GANESH PRASAD SAH KESARI & ANR. versus LAKSHMI NARAYAN GUPTA

Citation: [1985] 3 S.C.R. 825 · Decided: 18-04-1985 · Supreme Court of India · Bench: D.A. DESAI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

·GANESH PRASAD SAH KESARI & ANR. 
v. 
LAKSHMI NARAYAN GUPTA 
April 18, 1985 
[D.A. DESAI AND RANGANATH MISRA, JJ.J 
The Bihar. Buildings (Lease, Relit and Eviction) Control Act 1941, Sec-
tion llA. 
Suit for eviction of tenant for default in payment of rent-Faliure of tenant 
to comply with court's order to depoJit rent-Striking off defence oganist evic-
A 
B 
c 
llon-Whether legal. 
D 
Interpretation of Statutes : 
Statute-Words 'may' and 'shall' used in different parts of a provlsion-
Whethermandatory or directory-Ascertainment of by the Court. 
Words & Phrases : 
'Shall order the defence against ejectment be struck ojf'-Meatiing of-
Bihar Building (Lease, Rent and Eviction) Control Act 1941, Secttori 11 A. 
The respondent-plaintiff filed a suit for eviction against the appe11ant-
defendant on the ground that the tenant committed default in payment of 
rent. The defendant contested the suit contending that he was not in dcfau1t. 
An application was filed by the respondent-landlord for a direction under Sec. 
llA of the (Bihar Buildings Lease, Rent and Eviction) Control Act, 1947 to 
the defdndant-tenant to deposit the rent in arrears ; and a further direction 
to deposit the future rent from month to month. The trial judge ordered the 
appeltant to deposit the rent in. arrears at the rate of Rs. 32 Per month and 
thereafter to continue -to deposit the rent at the rate of Rs. 12.20 per month. 
ThC defendant preferred 3. revision petition which was dismissed. 
~ 
The suit was fixed for bearing. The tenant moved an application for . 
adjourn.meat which was rejected, the plaintiff witnesses were examined and the · 
suit was decreed ex-parte. 
E 
F 
G 
On an application moved by the defendant praying for relief under 
H 
A 
B 
c 
D 
E 
F 
G 
H 
826 
SUPREME COURTS REPORTS 
(19g$) 3 s.c.ti.. 
Order JX Rule 13 CPC, the _trial judge set aside the cx-parte decree and set 
down the suit for proceeding further from the stage it was decreed ex-parte. 
The respondent-landlord moved an application contending that as there 
was irregularity and delay in depositing the rent, the defence of the appellant 
be struck off for his failure to strictly comply with the order made under 
Section 1 lA, but the trial judge rejected it on the ground that the earlier order 
was made prior to ibe date on which the suit was decreed ex-parte; on ihe set-
ting aside of the ex-parte decree and revival of the suit, the order giving 
directions for deposit of future rent does not per se revive and therefore even 
if there was some default on the part of ths tenant in depositing the rent, his 
defence cannot be struck off. 
- The respondent-landlord moved a revision petition before the High 
Court. A Division Bench interpreted the expression 'shall' in Sec. l IA of 
thC. Act, as mandatory, and finding that there was default in making the 
deposit for the 
months mentioned in the landlords' application, it could 
be shown that there was non-compliance with the order passed under Sec. llA. 
and therefore 'the tenant will have to bear the consequence thereto.' It further 
held that 'once a default is found, the courts are powerless ; the statutory 
consequences 
are bound to follow,' It made the 
rule 
absolute and 
set aside the order of the trial judge refusing to strike off the defence of the 
appellant and directed the trial judge to note that the defence of the appellant 
would be deemed to have been struck off due to non-compliance of the order 
passed under Section llA. 
Allowing the Appeal to this Court, 
HELD : 1. (i) Failure to comply with an earlier direction should not 
necessarily visit the te'lant with the consequence of his defence being struck 
off because there might be m)riad situations Jn which default nlay be com-
mitted, The Court should adopt such a construction as would not render the 
court powerless in a situation ia which ends of justice demand relief being 
granted. [835 E-F] 
In the instant case, the High Court had adopted a co9struction of 
Section llA of the Act which would defeat the beneficient nature of-the pro-
vision. The decision of the High Court is set aside because it proceeds on the 
basfa that ollce there is default, the tenant must suffer the consequences of 
it. The trial judge held that once a suit ended in an 
ex-par~e decrcC the 
earlier direction for making neceseary deposit given under Sec. llA would 
remain ineff;ctive ~ven if the ex-parte decree is set aside and would nOt re-
vive, was rightly disapproved
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