Bireswar Chowdhury vs Chandra Nath Basu

Chatterjee, J.—This Second Miscellaneous Appeal arises out of a petition by the tenant Defendant with respect to execution of the order of the Controller u/s 5 of the Thika Tenancy Act. It is not disputed that the Defendant is a thika tenant nor is it disputed that an order was passed by the Controller u/s 5 of the Thika Tenancy Act by which the tenant was directed to deposit within thirty days a sum of Rs. 915-12, another sum of Rs. 457-14 and a third sum of Rs. 16. This order was passed by the Controller on September 30, 1955.

The Court remained closed as well as the office of the Thika Controller for the Puja vacation and reopened on November 17, 1955. The Petitioner'' case is, on November 17, 1955, he paid the money to his lawyer, Mr. H.K. Chatterjee and the Chief Ministerial Officer of the Court signed the challan. Thereafter he went to the Treasury and stood at the queue for depositing the money. November 17, 1955 is the date on which the Court reopened and, therefore, there was rush of work on that date and challan could not he obtained from the Chief Ministerial Officer of the Court before 11-30 a.m. By that time the queue was very long at the Treasury and he had to wait for the whole day but even then could not deposit the money. On the next day he deposited the money. Thereafter the Controller passed an order that the payment be noted in the Books of the Court. The opposite party landlord thereafter filed an application before the Controller for vacating- the order as the money was deposited out of time. The Controller, who ordered on September 30 and who directed that the payment be noted, was transferred and the matter came up before his successor-in-office. The said petition of the landlord was dismissed on January 11, 1956. holding that the landlord might take any objection he liked at the execution stage and his objection was rejected as misconceived. Thereafter the landlord started execution and the tenant opposed that execution and the matter came up on March 25, 1957 before Sri P.K. Chatterjee and. according to him, the deposit could not be made because of Treasury Rules on the 17th and, therefore, it was made on the 18th and according to him. lie followed a decision of this High Court G.M. Hay and Another Vs. Bonomali Mullick, and the petition was dismissed. Against that order an appeal was taken to the District Judge which, was registered as Misc. Appeal No. 341/57. The District Judge, however, held that the deposit was not within time and. therefore, the objection case was directed to be dismissed and the execution case was directed to be proceeded with. Against that a Second Miscellaneous appeal has been filed in this Court and also a petition under Article 227 of the Constitution.

As there is no provision for a second appeal against the order of a District Judge under the Thika Tenancy Act, the Second Miscellaneous Appeal must be dismissed. I, therefore, proceed to consider the application under Article 227 of the Constitution. It has been urged on behalf of the Petitioner (1) that the provision of Section 6 of the Thika Tenancy Act is not mandatory but directory; (2) the Controller who passed the order on November 30. and who signed the challan on November 18. knew fully well the facts of Mie case and be not merely allowed the challan to be passed on the 18th but directed it to be noted in the book. If the learned Judge who himself passed the order understood the circumstances under which he could not put in the money on the 17th, it is not for others to say that the Treasury Rules did not prevent him from depositing. The third thing that has been stated is that the order of his successor in office on January 11, 1956 is final and binding between the parties and his observations that the point could be taken at the execution stage is a mere observation and the question is barred by the doctrine of res judicata.

With regard to the first question whether the provision is mandatory or directory, we must consider the other provisions of the Act also. Chapter II of the Thika Tenancy Act deals with the incidents of a thika tenancy. Section 3 deals with the ground on which the thika tenant might be ejected. Section 4 relates to notice. Then Section 5 relates to proceedings for ejectment. One of the grounds for ejectment is that the tenant had failed to pay-arrears of rent due to the landlord. If the landlord gets a decree for ejectment because of that ground u/s 3, Section 6 enacts that if the tenant is directed to be ejected on the ground that he has failed to pay arrears of rent due to the landlord, such order shall not be executed if the amount is deposited within thirty days from the date of the order. Section 6 begins by saying "stay of ejectment for arrears of rent, if the amount of arrears and damages are deposited with the Controller." Therefore, Section 6 is merely directory so far as stay for thirty days unconditionally and if the amount is deposited thereafter, the Controller has to pass a final order in the matter. Section 6, therefore, contemplates that the Controller will, at the beginning, grant a stay for thirty days and the Controller is, thereafter, expected to pass other orders which necessarily means that the Controller has got to make some final order. The question is supposing the same deposit is not made within thirty days, has the Controller any power to extend the time and accept it. There is no doubt that if the provisions of Section 6 are mandatory, the Controller has no power; if the provisions are directory, the Controller has powers.

One thing is undisputed that the Controller does not, because of the order u/s 6 lose his seisin over the case. He has yet to pass final orders, or, in other words, he has yet to dismiss the petition because of non-deposit, or he has yet to execute the order, put the party in possession. Therefore, it cannot be said that the Controller is functus officio after an order is passed u/s 6 of the Thika Tenancy Act. The Controller has jurisdiction in the matter after the order u/s 6 of the Act, whether the money is deposited or not.

Hence if the provisions of Section 6 of the Act and the time limited in Section 6 are mandatory, the Controller cannot but proceed to execute the decree. If, on the other hand, that is not mandatory, he has power to extend the time under certain circumstances which the Court may think fit and proper. If it is directory, it means that the Controller is directed by the legislature to ask the tenant to deposit within thirty days and ordinarily he is expected to obey the provisions of the statute, but it would not be ultra Tires of his powers if he extends the time. Therefore, I have to examine whether the provisions are directory or mandatory. In order to question whether these provisions are imperative or directory, we have to consider the rules of construction and one of them is that the provision is not mandatory unless non-compliance with it is made penal. (Refer to Jagan Nath Vs. Jaswant Singh and Others, ). An enactment which is mandatory in form might in substance be directory and the use of the word ''shall'' does not conclude the matter. This has been held in the case of Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, . In considering that matter another question that may also be considered is, if the statute is construed as being mandatory, the result would involve general inconvenience or injustice to innocent persons and would not promote the real aim and object of the enactment, then such an intention of construing the statute as imperative should not be attributed to the legislature. (Refer to Maxwell-9th Edition p. 374.) With these rules of construction in mind we have to refer back to the Thika Tenancy Act.

The first thing is clear that the word "shall" has been used and because the word "shall" has been used, it would ordinarily mean imperative. The question is why should it be considered directory. The purpose of the Act was, as the preamble says "whereas it is expedient to make better provision relating to the law of landlord and tenant in respect of thika tenancies in Calcutta" and then the law is in consonance with the policy of the legislature at the present time to improve the conditions of the tenants without detriment to the rent payable to the landlords. The preamble to the statute, according to the Supreme Court in the case of A. Thangal Kunju Musaliar Vs. M. Venkitachalam Potti and Another, , is a good means of finding out its meaning. Therefore, I am entitled to look into the preamble to see what was the purpose of the Act. The purpose would also be clear from Section 5 and Section 6 where the legislature intervened and directed that even on the ground of default, no decree shall be executed if the money is deposited within the time. The substance here, in accordance with the preamble and in accordance with the purpose of the Act, is the depositing of the money within a reasonable time and in no sense time is the essential part in the construction of this part of the statute. On the other hand, if time ia considered to be the essential part of this statute, then it may work general inconvenience and injustice to innocent person. Justice, in the present case where a man was ready with his money, handed over the money to his lawyer and for reasons beyond the control of his lawyer, the money could not be deposited, is with the tenant Petitioner. If the time is considered to be the substance of this enactment, then the purpose and the object of the enactment would be, if not defeated, substantially affected by such interpretation and I, therefore, most respectfully agree with the view expressed by Maxwell as noted above.

Considering the matter from a second point of view, namely, whether the provision is mandatory or not. the question of noncompliance comes in. Section 6 does not speak anything about it. If Section 6 had a further clause that in case of non-compliance the decree shall be executed, I could not hold that it was directory. I have not the slightest doubt that in that case it would be mandatory had the matter been left there. Non-compliance has not been made penal by the statute. Therefore, I most respectfully follow the decision of the Supreme Court in Jagannath v. Jaswant Singh (supra) and I hold that the provision i" directory but not mandatory.

If the provision is directory then the Controller being in seisin of the matter, had powers to extend the time. I must make it clear that when the Controller extends time he must do that with very great care and caution. This direction given by the legislature is a direction intended to be followed and not intended to be abused or discarded. Keeping that in mind the Controllers should exercise their powers only when non-exercises would work very serious injustice and the person who comes to the Court with a prayer for exercise of such powers is an innocent person. I, therefore, hold that the provisions are directory and the Controller can only grant time for relief to innocent persons.

If that is my view, it is not necessary for me to decide any other point but I just express my opinion in a very few words about it. With regard to the second point it has been stated that the Controller merely directed that the acceptance be noted. Had it been mandatory, the noting of it would not have given any right against ejectment and in that view of the matter I would agree with the submissions of the learned advocate for the Respondent but had it been directory in that case the Court had no powers to do it. It has been suggested at the Bar that the tenant did not come to the Court with the money nor did he take the permission of the Court on the 17th so he is not innocent; but the Judge who passed the order on the 17th was presiding over the court on the 18th also. If he passed it on the 18th, he must be expected to know under what circumstances he was passing the order and it is not for anybody else to say that the tenant was not innocent. This contention of the advocate for the landlord is rejected.

Finally, with regard to the order of January 11, 1956, I am afraid I cannot agree with the learned Controller that this point should have been decided at the execution stage. If the point was raised, it was his duty to decide it then and there. There is no special provision relating to powers of the executing authority but the point which touches interpretation of the Section 6 should have been decided at that stage and once the order is made, it would be binding between the parties. I say further that even though the learned Judge used the words "the petition is "rejected," he rejected it without considering it on merits. In that view of the matter I cannot hold that it is resjudicata or that the doctrine of finality applies.

The result is that the Second Appeal is dismissed and the application under Article 227 is allowed. I direct each party to bear his costs throughout. It must be deemed that the money has been accepted by the Court and, therefore, no further execution is maintainable.

As I have held that no appeal is maintainable, the cross objection is also not maintainable. The Cross objection is, therefore, dismissed without costs.