S. S. BYAS, J - (1.) THIS Civil Special Appeal under section 18 of the Rajas-than High Court Ordinance, 1949 is directed against an order of the learned Single Judge of this Court dated January 30. 1986, by which the appellant's (tenants) appeal was dismissed and the order of the learned Additional District Judge (2), Ganganagar, striking out his defence against eviction, was maintained.
(2.) VERY few facts needs narration for the disposal of this appeal. Briefly recapitulated, the relevant facts are that the respondent Vijay Kumar (hereinafter referred to as the landlord') instituted a suit against the defendant appellant (hereinafter referred to as 'the tenant') for his eviction from the demised property. The eviction was sought on a number of grounds and one of them is that the tenant has neither paid nor tendered the amount of rent due from him for a period of more than six months. He is, therefore, a defaulter within the meaning of Sec. 13 (1) (a) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short Act' ). The suit was opposed by the tenant. The tenancy was admitted, but the grounds on which the eviction was sought, were refuted, Since one of the grounds for the tenant's eviction was that under sec. 13 (1) (a) of the Act, the trial Court, viz. , the Additional District Judge (2), Ganganagar proceeded under sub-section (3) and by his order dated July 30, 1985 provisionally determined the amount of Rs. 33, 105. 83 as rent etc. to be paid to the landlord by the tenant within fifteen days. The aforesaid amount was not paid within fifteen day i. e. upto August 14,1985. The defendant submitted an application under sub-sec. (4) of Sec. 13 of the Act for extension of time to make the payment of the aforesaid amount. The trial Court, by its order dated September 2, 1985 granted two months' time to the tenant to make the payment. The amount was, thus, to be paid on or before October 14, 1985. The tenant still then made no payment. On November 25, 1985 the tenant, again, moved an application and prayed for extension of time to enable him to make the payment of the aforesaid amount of Rs. 33105. 83. The application was opposed tooth and nail by the landlord and it was prayed that since the tenant had failed to deposit or pay the amount of rent determined under sec. (3) his defence against eviction should be struck out. The learned Additional District Judge heard both the parties. He, by his order dated December 9, 1985, dismissed the tenant's application for extension of time. He took the view that time for payment of the amount of rent provisionally determined under section 13 (3) of the Act cannot be extended beyond three months in view of the express provisions in sub-section (4 ). Since the three months' time commencing from August 14, 1985 ended on November 14. 1985, no extension of time was possible. By his same order he struck out the tenant's defence against eviction. The tenant came in appeal to this Court. The learned Single Judge held that since the tenant had failed to pay or deposit the amount of rent provisionally determined within the maxmium period prescribed under section 13 (4 ). his defence against eviction was rightly struck out by the Court below. Aggrieved, the tenant has come - up in special appeal. We have heard the learned counsel for the parties at length. In assailing the impugned order, it was contended by Mr. Calla the learned counsel for the appellant-that the word "occurring in the expression" the Court shall order the defence against eviction to be struck out" in section 13 (5) of the Act should be construed as "may" giving a discretion to the trial Court to strike or not to strike out the defence against eviction, It was argued that if the tenant can show sufficient and convincing reasons for his not making the payment or depositing the amount of rent provisionally determined under section 13 (3), the defence against eviction should not be struck out despite the use of the word 'shall" in the aforesaid expression. It was argued that the Act is a piece of beneficial legislation for the protection of the tenants against the whim and highhandedness of the landlords. In a suitable case where it appears that the tenant was prevented from making the payment or depositing the amount of rent due to the cause beyond his control, he should be granted an indulgence. It was argued that in such a suitable case, the word 'shall" in the aforesaid expression be read as "may". Reliance in support of the contention was placed on Ganesh prasad Sah Kewri vs. Laxmi Narain Gupta (1), Mr. Arora learned counsel for the landlord contended, on the other hand, that the provisions of sub-section (5) of section 13 of the Act are mandatory. Once the tenant fails to pay the amount provisionally determined under section 13 (3) within 15 days or within the extended time which cannot be more than three months, he is liable to the penal consequences mentioned in sub-section (5) of section 13 and his defence must, therefore, be struck out. It was argued that the Court has no powers to extend the time for more than three months under section 13 (4) of the Act. It was argued that Ganesh Prasad case (supra) relates to Bihar Buildings Act. language employed in section 11-A of the Bihar-Buildings Act is materially different from that of sub-sections (4) and (5) of section 13 of our Act. It was argued that sub-section (4) of section 13 of the Act lays down that in a suitable case, the Court can extend the period for payment of rent by three months. No such provision exists in the Bihar Buildings Act. It was in these circumstances that the word "shall" occurring in section 11-A of the Bihar Buildings Act was construed as 'may" by their Lordships of the Supreme Court in Ganesh Prasad's case (supra.) We have bestowed our thoughtful consideration to the respective submissions. Sub-section (3) of section 13 of the Act casts a duty on the Court to provisionally determine the amount of rent in a suit for eviction on the ground set-forth in Clause (a) of sub-section (1) with or without any other grounds. Sub-section (4) enjoins upon a tenant to pay to the landlord or deposit in the Court the amount so determined under sub-section (3) within fifteen days from the date of determination or within such further time not exceeding three months as may be extended by the Court. Sub-section (5) lays down that if the tenant fails to deposit or pay the amount referred to in sub-section (4) on the date or within the time specified therein, his defence against eviction shall be struck out. Since the contentions of the parties rotate around sub-section (4) and (5), it would be useful to read them :- Sub-section. (4) " The tenant shall deposit in Court or pay to the landlord the amount determined by the Court under sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the Court. The tenant shall also continue to deposit in Court or pay to the landlord month by month the monthly rent subsequent to the period upto which determination has been made, by the fifteenth of each succeeding month or within such further time, not exceeding fifteen days, as may be extended by the Court, at the monthly rate at which the rent was determined by the Court under sub-section (3 ). " Sub-section (5) "if a tenant fails to deposit or pay any amount referred to in sub-section (4) on the date or within the time specified therein, the Court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. " In Ganesh Prassed's case (supra), the provisions of section 11-A of the Bihar Buildings Act came for judicial scrutiny. Section 11-A of the Bihar Buildings Act reads as under:- 11-A "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 parties 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 and the tenant to be placed in the same position as if he had 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. The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant. " A bare reading of sub-sections (4) and (5) of section 13 of our Act and Section 11-A of the Bihar Buildings Act makes it amply clear that though some of their provisions are parallel, there is one sharp and marked distinction between them. Sub-section (4) of section 13 of the Act as well as section 11-A of the Bihar Buildings Act permits a tenant to deposit arrears of amount determined by the Court within 15 days from the date of such a determination and to pay the monthly rent by the 15th of each succeeding month. So far this is concerned, the provisions in both the Act are similar and parallel. However, sub-section (4) of section 13 of the Act permits a tenant to seek time not exceeding three months for the payment of arrears of amount determined by the Court under sub-section (3) and so also to such further time not exceeding 15 days for the payment of monthly rent. Section 11-A of the Bihar Buildings Act does not contain such a provision for extension of time by three months or fifteen days in respect of the arrears of amount determined by the Court or the monthly rent.
(3.) THEIR Lordships of the Supreme Court were faced with a situation in which the tenant had failed to pay the monthly rent. The trial Court as well as the High Court of Patna took the view that since there was no provision for extension of time under section 11-A of the Act, the delay in payment of monthly rent by the tenant cannot be condoned. THEIR Lordships of he Supreme Court, in these circumstances, held that the word 'shall' should be read as merely permissive and not imperative. We are lured to reproduce the following observations made by their Lordships in the case of Ganesh Prasad :- "obviously if one ascertains the intendment of the legislature, the purpose for which the provision was enacted, the beneficent 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. " The position is entirely different in our Act. The legislature was quite conscious that at times the tenant may not be able to pay the amount of arrears of rent determined by the Court under sub-section (3) within fifteen days from the date of the determination and may also not be able to pay the monthly rent by the 15th day of each succeeding month for one reason or the other. In order to meet such an eventuality and to relieve the defendant from the hardship, the legislature inserted the provision for extension of time not exceeding three months in respect of the payment of arrears of rent determined by the Court under sub-sec. (3) of the Act and for the extension of time not exceeding fifteen days for the payment of the monthly rent. The legislature has already taken note of the hardship likely to be caused to the tenant on account of his bonafide mistake etc. The defence of a tenant is to be struck out under sub-section (5) of section 13 of the Act only when he fails to pay the arrears of amount within the extended period of threee months or within the extended period of fifteen days, as the case may be. In view of this provision for extension of time inserted in sub-section (4), we are of the opinion that the word 'shall' occurring in subsection (5) should be held as imperative, mandatory and of compulsory force and not as merely directory or permissive. It is true that the question as to whether a statute is mandatory or directory, depends upon the intent of the legislature and not upon the language on which the intent is couched. For the purpose of finding out the intent of the legislature the words 'may' and 'shall' have been treated at times as interchangeable. The use of word 'shall' does not always mean that the enactment is obligatory or mandatory. It depends upon the context in which the word 'shall' occurs and the other circumstances. As discussed above, the legislature while enacting our State Act was fully conscious of the hardships of the tenant and it is why provision for extension of time by three months and fifteen days was inserted in sub-section (4) of section 13. If the tenant still does not pay the arrears of amount and the monthly rent within the time extended, he incurs the disability envisaged in sub-section (5) of the Act, and his eviction must then be struck out. There is no escape for the defaulting tenant from rigors of sub-section (5) of the Act if he fails to deposit the arrears of rent or the monthly rent within the extended time. The observations made by their lordships in Ganesh Prasad's case have, therefore, no bearing so far the provisions of sub-sections (4) and (5) of sec. 13 of the Act are concerned. The observations made in Ganesh Prasad's case relate only to the provisions of section ll-A of the Bihar Buildings Act. Had there been a parallel provision in the Bihar Buildings Act similar to that in sub-sec. (4) of section 13 of our Act, the position then might have been different. ;