Mangat Ram Roshan Lal vs Harbans Lal

I.K. Kotwal, J.—Decision of this revision petition turns upon the interpretation of Sub-section (4) of Section 12 of the Jammu & Kashmir

Houses and Shops Rent Control Act 1966, hereinafter to be referred to as the Act which reads as under:

(4) If the tenant contests the suit, as regards claim for ejectment, the plaintiff landlord may make an application at any stage of the suit for order on

the tenant-defendant to deposit month by month rent at a rate 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 an order for deposit of rent at such rate, month by month, and the 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 by the fifteenth

day of the next following month, 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 defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without

prejudice to his right to claim decree for ejectment and the Court may permit him to do so.

The petitioner herein is the defendant in the suit, out of which this revision petition has arisen, against whom the trial Court has on the application

of the respondent, the plaintiff in the suit, issued an order under Sub-section (4) of Section, 12, directing it to deposit the arrears of rent from it for

the month of November 1981 within fifteen days from the date of the order, and to continue depositing the monthly rent by fifteenth day of every

month following the month for which the rent may fall due after November 1981. This order has been assailed on the ground that it has been

passed by the trial court like an automaton, without even being conscious of the fact that it had discretion not to pass such an order in the

circumstances of a given case. The use of the word ""may"", it was argued, made it abundantly clear that the Court was not bound to issue a

direction to the defendant tenant to deposit the rent in the Court, merely because an application in that behalf was moved before it by the plaintiff-

landlord, but it had a discretion not to issue the same in the peculiar circumstances of a given case, the tenant not being in arrears, being always one

of such circumstances. The petitioner not being in arrears when the impugned order came to be passed, the Court, it was contended, ought to have

exercised its discretion in its favour and declined to pass such an order against it.

On behalf of the respondent, however, it was urged that Sub-section (4) is a salutary provision, the object whereof is to ensure regular payment

of monthly rent to the landlord during the pendency of the suit for ejectment, including payment of the arrears of rent due from the tenant if any. In

case the Court were to have a discretion in making such an order when approached in that behalf by the landlord the very object of this provision,

it was argued, would stand defeated, adding, that in the context in which the word ""may"" is used in Sub-section (4), it has to be interpreted to

mean ""must"". It was further contended that failure to make the deposit in terms of the order passed by the Court under Sub-section (4) would

create an indefeasible right in the landlord to have the tenant's defence to his ejectment struck out, as such, no intention could be attributed to the

legislature to invest the Court with a discretion to take away this valuable right of the landlord. In any event, the point sought to be raised now not

having been raised before the trial Court and the trial Court, as such, not having been provided with an opportunity to apply its mind to the facts of

the case, whether or riot to exercise its, discretion in favour of the petitioner, assuming that it had any, no fault. It was argued, could be found with

the impugned order.

The words used in a statute, it is well settled, must be given their natural meaning. If the language of a statute is clear and unambiguous, the

Court must give effect to it, unless there are strong and obvious reasons to the contrary. Where the legislature has used two different words in the

same provision, which convey different meanings, the Courts will have to presume that it really intended to say what is ordinarily meant by those

words. Frustration of the object for which a provision is enacted is no doubt a factor to be taken into consideration in construing a word used in a

statutory provision, but the object must be clear and certain, and the word used in the provision cannot be given a meaning different from its

ordinary meaning to give effect to the supposed intention of the legislature in achieving that object.

Applying these tests to the instant case, it cannot but be held that ordering the tenant to deposit rent in the Court, is not obligatory on the Court,

but is merely discretionary with it in terms of Sub-section (4). The word ""may"" used in the sub-section, if given its natural meaning, is bound to give

rise to this inference. That apart, even the rule of achieving the object of the legislation cannot be applied in interpreting the word ""may"" occurring in

Sub-section (4) to mean ""must"" or ""shall"". The object of the sub-section is no doubt to ensure regular payment of rent to the landlord, during the

trial of the suit, nevertheless, the provision cannot be construed to provide an additional ground of ejectment to him during the pendency of the suit.

The Act provides protection to tenant against his eviction at the sweet will of his landlord. Section 11 restricts the grounds of eviction of a tenant

and in that sense creates exception to the general provisions in the Transfer of Property Act which deal with eviction of tenants. Sub-section (4)

casts an obligation on the Court to strike out the defence of the tenant, if he fails to deposit the rent within the prescribed time, when, ordered to do

so by the Court under the sub-section; howsoever strong may be, reason for not doing so. A landlord who otherwise may not have any ground,

for evicting his tenant, may, on the interpretation sought to be placed fey the learned counsel tor the respon- dent on Sub-section (4), acquire one

during the pendency of the suit on the failure of the tenant to make the deposit in terms of Sub-section (4). The expression ""the Court shall order

the defence against ejectment to be struck out"" occurring in the sub-section, leaves no discretion with the Court in striking out the tenant's defence,

even if he has an excellent reason for not depositing the same within the prescribed period. Even a day's delay in making the deposit, and that too

for reasons beyond his control, is bound to play havoc with the tenant. The intention of the legislature, therefore, could, never have been to provide

an additional shot in the arm of the landlord in securing the eviction of his tenant, howsoever weak his case otherwise may be. The legislature used

the word ""may"" when it spoke of making an order for depositing of the rent, but it used the word ""shall"" when it spoke of striking out the defence

of the tenant. Keeping in view the plain meaning of these words, as also the object of Sub-section (4), it is only reasonable to presume that the

legislature advisedly used these two words to convey different meaning at two different places in the same provision, which dealt with two different

contingencies. It is not consequently possible to hold that it intended to convey a meaning different from their ordinary meaning. I am, therefore,

clearly of the view that Sub-section (4) gives a discretion to the Court in ordering the tenant to deposit the rent in the Court.

Equally untenable is the other ground that by not interpreting the word ""may"" as ""must"", a statutory right of the petitioner will be taken away. This

right is dependent upon the order of the Court which in its discretion it, may or may not pass under Sub-section (4) in the circumstances of the

case. Law does not envisage a right depending upon the discretion of the Court. If a party has a right, the Court has no discretion to refuse it to

that party.

Viewed thus, the circumstance that the tenant has been regular in paying the rent and is not in arrears thereof, when an application is moved by

the landlord for ordering him to deposit the monthly rent, is a relevant factor which has to be considered by the court in exercising its discretion in

favour of the tenant, though it may not be the only circumstance to be taken into con- sideration in such cases. What the court has to ensure is the

regular payment of rent to the landlord and not to provide to him an additional ground of his tenant's ejectment. If in the circumstances of a given

case, the Court is satisfied that the tenant will regularly pay the rent to the landlord, even in the absence of an order from it in that behalf, it shall not

be bound to pass such an order in exercise of its powers under Sub-section (4), merely because an application in that behalf has been moved by

the landlord.

Even so, the revision petition must fail because this point was never raised before the trial Court and consequently it was never called upon to

exercise its discretion one way or the other. On the other hand the point raised before it was that the Court had no jurisdiction to order the

petitioner to deposit monthly rent when it was not in arrears. This plea was rejected by the trial Court, and on the plain language of Sub-section (4)

rightly so. The revision petition is accordingly dismissed, but in the circumstances of the case without any order as to costs.