Rajasthan High Court - Jaipur
Subrati vs Bhagwati Prasad on 23 October, 1989
Equivalent citations: AIR1991RAJ59, 1990(1)WLN558
JUDGMENT Israni, J.
1. This Civil Revision under Section 115, C.P.C. has been filed against the order dated 31st October, 1986, passed by learned Additional Civil Judge No. 2, Bharatpur, in Civil Appeal No. 61/1986, Subrati v. Bhag-wati Prasad, confirming the order dated 8th January, 1985, passed by learned Munsif, Bharatpur, in Suit No. 169/1978, Bhagwati Prasad v. Subrati, by which the provisional rent was determined under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, (hereinafter referred to as the Act.)
2. During the course of hearing the learned single Judge came across conflicting single Bench decisions of the this Court on the point and, therefore, referred the following point for determination by a larger Bench.:--
"Whether the provisions of Section 13(3) of the Act, 1950, are mandatory in the sense that they exclude the power of the Court to determine the provisional rent thereunder after the expiry of the period of three months from the filing of the written statement and the framing of the issues in the suit."
3. It will suffice to state for the purposes of this reference that plaintiff-opposite party filed a suit on 5th July, 1978, against the defendant petitioner in the Court of Munsiff, Bharatpur, for declaration of his title over the suit property and recovery of rent and ejectment on the basis of defaults. The defendant-petitioner contested the suit and claimed to be owner of the suit property and denied to be either tenant or a defaulter. Issues were framed by the trial Court on 11th July, 1980. The trial Court after period of 5 1/2 years of framing of the issues determined on 8th January, 1985, the provisional rent under Sub-section (3) of Section 13 of the Act of 1950, despite objections raised by the petitioer.
The defendant-petitioner filed an appeal against the aforesaid order passed by the trial Court but the same was rejected by the learned Additional Civil Judge, Bharatpur, (Court No. 2) vide its order dated 31st October, 1986.
3A, It is contended by Shri B. L. Mandhana, learned counsel for the petitioner-defendant that a bare reading of Sub-section (3) of Section 13, clearly shows that when a suit for eviction on the ground set forth in Cl. (a) of Sub-section (1) with or without any of the other grounds referred to in that sub-section is filed the Court shall, on the first date of hearing or any other date as the Court may fix in this behalf, which shall not be more than three months after filing of the written statement and shall be before the framing of the issues, may provisionally determine the amount of rent to be deposited in Court or paid to the landlord by the tenant. It is pointed out that in this case in spite of objections raised by the petitioner-defendant, the rent was determined after long delay of 5 1/2 years after the framing of the issues. It is contended that the trial Court could provisionally determine the rent before expiry of three months after the filing of written statement and in any case before the framing of the issue but in no case, the Court can determine the amount of provisional rent after the issues have been framed. It is further contended that the time provided in Sub-section (3) is mandatory and the Court had no power to extend the same and determine the amount of provisional-rent even after expiry of 5 1/2 years after the issues were framed in the suit. It is, therefore, pointed out that such determination of provisional rent is no determination of provisional rent in eye of law and should be ignored as of no consequence.
4. Shri P. K. Sharma, learned counselfor plaintiff-respondent, on the other hand contends that time provided in Sub-section (3) of Section 13 is only directory and, therefore, the Court has rightly framed the amount of provisional rent even after the expiry of the time provided in the above mentioned subsection.
5. Before we proceed further to discuss the matter it will be convenient to extract Sub-sections (3), (4), (5), (6), (7) and (8) of Section 13 of the Act, 1950.
(3) In a suit for eviction on the ground set-forth in Cl. (a) of Sub-section (1) with or without any of the other grounds referred to in that sub-section, the Court shall, on the first date of hearing or any other date as the Court may fix in this behalf which shall not be more than three months after filing of the written statement and shall be before the framing of the issues, after hearing the parties and on the basis of material on record provisionally determine the amount of rent to be deposited in Court or paid to the landlord by the tenant. Such amount shall be calculated at the rate of rent at which it was last paid or was payable for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which such determination is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable upto the date of determination.
Provided that while determining the amount under this sub-section, the. Court shall not take into account the amount of rent which was barred by limitation on the date of the filing of the suit.
(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 fifteeen 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).
(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.
(6) If a tenant makes deposit or payment as required by Sub-section (4) no decree for eviction on the ground specified in Cl. (a) of Sub-section (1) shall be passed by the Court against him;
Provided that a tenant shall not be entitled to any relief under this sub-section, if having obtained such benefit or benefits under Section 13-A in respect of any such accommodation if he again makes a default in the payment of Rent of that accommodation for six months.
(7) If in any suit referred to in Sub-section (3), there is any dispute as to the amount of rent payable by the tenant, the court shall decide the dispute finally at the time of decision of the suit and may, at that time, pass such orders regarding costs or interest, having regard to the circumstances of the case, it deems fit.
(8) in case at the time of decision of the suit--
(a) the court finds that the amount of rent provisionally determined by it under subsection (3) and deposited in court or paid to the landlord under Sub-section (4) is less than the amount of rent finally decided as payable by the tenant, the court shall pass a decree for the balance amount against the tenant;
(b) the court finds that the amount determined and deposited or paid as aforesaid is in excess of the amount or rent finally decided as payable by the tenant, the court shall, in the event of passing a decree for eviction against the tenant on the ground other than that set forth in clause (a) of Sub-section (1), also pass decree in favour of the tenant for such excess amount deposited or paid by him and in the event of dismissing the suit for eviction it shall direct in the decree that such excess amount will be adjusted by the landlord against future rent payable by the tenant.
From the provisions extracted above, it can be seen that Sub-sections (3) and (4) of Section 13 of the Act have been substituted by the Amendment Act of 1976 for Sub-sections (3), (4) and (5) and Sub-section (5) is same as Sub-section (6) as it was before the Amendment Act of 1976 and Sub-section (6) has been substituted for Sub-section (7) as it was before the Amendment Act of 1976. Sub-sections (7) and (8) are new insertions in Section 13 by the Amendment Act of 1976.
6. In determination of the question whether provision of law is directory or mandatory, the law appears to be settled that no universal rule can be laid down in this respect and the prime object must be to ascertain the legislative intent, from a consideration of the entire statute, its nature, its object and the consequences that would result from construing it in one way or the other. In an oft-quoted passage Lord Campbell said :
"No universal rule can be laid down as to whether mandatory eanctments shall be considered directory only or obligatory with an implied nullifications for disobedience. It is the duty of Courts of justice to try to get at the real intention of the legislature by cerefully attending to the whole scope of the statute to be considered." (Liverpool Borough Bank v. Tumor (1861) 30 LJ Ch, 379 pp. 380, 381). It will, therefore, be necessary to see the purpose for which the provision has been made and its nature keeping in view the intention of Legislature and serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. In Statutory Construction by Sutherland, 3rd Ed. Vol. Ill, at Pages 79-80, referred to Interpretation of Statutes, it has been mentioned that it can be stated as a general proposition that as regards the question of mandatory or directory operation, the Court will apply construction which best carries into effect the purpose of the statute under consideration. To this end, the Courts may inquire into the purpose behind the enactment of the legislation requiring construction as one of the first steps in treating the problem.
The ordinary meaning of language may be overruled to effectuate the purpose of the statute.
Following observations are quoted from Bowditich v. New England Mutual Insurance Co. 'by Crawford in Statutory Construction at pp. 524-525, where it has been stated that each statute must be judged by itself as a whole, regard being had not only to its language, but to the objects and purposes for which it was enacted.
In K. Narasimhiah v. H. C. Singri Gowda and others (AIR 1966 SC 330), it was observed by the Apex Court that to ascertain the intention the Court has to examine carefully the object of the statute, the consequence that may follow from insisting on a strict observance of the particular provision and above all the general scheme of the other provisions of which it forms a part.
Again In Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board, Rampur (AIR 1965 SC 895), it was observed by their Lordships that the purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general-inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which many arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.
6A. It may also be pointed out that two main considerations for regarding a rule as directory are : (1) absence of any provision for the contingency of any particular rule not being complied with or followed, and (2) serious general inconvenience and prejudice to the general public would result if the act in question is declared invalid for non-compliance with the particular rule.
Where a public duty is imposed and the statute requires that it shall be performed in particular manner or within a particular time or in other specified conditions such prescriptions may be regarded as intended to be directory only, when injustice or inconvenience to others who have no control over those exercising the duty, would result, if such requirements were deemd essential and imperative. In District Board, Kheri v. Abdul Majid Khan (AIR 1930 Oudh 434,439), it was held that where the prescription of an Act relates to the performance of a duty by a public officer the breach of such prescription when it does not cause any real injustice does not invalidate the act done under the Act and therefore such prescriptions are merely directory. It may be pointed out that when consequence of nullification on failure to apply with prescribed requirement is provided by a statute itself, there can be no manner of doubt that such statutory requirement must be interpreted to be mandatory. In Maqbul Ahmad and others v. Onkar Pratap Narain Singh and ors. (AIR 1935 Privy Council, 85): 1938 ALJ 1124, the periods prescribed in the schedule to the Indian Limitation Act, 1908 for bringing a legal proceeding are mandatory as the consequence of the expiry of the period of limitation is provided by $. 3 of the Act, in that the Court is enjoined to dismiss a legal proceeding instituted after expiry of prescribed period. Similarly in Secretary of State v. Kuchwar Lime and Stone Co. Ltd., (AIR 1938 Privy Council 20) : (1938 ALJ 72) it was held that the requirement as to registration of certain document prescribed by Section 17 of the Registration Act, 1908, or by any provision of the Transfer of Property Act, 1882, is mandatory since the consequence of non-registration is provided by Section 49 of the Registration Act in that such documents if not registered do not affect the property comprised therein. Manilal Mohanlal Shah v. Sardar Sayed Ahmed Sayed Mohmad, (AIR 1954 SC 349), was a case, in which it was held by the Apex Court that it is an application of the same principle that the provisions of Order 21, Rules 84 and 86 of the Code of Civil Procedure requiring an auction purchaser to deposit twenty-five per cent of the purchase money forthwith and the balance on the fifteenth day from the sale, have been held to be mandatory, as on failure, in making either of these deposits within the time prescribed, the property has to be re-sold as provided in Order 21, Rule 84, and Rule 86. Generall it is held tht provision enacted is mandatory, if it is clothed with command in a negative form. As stated by Crawford. "Prohibitive or negative words can rarely, if ever, be directory, And this is so even though the statute provides no penalty for disobedience." (Craw-ford : Statutory Construction, p. 523 p.) But the principle is not without exception. An interesting example, where negative words have been hold to be directory, is furnished in the construction of Section 25F of the Industrial Disputes Act, 1947, where compliance of clause (c) has been held to be directory by the Apex Court in Bombay Union of Journalists v. State of Bombay (AIR 1964 SC 1617), although compliance of clauses (a) and (b) which are connected by the same negative words is understood as mandatory., in the same authority. While the use of word 'shall' as held in State of U. P. v. Manbodhan Lal Srivastava, (AIR 1957 SC 912 : 1957 All LJ 921), raises a presumption that the particular provision is imperative, but this prima facie inference may be rebutted.by other consider-tions such as object and scope of the enactment and the consequences flowing from such construction. There are numerous cases where the word 'shall' has therefore, been construed as merely directory. The word 'shall' as observed by Hidayatullah, J. in Sainik Motors v. State of Rajasthan, (AIR 1961 SC 1480)" is ordinarily mandatory butit is sometimes not so interpreted if the context or the intention otherwise demands". It was pointed out by Subbarao, J. in State of U. P. v. Babu Ram, (AIR 1961 SC 751, p. 765 :1961 (1) Cri LJ 773), that "when a statute uses the word 'shall', prima facie it is mandatory, but the court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute.
7. It is, therefore, clear from the law discussed above that for arriving at the conclusion whether a particular provision is mandatory or directory in-nature, it is necessary to see the nature of the statute and the object with which the Legislation was enacted by the Legislature.
8. The question to be considered is whether under the provisions of Sub-section (3) of Section 13 of the Act, 1950, it is mandatory for the court to provisionally determine the amount of rent to be deposited in Court or to be paid to the landlord by the tenant on the first date of hearing or on any other date as the Court may fix in this regard, which shall not be more than three months after the filing of written statement and in any case shall be before the issues are framed in the proceedings and the determination made by the court after the expiry of the aforesaid period is illegal, void and of no consequence. As pointed out earlier certain provisions of Section 13 of the Act 1950, were amended by the Amendment Act, 1976. Before this amendment, it was provided in Sub-section (4) of Section 13 of the Act that in a suit for eviction on the ground set forth in clause (a) of Sub-section (1), with or without any of the other grounds referred to in that sub-section the tenant shall, on the first day of hearing or on or before such date as the court may, on an application made to it, fix in this behalf, or within such time, not exceeding two months, as may be extended by the court, deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable upto the date of deposit and shall thereafter continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate. A bare reading of Sub-section (4) of Section 13, therefore, shows that if was duty of the tenant to have filed an application on the first day of hearing or within such time as may be extended by the Court, which could not be more than two months to deposit in Court or pay to the landlord the amount of rent calculated by the tenant himself at such rate as it was last paid for the period for which the tenant may himself think that he had made default along with interest at the rate of six percent per annum. Therefore, if tenant committed any mistake in calculating the amount of rent and interest payable thereto or the period for which the default has been committed by the tenant, he had to suffer the harsh consequences, which may result in ordering the defence against the eviction to be struck off. Keeping in view the hardship of the tenant, the provisions of Section 13 were changed and Amending Act 1950 was introduced to remove such hardship of the tenants. It may also be said that unamended provisions operated hardship against the landlords in the sense that no time limit was prescribed in Sub-section (5) within which the Court was to determine the amount to be deposited or paid by the tenant to the landlord.
9. Shri P. K. Sharma, learned counsel for the respondent has placed reliance on Ram Chandra v. Kanak Ram (WLN 1980,128), in which it was held by this court that determination of amount of rent provisionally is mandatory but it is directory in respect of period within which the same can be determined. It was further held that provisional rent can be determined even before expiry of three months after the filing of written statement or even after the issues are framed. It was observed that to hold that the period prescribed in Sub-section (3) of Section 13 for the provisional determination of the amount by the Court is mandatory, would result in penalising the tenant for something for which he is not at all responsible. It was, therefore, held that the period prescribed in Sub-section (3) of Section 13 of the Act, 1950, cannot be regarded as mandatory and that it is only directory.
Reliance has also been placed on Ram Pratap v. Smt. Manphool (R. L. R. 1985, 967), in which also a similar view was taken and it was held that time period prescribed in Sub-section (3) of Section 13 of Act 1950 was directory.
10. Shri Mandhana, learned counsel for the petitioner has placed reliance on Modmal v. Maheshwari Samaj, Jodhpur (RIW 1986, 343). This was a case in which when for landlord applied for the execution of the decree, the tenent judgment-debtor moved an application under Ss. 47 and 151 of the Code of Civil Procedure and challenged the decree. It was urged that the decree is a nullity and was not capable of execution as the trial court failed to comply with the mandatory provisions of Section 13(3) of the Act, inasmuch as the provisional rent was not determined. It was urged that had the provisional rent been determined under Section 13(3) of the Act, the tenant would have made the payment and the suit would have been dismissed. While considering the above contention, it was also observed by this Court that even though provisions of Sub-section (3) of Section 13 of the Act 1950 are mandatory and imperative and casts a duty on the Court to provisionally determine the arrears of the rent to be deposited or paid by the tenant, this duty is to be performed by the trial court suo motu and there is no requirement of application from either of the parties to the proceedings. It was held that, however, this is a pre-decree matter as non-compliance of the provisions of subsection (3) of Section 13 of the Act 1950, does not render the decree a nullity. Reliance has also been placed on Gani Mohammed v. Motilal and others (RLR 1988 (1), 1023), in which a different view was taken and it was held that when plaintiff examined two witnesses and after closing their evidence, moved an application under Sub-section (3) of Section 13 after seven years of framing of issues, it was held that there was no justification for the trial court to grant such application which was contrary to the provisions of Sub-section (3) of Section 13 and was after lapse of seven years from framing of the issues.
11. A perusal of the object of the Act shows that it is a piece of beneficial legislation which has been enacted with a view to provide protection to the tenants against the eviction. The Statement of the objects and reasons of the Amending Act of 1976, further show that the Legislature intended to give further protection to the tenants in certain matters by enacting the Amendment Act 1976, and it could not be said that it was intention of the legislature to take away the protection against eviction which had been provided to the tenants by the Act. Therefore, the amended provisions of Section 13 of the Act have to be considered keeping in view the object of the Legislature in amending the relevant provisions whether the requirement in Sub-section (3) of Section 13 of the Act as amended that the Court shall provisionally determine the amount of rent to be deposited in the Court or paid to the landlord by the tenant on the first day of hearing or on any other date as the Court may fix in this behalf, which shall not be more than three months after filing of written statement and shall be before the framing of issues is in the nature of mandatory obligation which disentitles the Court from making a determination after the said period is expired which may thus result in denial to the tenant of the protection against the eviction sought to be conferred upon him by the Amending Act. In this context, it has also to be kept in view that the obligation imposed by Sub-section (3) with regard to the period within which the determination has to be made, has been kept on the public Officer i.e. the Court and the tenant even though he is party to the proceedings has no control what so ever on the discharge of the functions by the said Public Officer within the time limit as prescribed in Sub-section (3) of Section 13 of the Act. It is clear from the object with which the Act 1950 was enacted and subsequently amended that the Legislature wanted to protect the tenant from the harassment that may be caused to the tenants so far as the eviction from the rented premises is concerned. Therefore', the provisions of Sub-section (3) of Section 13 have to be so construed, so as to advance the object of the legislature in amending the provisions. In the amended provisions of Section 13, a duty has been cast on the Court in Sub-section (3) to determine the amount of rent and this provision is mandatory and the Court is duty bound to provisionally determine the rent in accordance with Sub-section (3) of Section 13 of the Act. However, the tenant cannot be held responsible if the Court somehow for any reasons, is not able or has not determined the provisional rent within the period prescribed by the provisions of Sub-section (3) of Section 13.
There can be several reasons and to mention only few, there may be strike, on account of which the functioning of the Court right have hampered, the Presiding Officer may be on leave and no other Judicial Officer may have been appointed to look after the work of that Court or on account of heavy rush of work on a particular date, the Court may not be able to provisionally determine the rent within the period prescribed in Sub-section (3) of Section 13 or one of the parties after filing written statement may have died and it may become necessary to bring on record the legal heirs and therefore, it may not be possible for the Court to provisionally determine the amount of rent within the time limit prescribed under Sub-section (3) of Section 13. Therefore, it can be said that to hold that the period prescribed in Sub-section (3) of Section 13 of the Act, regarding provisionally determining the amount of rent by the Court to be mandatory would result in causing harassment to the tenant for some thing for which he cannot be held to be responsible. In Ganesh Prasad Sah Kesari and another v. LakshmiNarayan Gupta(AIR 1985 SC 964) it was held by the Apex Court while considering Bihar Buildings (Lease, Rent and Eviction) Control Act (1947) that the word "shall" used in Section 11A is directory and not mandatory and must be read as "may". It was further held that if one ascertains intendment of the legislature, the purpose for which the provision was enacted, the beneficent nature of the statute 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. In Ganesh Prasad Sah Kesari and another v. Lakshmi Narayan Gupta (AIR 1985 SC964), while considering the use of words 'may' and 'shall', it was held by the Apex Court that it is true that 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 intention to make one part directory and another mandatory. But that by itself is not decisive. The power of the court still to ascrtain the real intention of the Legislature by carefully examining the scope of the statute to find out whether the provision is directory or mandatory remains unimpaired even where both the words are used in the same provision.
12. We are, therefore, of the considered opinion that the period prescribed in subsection (3) of Section 13 of the Act, within which the Court should make provisional determination of amount of rent to be deposited in Court or to be paid to the landlord by the tenant cannot be regarded as mandatory and that it is only directory. The view expressed in Modmal v. Maheshwari Samaj (RLW 1986 343) and Gani Mohammed v. Motilal and others (RDR 1988 (1), 1023) does not lay down correct law and earlier view taken in Ramchandra v. Kanak Ram (WLN 1980, 128), and Ram Pratap v. Smt. Manphool (RLR 1985, 967) lays down correct law.
Our answer, therefore, on the point referred for consideration is that the period prescribed in Sub-section 30 of Section 13 of the Act, 1950, within which the Court should make provisional determination of amount of rent which is to be deposited in Court or has to be paid to the landlord by the tenant cannot be regarded to be mandatory and is only directory in nature.
The reference is answered accordingly.