PARAS RAM Vs. SUDERSHAN KUMAR KHANNA

JUDGEMENT

(1.) A Division Bench of this Court in Civil Revision Petition No. 131 of 1980 and Civil Revision No. 1 of 1981, on a reference made by a single Judge of this Court in Civil Revision Petition No. 131 of 1980 based on the pronouncement of the Hon'ble Supreme Court in (Ganesh Prasad Sah Kesari v. Lakshmi Narayan Gupta) reported in AIR 1985 SC 964 interpreting the word "shall" in the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 by its order dated June 5, 1986 formulated the following question of law :- "Whether the word "shall" occurring in S.12(4), Jammu and Kashmir Houses and Shops Rent Control Act, 1966 is directory or mandatory and in default of payment of monthly rent by the tenant, the striking out of the defence is inevitable." And referred the matter for consideration by a larger Bench to have an authoritative pronouncement on the point, hence the case is laid before the Full Bench.

(2.) The necessity for the reference arose because of the judgement of their Lordships of the Supreme Court in the case of Ganesh Prasad Sah Kesari (AIR 1985 SC 964) (supra) interpreting the word "shall" as directory as against the consistent view taken by this Court in different authorities interpreting the word "shall" occurring in S.12(4), Jammu and Kashmir Houses and Shops Rent Control Act, 1966 (for short hereinafter called the Act) as mandatory. The Apex Court while dealing with the above noted case interpreted the words with reference to S.11-A, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (3 of 1947). It is to be seen whether the provisions of the Bihar Act are in pari materia with the provisions of the Jammu and Kashmir Act, to find out the same it is necessary to reproduce the two provisions. Section 11-A of the Bihar Act runs as follows :-

(3.) A comparative study of the two provisions will show that the words necessary to interpret the word "shall" and its import in the two Acts are used in the similar words or not. The Bihar Act uses the following words :- "The Court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent at such rate as may be determined 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." In the Jammu and Kashmir Act under S.12(4), the following language is used :-