MANMOHAN KAURversusSURYA KANT BHAGWANDI

                         MANMOHAN KAUR                                        A
                                    v.
                   SURYA KANT BHAGWANDI

                          OCTOBER 4, 1988

 [SABYASACHI MUKHARJI AND S. RANGANATHAN, JJ.]                                B

      Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982:
Section 13-'Defence against ejectment' striking off by court-when
permissible-Failure to deposit rent within stipulated time-Delay-
Explanation of-Acceptable to court-Court must not strike out
defence.
                                                                              c
       During the peudency of the suit for eviction of the defendant·
appellant from the shop-room under s. 11 of the Bihar Building (Lease,
Rent and Eviction) Control Act, 1982 the Trial Court passed an order
directing the appellant to deposit rent month by month. The appellant
having defaulted in the payment of rent for two months, the res·              D
pondent-landlord filed a petition under s. l3 of the Act for a direction to
strike out the defence of the appellant. The appellant's defence was that
it was a case of genuine mistake. The Trial Court heid that the excuse
for non-payment was not bona fide and that there was unexplained
delay to deposit the rent. The Trial Court therefore struck off the
appellant's defence. The High Court dismissed the revision application        E
of the appellant in limine.

      Disposing of the appeal, it was,

      HELD: (1) The Act, as the preamble states, is inter alia 'to pre-
vent unreasonable eviction of tenants'. Therefore, though it is for pro-      F
tection of tenants, the Act is enjoined to regulate the rights and the
duties of the landlords and the tenants. [413C]

      (2) Tbe Court must from a proper perspective judge the question
whether the delay or failure to deposit the rent In terms of order under
section 13 of the Act has been properly explained, and if that delay has      G
been properly explained, then the court has a discretion to excuse the
delay, but If the delay has not been properly explained then the court
has no discretion. Such a construction would be a harmonious render·
ing of the language of section 13 to the claim for justice In each particu-
lar case. [414B-C]
                                                                              H
                                   409
     410         SUPREME COURT REPORTS                 [1988] Supp. 3 S.C.R.

A          (3) In construing the question whether the delay has been reason-
     ably explained or not, the court in the scheme of the administration of
     justice must take a constructive and purpose-oriented approach. If it
     does, then the element of discretion comes into play though not in the
     form of directory or mandatory provision but in considering whether
     the delay was properly explained or not. [414C.-D] -
B
           (4) In the facts of this case, there is good deal of justification for
     the delay and the delay has been properly explained. The Trial Court,
     therefore, committed an error resulting in miscarriage of justice. The
     High Court in not interfering with this miscarriage too committed an
     error of jurisdiction. [414D;E:r
c         Ganesh Prasad Sah Kesari v. Lakshmi Narayan Gupta, [1985] 3
     S.C.R. 825; Mrs. Manju Choudhary v. Dulai Kumar Chandra, [1988] 1
     SCC 363 and M/s. B.P. Khemka Pvt. Ltd. v. Birendra Kumar
     Bhowmick, [1987] 2 SCC 407, referred to.

D          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3740
     of 1988.
                                  '
          From the Judgment and Order dated 7. 7.1988 of the Patna High
     Court in C.R. No:i.67 of i988.

 E         Dr. Shankar Ghosh and D.P. Mukherjee for the Appellant.

           H.K. Puri for the Respondent.

           The Judgment of the Court was delivered by

F         SABYASACHI MUKHARJI, J. Special leave granted. The
     appeal is disposed of by the judgment herein.

         This is an appeal from the judgment and order of the High Court
   of Patna (Ranchi Bench} dated 7th of July, 1988. By the aforesaid
   order the High Court confirmed the striking off of the defence of the
 G appellant in a suit for eviction under the Bihar Building (Lease, Rent
   and Eviction) Control Act, 1982 (hereinafter called 'the Act') on the
   ground of personal necessity and change of the nature of the business
   by the appellant etc. The plaintiff-respondent filed a suit for eviction
   against the defendant-appellant from the shop-room under Section 11
   of the said Act on the aforesaid grounds. The appellant filed the writ-
.H ten statement contestin_g the said suit. The case of the appellant was
               MANMOHAN KAUR v. S.K. BHAGWANDI [MUKHARJI, J.l               411

        that the respondent-landlord's case was false and a pretext for re-
                                                                                    A
        letting the premises for much higher rent after her attempt to increase
        rent did not succeed. It was further alleged that the landlord had suffi-
        cient alternative accommodation which would not entitle him to get a
        decree. It was denied that there was no change of business carried on
        apart from those business permitted by the contract of tenancy. There
        was, however, no such bar in this case. On 4th of February, 1983, the B
        respondent asked for an order under Section 15 of the said Act against
        the appelll)nt for deposit of arrears and current rent. The Trial Court
        by its order on that date directed the appellant to deposit the arrears, if
        any, and continue to deposit rent month by month in future by 15th
-<.,.   day of the month next following. It was stated that the appellant
        accordingly got challans passed for 2 months together each time and
        deposited the amount in time in the court treasury throughout. How- c
        ever, through some inadvertence, rent for the months of November
        and December, 1986 could not be deposited. It was alleged that the
        appellant had genuine belief that his son had deposited the same. It
  ·-    was further the case of the appellant that neither the landlord nor any
        court of law ever pointed out this non-deposit to the appellant. The D
        appellant further asserted that the challans for subsequent period hav-
        ing been passed without any objection, the appellant got the impres-
        sion which was bona fide that he had complied with the earlier order of
        the court and continued to be in bona fide occupation of the premises
        in question. In the premises, the respondent filed a petition under
        section 15 of the_Act in the trial court for a direction to strike out the E
        defence on the ground that the appellant failed to deposit rent for the
        months of November and December, 1986. The appellant contested
        the application, inter alia, contending that the rent for the said period
        had been duly deposited and asked for a report from the Accounts
         Branch of the court. This, according to the appellant, was because the
        challan for that period was found missing from the record of the appel- F
        la11t as asserted by the appellant. It later transpired on the challans
        being produced that the rent for the months of November and
        December, 1986 had not been actually deposited. The appellant's case
        was and throughout has been that this was a mistake. The appellant,
        therefore, got a fresh challan passed on or about 9th March, 1988 and
        deposited the amount. It is further the case of the appellant that all G
        subsequept amounts have been duly deposited for all subsequent
        periods. The respondent made his application, as mentioned herein-
        before, under section 15 of the Act for striking out the defence. On
        27th March, 1988, the learned Subordinate Judge-III, Jamshedpur
         found that the rent for the months of November and December, 1986
         had not been deposited. The defence against the ejectment, therefore, H
    412         SUPREME COURT REPORTS                [1988] Supp. 3 S.C.R.

  was struck off. It was contended before the learned Subordinate Judge
A that the time to deposit the rent from time to time, though originally
  granted for two months had expired, could be extended. On the other
  hand, on behalf of the respondent, it was urged that the defence was
  bound to be struck off since it was apparent thafthe amount had not
  been deposited. It was asserted that the defence of the appellant that
B the amount had been deposited, and the assertion to which the appel-
  lant struck was obstinate and wrong and, therefore, not bona fide.
  Taking view of these evidence, the learned Subordinate Judge. came to
  the conclusion that the excuse for non-deposit was not bona fide and
  there was unexplained delay to deposit the rent for the months of
  November and December, 1986 as enjoined by the order of the court,
  and, therefore, under section 15 of the Act, it was obligatory for the
c court to strike off the defence. The High Court was moved in revision.
  The High Court dismissed the application on the 7th July, 1988 in
  limine. Hence, this appeal.

          Section 13 of the Act enjoins making of an application for de-
D   posit by a tenant in suits for ejectment. The said section provides as
    follows:     ·

               "13. 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 land-
E              lord 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
               parties to be heard, may make order for deposit cif rent at
               such rate as may be determined month by month and the
F              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 in the
               fifteenth day of the next following months, 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
0              defended the claim to ejectment. The landlord may also
               apply for permission to withdraw the deposit 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."
           MANMOHAN KAUR v. S.K. BHAGWANDI [MUKHARJI, J,j             413

         ·In case an order of a deposit is made, the court'may pass an order A
    to deposit the rent on a particular date and/or on 15th day of the
    following month and if such a deposit is not made t~en tile court shall
    order the defence against the ejectment to be struck out and the tenant
    be placed in the same position as he had not defended the claim for
    ejectment. The question is if the deposit is not made, the provision of
    the section mandates the court to strike out the defence. The question, B
    therefore, arises whether there is any discretion for 1the court in case
    the deposit is not made within the stipulated time. Indisputably, in this
    case the deposit had not been made. The section is clear in its terms.
    The Act, as the. preamble states, is inter alia 'to prevent unreasonable
    eviction of tenants'. Therefore, though it is for protection of tenants,
    the Act is enjoined to regulate the rights and the dtlties of the land·
    lords and the tenants. In the facts of this case, as found by the court, c
    there was failure to deposit the rent within the stipulated time. The
    actual problem in the instant case is whether in a case of a genuine
    mistake, which, we must hold-there was in this case-does the court
    have jurisdiction to extend the time and treat the deposit subsequently
    made as properly made?                                                    D

           In Ganesh Prasad Sah Kesari & Anr. v. Lakshmi Narayan
    Gupta, [1985] 3 S.C.R. 825 this Court was concerned with the Bihar


-   Buildings (Lease, Rent and Eviction) Control Act, 1947 and Section
     llA thereof as it stood at the relevant time. The said section, like the
    present section 13, enjoins that 'the court shall order the defence E
    against ejectment to be struck out and the tenant be placed in the same
    position as if he had not defended the claim to ejectment'. This Court
    held that failure to comply with an earlier direction should not neces-
    sarily visit the tenant with the consequences. of his defence being struck
    off because there might be myriad situatio'ns in which default may be
    commited. The Court should, therefore, adopt such a construction as F
    would not render the court powerless in a situation in whch the ends of
    justice demand relief being 'granted. It was found in that case that the
    tenant had deposited all arrears of rent though there were some irre·
    gularities in making the deposit, 'but it was not of such a nature as to
    visit the tenant with the consequence o( striking off his defence. In that
    case, it was held that the defence should not be struck off and the G
    Court should also not consider the word 'shall' in the context of the
    section as mandatory but directory.

         In the ~ase of Mrs. Manju Cho.udhary and Anr. v. Dula/ Kumar
    Chandra, [19881 1 SCC 363 it was held that if there was 'unexplained
    delay' then the court is bound to strike off the defence. There was H
    414         SUPREME COURT REPORTS                 [1988] Supp. 3 S.C.R.

A observation that there is a duty cast on the court to strike off the
   defence if there is failure to deposit the rent in terms of the order of
   section 13 of the Act. The said observations would apply to the facts of
   this case and, therefore, the court must from a proper perspective
   judge the question whether the delay or failure to deposit the rent in
   terms of order under section 13 of the Act has been properly explained
B and if that delay has been properly explained, then the court has a
   discretion to excuse the delay, but if the delay has not been properly
   explained then the court has no discretion. In our opinion, such a
   construction would be a harmonious rendering of the language of sec-
   tion 13 to the claim for justice in each particular case. Therefore, the
   court should consider whether the delay has been reasonably
   explained or not. In construing that question the court in the scheme
C of the administration of justice must take a constructive and purpose-
 ' oriented approach. If it does, then the element of discretion comes
   into play though not in the form of directory or mandatory provision
   but in considering whether the delay was properly explained or not. In
   the facts of this case, we find that there is good deal of justification for
D the delay and the delay has been properly explained in the background
   of the facts and the circumstances of thP case. If that Is the position, the
   court should consider the question in that light. The trial court did not
   look at it from that ]Jerspective. The court,_ therfore, committed an
   error resulting in miscarriage of justice. The High Court in not in-
   teffering with this miscarriage of justice too committed an error of
E jurisdiction.

        In this connection, reference may be made to the observations of
  this Court in Mis B.P. Khemka Pvt. Ltd. v. Birendra Kumar
  Bhowmick and Anr., [1987] 2 SCC 407. There, the court was con-
  cerned with the default in payment under the West Bengal Premises
F Tenancy Act, i956 (as introduced by Ordinance 6 of 1967). There, the
  court had to consider the expresion 'shall' in section 17(3) of the West
  Bengal Act. It was held that the court's power was discretionary and in
  that case the High Court was of the opirtion that the delay of two
  months in payment of rent being of iechnical nature, the court should
  have exercised discretion and refused to strike off the defence. It was
G the view of the court that the words 'shall order the defence against
  delivery of possession to be struck out' occuring in section 17(3) of the
  West Bengal Act have to be construed as directory provision and not
  mandatory provision as the word 'shall' should be read as 'may'. The
  court expressed the view that such a construction was warranted
  because otherwise the intendment of the legislation as judged from the
H whole scheme in the preamble would be defeated and the class of
      1
          MANMOHAN KAUR v. S.K. BHAGWANDI [MUKHARJI, l.]              415

tenants for whom the beneficial provisions were made by the                   A
Ordinance in question in that case and the amending Act will stand
deprived of them. This Court observed that the court is vested with the
discretion either to order the defence to be struck out or not, depend-
ing upon the circumstances of the case in the interest of justice. There,
the Court found that the delay was technical in nature.
                                                                              B
       Therefore, the interest of justice which i!rthe paramount justifi-
cation of the administration of justice with the purpose of the Act,
compels us to hold that if the delay is explained then there is no delay
and the court in such a· case cannot strike off the defence. If, on the
other hand, the delay is not explained or the explanation is one which
is not acceptable to the court, then the court must strike out the            c
defence and there is no discretion. Read in that light, in our opinion,
the learned trial judge of the High Court committed an error in exer-
cising his jurisdiction. The orders of the High Court and the Trial
Court are set aside. The defence of the appellant is restored since all
the rents have been deposited. In view of the delay due to interruption
in the prosecution of the case, it is desirable, if possible, to dispose of   D
the trial within six months from today, particularly since the case has
been pending since 1975. The appeal is, therefore, disposed of accord-
ing! y. Ill the facts and the circumstances of the case and the conduct of
the appellant in taking an incorrect defence leading to subsequent
proceedings, the appellant is directed to pay all costs of this appeal
which are assessed as Rs. 1,500.                                              E

R.S.S.                                               Appeal disposed of.