KURBAN HUSSEN SAJAUDDIN Vs. RATI KANT NILKANT

JUDGEMENT

(1.) THE short question of law which arises for our decision in the present civil revision application is whether the word "may" used in S. 12 sub-sec. (3) (a), of Bombay Act No. 57 of 1947* means "shall", or whether it is used in its usual enabling sense and it gives discretion to the Court either to pass a decree for eviction or not. This question arises in this way. The petitioner is the tenant of the premises in suit. Notice was given by the opponents to the petitioner on 3-5-1954 calling upon him to vacate the premises on two grounds. It was alleged that the petitioner was in arrears as to rent and that the opponents wanted the premises bona fide for their own personal use. The petitioner denied the opponents' case that the opponents needed the premises bona fide for their personal use; it was urged on his behalf that he was ready and willing to pay the rent. The petitioner also disputed the validity of the notice given by the opponents. The learned trial Judge found that the notice given by the opponents was valid. He also held that the petitioner was ready and willing to pay the standard rent. The plea made by the opponents that they needed the premises bona fide for their personal use was rejected by the learned trial Judge. In the result, the learned trial Judge held that a decree for ejectment could not be passed against the petitioner.

(2.) IT appears that the petitioner paid to the opponents Rs. 125 on the 28th of August 1954 and he deposited in the trial Court a further amount of Rs. 135 on the 24th of August 1955. When this deposit was made the petitioner was not in arrears as to rent at all. During the course of the trial the petitioner deposited another amount of Rs. 147 on the 8th of November 1955. The learned trial Judge took into consideration these payments and held that the opponents were not entitled to eject the petitioner. The opponents preferred an appeal against this decree and it was urged on their behalf before the lower appellate Court that on facts admitted there was no discretion in the learned trial Judge to refuse to pass a decree for ejectment in favour of the landlords. It is not disputed that the petitioner was in arrears in respect of the payment of rent from the 1st of October 1952 to the 1st of July 1954. It is also common ground that the petitioner did not pay up the arrears within one month from the date of the notice given to him by the opponents. The opponents' argument was that under S. 12 sub-sec. (3) (a), which has come into force on the 31st of March 1954, it was the duty of the learned trial Judge to pass a decree, for ejectment against the tenant, and that there was no jurisdiction in the Court to grant relief against eviction to the tenant on equitable considerations. This argument has been accepted by the learned District Judge. He has held that when S. 12 (3) (a) provides that, in cases falling under the said sub-section, the Court "may" pass a decree for eviction, Legislature really means that the Court "shall" pass a decree *the short title of this Act is the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947-Ed. for eviction. On this construction of S. 12 (3) (a) the lower appellate Court has set aside the decree passed by the learned trial Judge and has decreed the opponents' suit. The only point which Miss Jagtiani has raised before us in the present revisional application is that the lower appellate Court has not properly construed S. 12, sub-sec. (3) (a ). Her argument is that the word "may" used in this subsection is used in its usual enabling sense and that it gives discretion to the Court either to pass a decree for ejectment or not. According to Miss Jagtiani, it would not be fair or reasonable to hold (that in the context of S. 12 (3) (a) the word "may" introduces an element of compulsion and means in effect "shall".

(3.) SECTION 12, sub-sec. (3) (a) provides that, where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-sec. (2), the Court may pass a decree for eviction in any such suit for recovery of possession. There is no dispute that this sub-section applies to the present proceedings and that the requirements of this sub-section are otherwise satisfied. If the requirements of this subsection are satisfied, is it open to the Court, acting on equitable considerations, to hold that a decree for eviction would not, and should not, be passed,] or is the Court bound to pass a decree for eviction as soon as it is satisfied that the requirements of this sub-section have been complied with?