Holding

The Supreme Court held that the 1967 Ordinance’s retrospective provision extended the benefit of Section 17(2A) to all pending suits, and that the word “shall” in Section 17(3) is directory, so the tenant was entitled to relief under Section 17(4) and the eviction suit was dismissed.

Summary

The tenant, B.P. Khemka Pvt. Ltd., was sued for eviction on the ground of rent default. While the suit was pending, the West Bengal Premises Tenancy (Amendment) Ordinance 1967 introduced Section 17(2A) allowing tenants in default to pay arrears in instalments, and Section 5 gave it retrospective effect to all pending suits. The tenant filed an application under 17(2A)(b) within one month of the Ordinance and later paid the arrears, but the landlord sought to strike out the tenant's defence under Section 17(3) alleging delayed payment for two months. The High Court held the 17(2A) application was not maintainable and that the delay justified striking out the defence. The Supreme Court interpreted the Ordinance and the Act liberally, held that Section 5 extended the benefit of 17(2A) to the pending suit irrespective of the one‑month limitation in Section 17(1), and that the word “shall” in Section 17(3) is directory, giving the court discretion. Consequently, the tenant was entitled to relief under Section 17(4) and the eviction suit was dismissed.

Issues considered

The applicability of Section 17(2A)(b) of the West Bengal Premises Tenancy Act to a pending suit despite the one‑month limitation in Section 17(1), in view of the retrospective effect of Section 5 of the 1967 Ordinance.
Whether the delayed payment of rent for two months mandates striking out the tenant's defence under Section 17(3) or whether the court has discretion, considering the proviso to Section 17(4).
The interpretation of the word “shall” in Section 17(3) as mandatory or directory.

Legislation cited

Code of Civil Procedure, 1908s. 148
West Bengal Premises Tenancy Act, 1956s. 17(1), s. 17(2), s. 17(2A), s. 17(3), s. 17(4)
West Bengal Premises Tenancy (Amendment) Ordinance No. VI of 1967s. 2, s. 5

Subjects

West Bengal Premises Tenancy Actrent arrearsinstallment paymentretrospective legislationstatutory interpretationdirectory vs mandatoryevictiondefaultprovisoremedial amendment

Judgment

B.P. KHEMKA PVT. LID.
A
v.
BIRENDRA KUMAR BHOWMICK & ANR.

MARCH 6, 1987

[A.P. SEN AND S. NATARAJAN, JJ.] B

West Bengal Premises Tenancy Act, 1956-S.17(1), (2) and
l (2A)-West Bengal Premises Tenancy (Amendment) Ordinance VI of
\ 1967-Ss.2 and 5-Rent-Default in payment of-Application before
Court for payment of rent arrears in instalment under s. I7 (2A) (b) of
_ ~. 1956 Act (as introduced by Ordinance VI of 1967)-Time limit For C
r"" filing-Reading s.17 (2A) (b) of 1956 Act conjointly with s.5 of the
Ordinance-All tenants against whom suits or appeals pending on the
date of promulgation of Ordinance entitled to benefit of s.17 (2A) by
..(__ filing application within one month from the date ofpromulgation of the
Ordinance-Limitation of one month prescribed by s.17( 1) of 1956 Act
inoperative by virtue of s.5 of the Ordinance making it effective D
retrospectively.

West Bengal Premises Tenancy Act, 1956-S.17(3) and (4)
Proviso--Second default in payment of rent within the meaning of Pro-
viso to s.17(4)-Must be for four months and above within 12 months-
Tenant's defence against delivery of possession-Cannot be struck out if E
subsequent default is for a period of less than four months within 12

- months-Eviction suit on ground of default liable to be dismissed-
Section 17(3)-Word 'shall' being directory to be read as 'may'-
Discretion of the Court-To order either striking out of defence or
not-Depends upon the circumstances of the case and interest of
justice--If court exercises discretion not to strike out defence--Court has F
further discretion to condone the default and extend time for payment of
'"!' deposit.

Interpretation of statutes-Remedial amendments-To be con-
strued liberally-Duty of Court-To avoid conflict between two
sections-Mendatory or directory-Whether 'shall' used as 'may'- G
Depends upon legislative intent.

The first respondent filed a suit against the appellant and the
second respondent for ejectment on the ground of default in payment of
the monthly rent. The appellant denied the alleged default and filed an
application under s.17(2) of the West Bengal Premises Tenancy Act, H

559
560 SUPREME COURT REPORTS [1987] 2 S.C.R.

1956 to seek the orders of the Court regarding the amount of rent
A payable to the landlord. f'

During the pend ency of the proceedings the West Bengal Premises
Tenancy (Amendment) Ordinance No. VI of 1967 (later replaced by the
West Bengal Premises Tenancy (Amendment) Act 30 of 1969) came to
B be promulgated with effect from 26.8.67. By s.2 of the Ordinance sub-
s.(2A) and (2B) to s.17 of the Act were inserted. Section 5 of the Ordi- ~-
nance gave retrospective effect to the amendments by providing that the
amendments made by s.2 of the Ordinance shall have effect in respect of
all suits including appeals which were pending on the date of com- -~ -
mencement of the Ordinance. The amendments inter alia enabled tenants
who were in default to apply to the Court and pay the arrears of rent in
c instalments.

To avail the benefit of amended provisions the appellant preferred
>
an application within one month under s.(2A)(b) praying for payment
of arrears of rent in instalments. The trial Court fixed the amount of
D arrears payable and allowed the payment thereof in three instalments.
The appellant paid the entire arrears of rent on 31. 7. 70 covering the
period ending with 29.2.68.

In the meanwhile the first respondent had filed an application
under s.17(3) for striking out the defence of the appellant against the
E delivery of possession of the demised premises for non-compliance with
the terms of s.17(1). Resisting the application the appellant contended
that since he had paid the arrears of rent as per the orders of the Court
-
under s.17(2A)(b), the first respondent's suit should be dismissed under
s.17(4). The trial Court allowed the application and struck out of the
defence the appellant on the ground that in paying the rent for the
F months of September 1968 and March 1969 there had been a delay and
thus the appellant had contravened s.17(1) and, therefore, he was not
entitled to protection under s.17(4). The application filed by the appel-
lant under s.148 CPC for extension of time for deposit of amount for the
months of September 1968 and March 1969 was dismissed. The suit was
decreed and the decree confirmed by the Appellate Court and the High
G Court. The High Court held that even an application under s.17(2A)(b)
was not maintainable and hence the appellant cannot raise a plea that
he had paid the arrears of rent within time and the trial Court should
have dismissed the suit under s.17(4).

Allowing the Appeal and dismissing the Civil Miscellaneous
H Petitions,
B.P. KHEMKA PVT. LTD. v. B.K. BHOWMJCK 561

HELD: 1. When s.17(2A) of the West Bengal Premises Tenancy
A
Act, 1956 and s.5 of the West Bengal Premises Tenancy (Amendment)
Ordinance No. VI of 1967 are read conjointly it is clear that the inten-
tion of the legislature was to extend the benefit of sub.s (2A) to all
pending suits and appeals irrespective of the fact whether the time limit
of one month prescribed under s.17(1) had expired or not. Any other
construction would have the effect of 1 endering otiose s.5 of the Ordi- ·B
nance. Since the Ordinance came to be replaced long after by the Act,
s.5 of the Ordinance was not reproduced in the Act. It is significant that
s.5 of the Ordinance entitled the appellant to file an application under
s.17(2A)(b), in the suit filed by the first respondent which was pending
then. The High Court has looked only into the Act and not the Ordi-
nance and that is how s.5 of the Ordinance has escap~d its notice. The
High Court has, therefore, committed an error in failing to notice the C
overriding effect of s. l 7(2A) and s.5 of the Ordinance. [567C-E)

2. If the intention of the legislature was to restrict the benefits
given under s.17(2A) to only those tenants against whom suits had been
filed within one month prior to the promulgation of the Ordinance, I>
there was no necessity to give retrospectively to s.(2A) under s.5 of the
Ordinance. It has, therefore, to be held that all tenants against whom
suits or appeals were pending on the date of the promulgation of the
+ Ordinance were entitled to seek the benefit of s.17(2A) by filing an
application within one month from the date of the promulgation of the
Ordinance. The High Court was, therefore, in error in holding that the E
application under s.17(2A)(b) was itselfnot maintainable. [568B-C)

3. Remedial amendments have to be liberally construed so as not
to deny its efficacy and it is the duty of the courts to avoid a conflict
between two sections. [567E)
F
Madhav Rao Scindia v. Union of India, AIR S.C. 1971 530 at 576
and Dy. Custodian v. Off/. Receiver, [1965) 1 SCR 220 at 225, relied
upon.

4. In so far as the payment of arrears for the period ending
29.2.68 is concerned, the appellant had complied with the orders of the G
Court under s.17(2A)(b) and was, therefore, entitled to claim the be-
nefit ofs.17(4). [568E)

5. Sub-section (3) has to be read and understood with reference to
sub-s.(4) also and in particular its Proviso. Sub-section (4) lays down
that when a tenant, mai\es payment as required by sub-s.(l), (2) or (2Al. H
562 SUPREME COURT REPORTS [1987] 2 S.C.R.

A no decree or order for delivery of possession shall be made on the
ground of default in payment of rent hy the tenant. The Proviso sets out
that a tenant who has obtained relief under suh.s.(4) is not entitled to
seek relief once again under the sub-section if he has again made default
in the payment of rent for 4 months within a period of 12 months. The
Proviso, therefore, makes it clear that if the subsequent default is for a
B period less than 4 months within a period of 12 months the tenant can
claim relief under the sub-section once again. [569C-E]

In the instant case, the previous arrears related to the period
ending with 29.2.68 and those arrears had been paid in compliance of
the Court's order. The apellant was, therefore, entitled to ask for the
C dismissal of the suit. In so far as the subsequent default is concerned, it
is well within the limitations prescribed by the Proviso to sub-section
(4). The default is only for two months and that too in a period of 13
months. The appellant will, therefore, be entitled to the protection of
>
the proviso. [569E-F]

D 6. The words "shall order the defence against delivery of posses-
sion to be struck out" occurring in s.17(3) have to be construed as a
directory provision and not a mandatory provision as the word "shall"
has to be read as "may". Such a canon of construction is warranted be-
cause otherwise the intendment of the legislature will be defeated and the
class of tenants for whom the beneficial provisions were made by the Ordi-
E nance and the Amending Act will stand deprived of them. [569H; S70A-B]

Govindlal Chhaggan/a/ Patel v. Agricultural Produce Market
Committee, Godhra, [1976] 1 SCR 451; [1975] 2 SCC 482 and Ganesh
Prasad Sah Kesari v. Lakshmi Narain Gupta, [1985] 3 SCC 53, relied
upon.
F
7. Once the word "shall" used in s.17(3) is read as "may" and
consequently the provision for striking out of defence is to he read as
directory and not mandatory then it follows that the Court is vested
with discretion to order either striking out of defence or not depending
upon the circnmstances of the case and the interest of justice. If the
G Court has the discretion not to strike out the defence of the tenant
committing default in payment for deposit of rent as required by a
provision in any Rent Restriction Act, then the Court surely has the
further discretion to condone the default and extend the time for pay-
ment or deposit and such a discretion is a necessary implication of the
discretion not to strike out the defence. [570F-H]
H
B.P .. KHEMKA PVT.LTD. v. B.K. BHOWMICK [NATARAJAN, J.I 563

Shyamcharan Sharma v. Dharamdas, [1980] 2 SCR 334; Santosh
A
Mehta v. Om Prakash and Anr., [1980] 3 SCR 325 and Ram Murti v.
Bhola Nath and Another, [1984] 3 SCR 111, relied upon.

Iu the instant case, the default was not one of non-payment of the
arrears of the rent for the subsequent period. The default pertained to
belated payment of rent for two months and was, therefore, a default in B
the technical sense than in the real sense and hence of an inconsequen-
tial nature. Having regard to the intendment of the Act and the nature
of the provisions it can never be said that the defaults were of such a
serious nature as to warrant the court refusing to exercise its discretion
and to fell constrained to strike out the defence. [571C-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1262 c
of 1979

From the Judgment and order dated 3 .4.1978 of the High Court
of Judicature at Calcutta in Appeal from Appellate Decree No. 1700
of 1972. D

S.T. Desai and M.L. Verma for the Appellants.

Govind Mukhoty and R.P. Gupta for the Respondents.

M.N. Krishmani and V. Shekar for the Intervenor. E

The Judgment of the Court was delivered by

NATARAJAN, J. This Appeal by Special Leave is by a tenant
and is directed against the judgment of the Calcutta High Court in an
Appeal against Appellate decree No. 1700 of 1972. The defence of F
appellant in the suit filed by the first respondent for eviction was struck
out and thereafter a decree for eviction was passed and the said decree
was confirmed by the Appellate Court and the High Court and hence
this Appeal by Special Leave.

During the pendency of the suit the first respondent had entered G
into an agreement for sale of his building in which the suit property
forms the ground floor to one Ramdin Singh Agarwala but subse-
quently executed a Sale" Deed in favour of one Chidanand Halder.
Ramdin Singh Agarwala filed a suit for specific performance in the
Court of the Sub Judge, Alipore and obtained a decree. The subse-
quent purchaser Chidanand Halder has filed an appeal against the H
564 SUPREME COURT REPORTS [1987] 2 S.C.R.

A judgment and decree in the said suit and the appeal is pending disposal
before the High Court. Both the parties, claiming to have acquired
title to the building of which the suit property forms a part have filed
CMP Nos. 19671 and 32297 of 1986 seeking impleadment in this
Appeal.
B The first respondent who succeeded to the suit property after the
death of his father filed a suit against the appellant and its director the
second respondent for ejectment on the ground of default in payment
of the monthly rent of Rs, 550 from March 1965 to July 1966. The
appellant filed a written statement denying the default in payment of '-..
rent and also filed an application under Section 17(2) of the West
c Bengal Premises Act, 1956 (for short the Act) to seek the orders of the
Court regarding the amount of rent payable to the landlord.

During the pendency of the proceedings the West Bengal
Premises Tenancy (Amendment) Ordinance No. VI of 1967 (later
replaced by the West Bengal Premises Tenancy (Amendment) Act 30
D of 1969) came to be promulgated with effect from 26.8.67. By Section
2 of the Ordinance Sub-Sections (2A) and (2B) to Section 17 of the
Act were inserted. Section 5 of the Ordinance gave retrospective effect
to the amendments by providing that the amendments made by Sec-
lion 2 of the Clrdinance shall have effect in respect of all suits including
Appeals which were pending at the date of commencement of the
E Ordinance. The amendments inter alia enabled tenants who were in
default to apply to the Court and pay the arrears of rent in instalments
and thereby avert their eviction.

To avail the benefit of the amended provisions the appellant
preferred an application on 22.9.67 i.e. within one month from the
F date of promulgation of the Ordinance under Section 17(2A)(b) pray-
ing for payment of the arrears of rent in instalments. By Order No. 39
the trial court fixed the amount of arrears payable at Rs.13,602 and "'
gave directions for the amount being paid in three instalments. As an
error was noticed in the calculation of the rent arrears, the appellant
filed a review petition and the Court re-fixed the arrears at Rs.9, 752 by
G Order No. 72. Subsequently this order was also revised and eventually
the appellant paid the entire arrears of rent in accordance with the
directions of the court by 31.7.70. It may be stated here that the

H'
payment covered the perio\) ending with 29.2.1968 i.e. upto the end of
the month previous to the date on which Order No. 39 was made, viz.
16.3.1968.
l
B.P. KHEMKA PVT. LTD. v. B.K. BHOWMICK [NATARAJAN, J.) 565

In the meanwhile the first respondent had filed an application
A
under Section 17(3) for striking out the defence of the appellant
against the delivery of possession of the demised premises for non-
compliance with the terms of Section 17(1). On 14.3.70 the court
allowed the said application and struck out the defence of the appellant,
on the ground that in paying the rents for the months of September
'•
1968 and March 1969 there had been a delay of 44 days and 6 days B
respecively and this was in contravention of Section 17(1) of the Act.
-+ Thereafter the suit for eviction was decreed and the said decree came
to be confirmed by the Appellate Court and the High Court.

---"' .r--· The appellant filed an application on 13.6. 70 under Section 148
Civil Procedure Code for extension of time for deposit of amount for
the months of September 1968 and March 1969 so as to cover the
c·
' delays that had occurred in the payment of rent for those two months.
This application was dismissed by the Trial Court on 30.7.70. It was
'""' thereafter the decree for eviction was passed.

Resisting the application under Section 17(3) filed by the first D
respondent the appellant contended that since he had paid the arrears
of rent as per the orders of the Court under Section 17(2A)(b), the
first respondent's suit should be dismissed under Section 17(4) of the
_.,,. Act. The Trial Court rejected the contention and held that in view of
the default in depositing the rent for the months of September 1968
and March 1969 within time i.e. before the 15th of the next succeeding E

- month, the appellant had contravened Section 17(1) of the Act and
therefore, the appellant was not entitled to protection under Section

... •-1 17(4). The High Court went a step further and held that even the
application under Section 17(2A)(b) was not maintainable and hence
the appellant cannot raise a plea that he had paid the arrears of rent
within time and as such the Trial Court should have dismissed the suit F
under Section 17(4). The High Court's reasoning is as under:-

"In our view, the application under section 17(2A)(b) was
not also maintainable. It is true that section 17 (2A)(b) was
·made applicable to pending suits by the Ordinance. But
• such applicability will be subject to the limitation imposed G
by sub-section (2B) of Section 17, namely, that an applica-
~
tion under sub-section (2A)(b) has to be made before the
expiry of the time specified in sub-section (1) of Section 17
for the deposit or payment of the amount due on account of
default in payment of rent. Under sub-section (1) of Sec-
tion 17 the time specified is one month from the service of H
566 SUPREME COURT REPORTS [1987] 2 S.C.R.

the writ of summons on the defendant or where he appears
A
in the suit or proceeding without the writ of summons being
served on him, within one month of his appearance. In the
instant case, the summons was served on the defendants
on April 6, 1967. The application under section 17(2A)(b)
having been filed on September 22, 1967, it was barred by
B limitation ..... In our view, after the expiry of one month
of the service of summons on the defendants, they had no
right to avail themselves of the provisions of section
17(2A). Sub-section (2B) of section 17 having prescribed a
time limit for an application under sub-section (2A), no ~
other period of limitation can be substituted for the - - '- -
purpose of making an application for instalments. It is true
c that the Act is a remedial statute, but that fact does not
give the Court jurisdiction to alter the period of limitation ./-
as prescribed by the statute for the purpose of giving relief
to the tenant. If the legislature had intended that the tenant
in a pending suit would be entitled to make an application
D under section 17(2A) within one month of the date of
promulgation of the Ordinance, it would have expressly
provided for the same as it has done in other cases covered
by section 17B and 17D."

Having regard to the reasons given by the Trial Court and the
E High Court for striking out the defence of the appellant and the in-
applicability of Section 17(4) to the case, two questions fall for consi-
deration, viz. (1) whether the appellant was not entitled to the benefit -
of Section 17(2A)(b) of the Act since the application under the sub-
section had not been filed within one month from the date of service of
the writ of summons and (2) whether in any even the delayed payment
F of rent for the months of September 1968 and March 1969 necessarily
warranted the striking out of the defence. Mr. S.T. Desai, learned
counsel for the appellant, contended that the decisions rendered by
the trial court and the High Court are clearly unsustainable. On the
contrary, the learned counsel for the first respondent argued that the
trial court and the High Court had acted perfectly in accordance with
G law.

Taking up the first question for consideration we find that the
High Court has committed an error in failing to notice the overriding
effect of Section 17(2A) and Section 5 of the Ordinance. Section
17(2A) begins with the words "Notwithstanding anything contained in
H sub-section ( 1) or sub-section (2) on the application of the tenant, the
B.P. KHEMKAPVT. LID. v. B.K. BHOWMICK [NATARAJAN, J.) 567

Court may, by order" and then sets out sub-sections (a), (b) and the
Proviso. Then comes the all important Section 5 of the Ordinance A
which is in the following terms:-

"5. Retrospective effect.-The amendments made by sec-
tion 2 shall have effect in respect of all suits including appe-
als which are pending at the date of commencement of this ·g
Ordinance''.
(Emphasis supplied.)

~_ Since the Ordinance came to be replaced long after by the Act,
/ Section 5 of the Ordinance was not reproduced in the Act because it had
served its purpose. What is, however, of significance is that Section 5 of
the Ordinance entitled the appellant to file an application under Section C
""°' 17(2A)(b), in the suit filed by the first respondent which was pending
then. Unfortunately, the High Court has looked only into the Act and
not the Ordinance and that is how Section 5 of the Ordinance has
escaped its notice. When Section 17(2A) and Section 5 of the Ordinance
are read con jointly it may be seen that it was the intention of the o
legislature to extend the benefit of sub-section (2A) to all pending suits
and appeals irrespective of the fact whether the time limit of one month
prescribed under Section 17(1) had expired or not. No other construc-
tion is possible because any other construction would have the effect of
rendering otiose Section 5 of the Ordinance. It is a well-known rule of
interpretation of law that remedial amendments have to be liberally E
construed so as not to deny its efficacy and it is the duty of the courts to
avoid a conflict between two sections. Jn Madhav Rao Scindia v. Union
of India, AIR S.C. 1971530 at 576 this Court has held as follows:
•• "The Court will interpret a statute as far as possible, agree-
ably to justice and reason and that in case of two or more F
interpretations, one which is more reasonable and just will
be adopted, for there is always a presumption against the
law-maker intending injustice and unreason .... A provi-
sion in a statute will not be construed to defeat its mainfest
purpose and general values which animate its structure."
G
In Dy. Custodian v. Off/. Receiver, [1965] 1SCR220 at 225 it was held
as follows:-

"If it appears that the obvious aim and object of the statu-
tory provisions would be frustrated by accepting the literal
construction suggested by the respondent, then it may be H
568 SUPREME COURT REPORTS [1987] 2 S.C.R.

open to the court to enquire whether an alternative con-
A
struction which would serve the purpose of achieving the
aim and object of the Act, is reasonably possible."

It was the intention of the Legislature to restrict the benefits
given under Section 17{2A) to only those tenants against whom suits
B had been filed within one month prior to the promulgation of the
Ordinance, there was no necessity to give retrospectivity to sub-
section (2A) under Section 5 of the Ordinance. It has, therefore, to be -J.
held that all tenants against whom suits or appeals were pending on the
date of the promulgation of the Ordinance were entitled to seek the-~
benefit of Section 17{2A) by filing an application within one month '
from the date of promulgation of the Ordinance. The High Court was,
c therefore, in error in holding that the application under Section
17{2A){b) was itself not maintainable. If the High Court's view is to be ,/'
accepted it would then amount to asking the appellant to perform the
impossible i.e. asking the appellant to file an application under Sec-
tion 17{2A)(b) which came into force on 26.8.67 within one month
D from 6.4.67 when the suit summons was served. Therefore the first
question has to be answered in favour of the appellant. The resultant
position would then be that in so far as the payment of arrears for the
period ending 29.2.68 is concerned, the appellant had complied with
the orders of the Court under Section 17(2A){b) and was therefore
entitled to claim the benefit of Section 17(4).
E
The second question now remains for consideration. The trial
court and the High Court have taken the view that the delayed pay-
ment of rent for the months of September 1968 and March 1969
attracted the striking out of the defence under Section 17(3) of the
Act. Sub-sections (3) and (4) are worded as under:-
F
"(3) If a tenant fails to deposit, or pay any amount refer-
red to in sub-section (1) or sub-section (2) within the time
specified therein or within such extended time as may be
allowed under clause (a) of sub-section (2A), or fails to
deposit or pay any instalment permitted under clause (b) of
G sub-section (2A) within the time fixed therefore, the Court
shall order the defence against delivery of possession to be
struck out and shall proceed with the hearing of the suit;

(4) If a tenant makes deposit or payment as required
by sub-section (1), sub-section (2), or sub-section {2A) no
H decree or order for delivery of possession of the premises
B.P. KHEMKAPVT. LID. v. B.K.BHOWMICK INATARAJAN,J.] 569

to the landlord on the ground of default in payment of rent A
by the tenant shall be made by the Court but the Court may
allow such costs as it may deem fit to the landlord:

Provided that a tenant shall not be entitled to any
relief under this sub-section if, having obtained such relief
once in respect of the premises, he has again made default B
in the payment of rent for four months within a period of
twelve months."

Perhaps on a rigid construction of sub-section (3) without reference to
sub-section (4) it may be said that the failure to pay the rent for the
months of September 1968 and March 1969 by the 15th of the next
succeeding month may afford ground for striking out the defence of C
the appellant. But then sub-section (3) has to be read and understood
with reference to sub,section (4) also and in particular its Proviso.
Sub-section (4) lays down that when a tenant makes payments as re-
quired by sub-sections (1), (2) or (2A) no decree or order for delivery
of possession shall be made on the ground of default in payment of D
rent by the tenant. The Proviso sets out that a tenant who has obtained
relief under sub-section (4bs not entitled to seek relief once again
under the sub-section if he has again made default in the payment of
rent for 4 months within a period of 12 months. (Emphasis supplied.)
The Proviso, therefore, makes it clear that if the subsequent default is
for a period less than 4 moths within a period of 12 months the tenant E
can claim relief under the sub-section once again. In this case the
previous arrears related to the period ending with 29 .2.1968 and those
arrears had been paid in compliance of the Court's order. The appel-
lant was, therefore, entitled to ask for the dismissal of the suit. In so
far as the subsequent default is concerned, it is well within the limita-
tions prescribed by the proviso to sub-section ( 4). The default is only F
for two months and that too in a period of 13 months. The appellant
will, therefore, be entitled to the protection of the proviso. The trial
court and the appellate court have failed to notice this aspect of the
matter.

Even if the proviso is viewed in a limited sense as being attracted G
only to those cases where there has been full and complete compliance
with the provisions of sub-section(!) or (2) or (2A) of Section 17 and
will not apply to a case as the one on hand, the appellant cannot be
denied relief because the words "shall order the defence against de-
livery of possession to be struck out" occurring in Section 17(3) have
to be construed as a directory provision and not a mandatory provision H
570 SUPREME COURT REPORTS [1987] 2 S.C.R.

A as the word "shall" has to be read as "may". Such a canon of construc-
tion is warranted because otherwise the intendment of the Legislature
will be defeated and the class of tenants for whom the beneficial provi-
sions were made by the Ordinance and the amending Act will stand
deprived of them. We may only refer to two decisions of this Court on
this aspect of the matter. In Govindal Chhagganlal Patel v. Agri-
B cultural Produce Market Committee, Godhra, [1976] 1SCR451: [1975]
2 SCC 482, Chandrachud, C.J. speaking for the Court approved the
following passage in Crawford on 'Statutory Construction' (Ed. 1940,
Art. 261, p. 516): (SCC p. 487, para 13)
,.
"The question as to whether a statute is mandatory or
directory depends upon the intent of the legislature and not
c upon the language in which the intent is clothed. The
meaning and intention of the legislature must govern, and . _,_
these are to be ascertained, not only from the phraseology /
of the provision, but also while considering its nature, its
design, and the consequence which would follow constru-
D ing it the one way or the other."

In Ganesh Prasad Sah Kesari v. Lakshmi Narain Gupta, [1985] 3 SCC
53 this Court, dealing with a similar provision for striking out of
defence in Section llA of the Bihar Buildings (Lease, Rent and Evie- 1
tion) Control Act, 1947 referred to Govindlal Chhagganlal Patel's case -'t
E (supra), and held as follows:-

. "Applying this well-recognised canon of construction the
conclusion is inescapable that the word 'shall' used in the
provision is directory and not mandatory and must be read
as 'may'."
F
Once the word "shall" used in Section 17(3) is read as "may" and
consequently the provision for striking out of the defence is to be read
as directory and not mandatory then it follows that the Court is vested
with discretion to order either striking out of the defence or not de-
pending upon the circumstances of the-case·and the interests of justice.
G This Court has consistently taken the view that if the Court has the
discretion not to strike out the defence of the tenant committing de-
fault in payment or deposit of rent as required by a provision in any
Rent Restriction Act, then the Court surely has the further discretion
to condone the default and extend the time for payment or deposit and
such a discretion is necessary implication of the discretion not to strike
H out the defence. We may only refer in this connection, to three earlier
B.P. KHEMKAPVT. LID. v. B.K. BHOWMICK [NATARAJAN, J.] 571

decisions of this Court. Shyamcharan Sharma v. Dharamdas, [1980] 2
A
SCR 334 is a case which arose under the Madhya Pradesh Accommo-
dation Control Act, 1961. Santosh Mehta v. Om Prakash and Anr.,
[1980] 3 SCR 325 and Ram Murti v. Bhola Nath and Another, [1984] 3
SCR 111 were cases which arose under the Delhi Rent Control Act,
1958. The Rent Control Act of Madhya Pradesh as well as the Rent
Control Act of Delhi provided that if a tenant failed to make payment B
or deposit as required by the Section the Controller may order the

l
defence against eviction to be struck out and proceed with the hearing
of the application. In all these cases it has been uniformly held that the
powers of discretion vested in the Rent Controller give him further
-.right to condone the delay in deposit or payment of rent for the subse-
quent months.
c
In this case the default was not one of non-payment of the
arrears or the rent for the subsequent period. The default pertained to
belated payments of rent for two months and was, therefore, a default
in the technical sense than in the real sense and hence of an inconse-
quential nature. Having regard to the intendment of the Act and the D
nature of the provisions it can never be said that the defaults were of
such a serious nature· as to warrant the court refusing to exercise its
discretion and to feel constrained to strike out the defence. Such being
the case the answer to the second question has also to be in favour of
the appellant. The subordinate courts and the High Court were in
error in holding that the delayed payment of rent for the months of E
September 1968 and March 1969 constituted such defaults as neces-
sarily warranted the striking out of the defence under Section 17.

~- In the light of our conclusions the appeal succeeds and will
accordingly stand allowed. The suit filed by the first respondent will
---{ stand dismissed. F

In so far as the petitions for impleadment are concerned, though
we heard the arguments of the counsel for the parties, we do not think
their presence is necessary in the appeal and hence both the petitions
are dismissed.
G
The parties will pay and bear the respective costs.

A.P.J. Appeal allowed and Petitions dismissed.