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Second Appeal from Order No. 285 of 1967, decided on 2nd May 1968.

S. 15(3)‑Dismissal of appeal in limine without sending for records of case from Controller‑Mere irregularity of proce dure‑Not fatal to decision specially when no prejudice established to have been caused to appellant.

"Craies" on Statute Law, 6th Edn., p. 260 and Pandurang Narayan Adha v. Ramchandra R. Panditrao A I R 1930 Bom. 554 ref.

Rameshar Singh and another v. Sheodin Singh and another ILR12Al1.510rel.

Ch. Hameeduddin for Appellant.

Syed Ali Raza for Respondent.

Date of hearing : 2nd May 1968.

This second appeal from order calls in question the order of the Additional District Judge, Lyallpur, exercising powers of Appellate Authority under section 15 of the West Pakistan Urban Rent Restriction Ordinance, VI of 1959 (hereinafter called the Ordinance), passed in affirmance of the Rent Controller's order striking off the appellant‑tenant's defence under section 13(6) of the Ordinance, for default in compliance with the orders of the Rent Controller for deposit of arrears of rent by a particular date.

2. The main contention raised in the appeal is that under subsection (3) of section 15 of the Ordinance, it is incumbent upon the Appellate Authority to decide the appeal only after sending for the records of the case from the Controller and as it had not been so done while dismissing the appeal in limine, the non‑compliance with the mandatory provisions of law has the effect of nullifying the impugned decision. Learned counsel has laid stress on the word "shall" used in subsection (3) of section 15, which is reproduced below for reference:‑

"The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further enquiry as it thinks fit either personally or through the Controller."

Learned counsel argued that in absence of the records of the lower Tribunal, the Appellate Authority was not competent to decide the appeal and the absence of the record of the Controller had also prejudiced the appellant's case inasmuch as his application, for condonation of delay and for holding default in depositing arrears of rent as not wilful, was not before the Appellate Authority and no decision has been given on that aspect of the case. In support of his contention that the word "shall" is always mandatory and not directory, he has referred to the following extracts from Craies on Statute Law, Sixth Edn. :

Page 260. "If an absolute enactment is neglected or contravened, a Court of law will treat the thing which is being done as invalid and altogether void, but if an enactment is merely directory it is immaterial, so far as relates to the validity of the thing which is being done, whether it is complied with or not."

Page 264. "Every statute limiting anything to be in one form, although it be spoken in the affirmative, yet includes in itself a negative ; and in Bacon's Abr. the rule given is that if an affirmative statute which is introductive of a new law direct a thing to be done in a certain way, that thing shall not, even if there be no negative words, be done in any other way'."

Page 266. "As a general rule, statutes which enable persons to take legal proceedings under certain specified circumstances must be accurately obeyed notwithstanding the fact that their provisions may be expressed in merely affirmative language."

Page 271. "But the conditions in an enabling Act which have been prescribed for the purpose of protecting or benefiting the public cannot be dispensed with."

As against this, learned counsel for the respondent has referred to a decision of the Bombay High Court reported as Pandurang. Narayan Adha v. Ramchandra R. Panditrao (A I R 1930 Bom. 554), where the question of the use of the word "shall" in section 35(2)(b) of the Bombay Local Boards Act fell for consideration, which provision reads as under:‑-

"Fifteen clear days' notice of a quarterly meeting and ten clear days' notice of a special meeting, specifying the time and place at which such meeting is to be held and the business to be transacted thereat, shall be circulated to the members and posted up at the local board office. Such notice shall include in the case of a special meeting any motion or pro position mentioned in any written request made for such meeting."

The learned Judges finding that the use of the word "shall" would not by itself make a provision of the Act mandatory and it is to be construed with reference to the context in which it is used, and keeping in view the context of the said section held by that word "shall" as used in that section seemed properly to apply to a directory rather than to a mandatory provision.

3. I have considered the matter keeping in view the rules of interpretation cited in Craies on the subject and I find that the correct principle of law determining the mandatory or directing nature of the word "shall" has been laid down in a Full Bench decision reported as Ramesher Singh and another v. Sheodin Singh and another (ILR12 All.510). The observation is as under:‑

"In my opinion, there is a difference between a case in which a Court or an officer of a Court omits to do something which by a statute it is enacted shall be done, and cases in which a Court or an officer of a Court does something which by a statute it is enacted shall not be done. In the one case the omission to do an act which by the statute it is enacted shall be done, may not amount to more than an irregularity in procedure, whilst in the other case, in which the prohibition is enacted, the doing of the prohibited thing by the Court or the official is ultra vires and illegal, and if ultra vires or illegal, it joust follow that it was done without jurisdiction."

Applying the test laid down in the Full Bench decision reproduced above, I find that non‑compliance with the pro vision of section 15(3) of the Ordinance, in so far as the records' of the case had not been sent for by the Appellate Authority was a mere irregularity of procedure and is not fatal to the decision, especially when no real prejudice has been established to have been caused to the appellant.

4. The result is that the appeal fails and is dismissed. There will be no order as to costs.

A.E. Appeal dismissed.

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