December
18 -1981 directed the defendant to deposit Rs. 3240/ - within 15 days from the date of order and further continue; depositing month wise rent in the
court before 15th day of the month rent following @ Rs, 60/ - P.M.,
failing which his defence was likely to be struck out. Defendant
deposited the above -said rent but he made some defaults to depositing
monthly rent and the trial court thus struck out his defence and
ultimately on July 21, 1984 decreed the suit of the plaintiff.
Defendant -appellant aggrieved by this order fifed an appeal which was
heard by learned Addl. District Judge -, Jammu who on May 8 -1985 dismissed
the same. Appellant being dissatisfied with that decision had come up in
second appeal before this Court.
(3.)I have heard the learned counsel for the parties and perused the record before me. The first question raised by Mr. Karanjit Singh,
learned counsel appearing for the appellant is that defence of the
appellant was wrongly struck out by the trial court as he had Deposited
arrears of rent and only failed in depositing monthly rent which period
could have been easily contended in view of the decisions of this Court
and the Supreme Court reported as AIR 1987; J&K 89, AIR 1985 S.C. 964 &
AIR 1987 S.C. 1010. Mr. S.C. Subhash, learned counsel for the respondent,
on the other hand, has contended that the direction of the trial court
for depositing monthly rent was violated by the appellant and he neither
explained the circumstances nor made any application for extension of
time and under such circumstance trial court was justified in striking
out his defence. He, in support of his contention, has referred to AIR
1988 S.C. 602. I have considered these contentions raised by either side. 4. The basic authority on this point is AIR 1985 S. C. Supra in which their lordships have held that the word SHALL used in Sec. 11 -4 of
Bihar Buildings (lease, rent and eviction) Control Act is to be directory
and not mandatory. In our State Sec. 12 (4) of the J&K Houses and Shops
Rent Control Act, (for short Act hereinafter) provides to the landlord to
apply for issuing a direction to the tenant at any stage of the suit to
deposit monthly rent at a rate at which it was last paid, and also
arrears of rent, if any, and powers have been conferred on the Court to
strike out the defence of the tenant on his failure to deposit arrears of
rent within 15 days of the days of order or in case rent was not
deposited by 15th day of the next following month. The word used in this
provision of law is also SHALL and in so many cases this word has been
held to be mandatory, with the above said decision of Supreme Court
position has completely changed and in AIR. 1987 J&K Supra full Beach of
this Court has held this word SHALL to be directory and not mandatory. In
a subsequent case M/S B.B. Khemka Pvt. Ltd Versus Virinder Kumar Bhowmic
and another, AIR 1987 S.C. 1010 the words shall order the defence against
delivery of possession to be struck out," occurring in Sec 17(3) of West
Bengal Premises Tenancy Act have been held to be construed as a directory
provisions and not a mandatory provision. The principal laid down by
their lordships of the Supreme Court in this regard is as under: -
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
that 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 demands. 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 a very
technical nature in complying with the earlier order, the court must have
power to relieve against drastic consequences 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 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 hours were over, should he be penalised by
his defence being struck off. Even if the court is satisfied 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.
The full Bench of this court in AIR 1987 J&K Supra has taken the
view in the following manner: -
By holding that the expression shall under sec. 12(4) of the
Houses & Shops Rent Control Act is directory and not mandatory, it is not
to be construed that the court is bound to extend time in favour of all
kinds of tenants in the matter of deposit of rent, without assuming
satisfaction about the cause which prevented them from depositing tent
within the time fixed. The tenant has to satisfy that he was prevented
from depositing rent for the reasons beyond his control and in that case
court may remove the rigour of penal consequences in favour of the
tenant. Otherwise it is competent for the court to impose penalty on the
tenant who has want only, intentionally or deliberately failed to comply
with the order of the court. Directory orders passed by the court are
binding on the parties who are before the court. Without sufficient cause
being shown directory orders cannot be violated by a tenant, what is
sufficient cause that may be advanced by a tenant upon facts and
circumstances of each and every case. The court, while extending time for
deposit of rent beyond the period prescribed by the statute is to be
guided by well recognised principles which empower she court to use
discretion is judicial proceedings."
Their lordships of the Supreme court in AIR 1988 S.C. 602 have
held that a duty is cast on the court to strike out defence, if there is
failure of the tenant to deposit arrears of rent within 15 days and their
lordships refused to interfere with the order of the trial court as well
as High Court which have found the tenant to have delayed to pay arrears
of rent within 15 days and further declined to condone delay of four or
five days in depositing rent.
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