LexSMT. BACHAHAN DEVI & ANR. versus NAGAR NIGAM, GORAKHPUR & ANR.
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[2008] 2 S.C.R. 424
SMT. BACHAHAN DEVI & ANR.
II.
NAGAR NIGAM, GORAKHPUR & ANR.
(Civil Appeal No. 992 of 2008)
FE~RUARY 5, 2008
(DR. ARIJIT PASAYAT AND
lOKESHWAR SINGH PANTA, JJ.).
Code of Civil Procedure, 1908:
C
Or. 41, r.25 - Power of appellate court to frame issues
and refer the same to trial court for trial or such issues and
findings thereon - HELD: Provision comes into operation when
appellate court comes to a conclusion that the court from
whose decree appeal is preferred has omitted to frame or try
D any issues or to determine any question of fact which appears
to appellate court essential for decision of suit on merits -
Once the appellate court comes to such a conclusion, it may,
if necessary, frame issues and refer the same to trial court -
But there is no compulsion on part of appellate court to do so
E as is clear from expression 'may' - However, once the matter
is referred to trial court, it is incumbent upon it to take additional
evidence and return the same to appellate court together with
findings thereon and reasons therefor -
Connotation of
expression 'may' and 'shall' occurring in the provision -
F Explained - Interpretation of Statute.
Interpretation of Statutes:
Expressions 'may' and 'shall' used in the same provision
- Connotation of - Code of Civil Procedure, 1908 -
Or. 41,
G r.25.
In an appeal filed by the defendants-appellants
against the decree of the trial court passed in a suit filed
by the plaintiff-respondent no. 1 for declaration of its title
over the suit land, the first appellate court allowed the
H
424
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SMT. BACHAHAN DEVI & ANR. v. NAGAR NIGAM,
425
GORAKHPUR & ANR.
application for amendment of the written statement and A
remanded the matter to the trial court. But, the High Court
set aside the order of the appellate court.
In the instant appeal filed by the defendants it was
contended for the appellants that the High Court failed to
consider that in case the first appellate court was of the 8
opinion that evidence was insufficient, the matter could
be remanded to the trial court in terms of Order 41 Rule
25 of the Code of Civil Procedure, 1908.
The question for consideration before the Court was: C
What is the position in law when both the expressions
"may" and "shall'' are used in the. same provision?
Dismissing the appeal, the Court
HELD: 1.1 Where the legislature uses two words
'may' and 'shall' in two different parts of the same b
provision prima facie it would appear that the legislature
manifested its intent on to make one part directory and
another mandatory. But that by itself is not decisive. The
power of court to find out whether the provision is
directory or mandatory remains unimpaired. [para 34]
~
[441-F, G]
.
1.2 The question whether a particular provision of a
statute is directory or mandatory cannot-be resolved by
laying down any general rule of universal application. F
Such controversy has to be decided by ascertaining the
_intention of the Legislature and not by looking at the
language in which the provision is clothed. And for finding
out the legislative intent, the Court must examine the
scheme of the Act, purpose and object underlying the.
provision, consequences likely to ensue or inconvenience G
likely to result if the provision is read one way or the other
and many more considerations relevant to ·the issues.
Mere use of word 'may' or 'shall' is not conclusive. The
ultimate rule in construing auxiliary verbs .like 'may' and
'shaH' is to discover the legislative intent; and the use of H
426
SUPREME COURT REPORTS
{2008] 2 S.C.R.
A words 'may' and 'shall' is not decisive of its discretion or
mandates. The use of the words 'may' and 'shall' may help
the courts in ascertaining the legislative intent without
giving to either a controlling or a determinating effect.
[para 12 and 33] [433-0, E; 441-0, E]
B
1.3 As a general rule, the word 'may' is permissive
and operative to confer discretion and especially so, where
it is used in juxtaposition to the words 'shall' which
ordinarily is imperative as it imposes a duty. Cases,
however, are not wanting where the words 'may', 'shall'
C and 'must' are used interchangeably. In order to find out
whether these words are being used in a directory or in a
mandatory sense, the intent of the legislature should be
looked into along with the pertinent circumstances. The
distinction of mandatory compliance or dirExcerpt shown. Read the full judgment & AI analysis in Lexace.