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First Rent Appeal No.105 of 1987, decided on 26th March, 1987.

---Ss.14 & 16(1),(2)--Object of Ordinance--Regulation of relations between landlord and tenant and protection of their interests in respect of rented premises--Ejectment proceedings--Striking off defence of tenant for failure to deposit rent within specified time--Word "shall" in S.16(2), held, was used not with a view to making the provision mandatory imperative but it was to be directory--Rent Controller must have power to relieve against a drastic consequence if there was a formal or technical default in complying with his order--Such construction would advance the purpose for which Ordinance was promulgated--Circumstances in which the rent for one month was not deposited within time had been explained in counter-affidavit of appellant and affidavit of his counsel--Tenant having done all that was required of him under ,law, he could not be made to suffer for the default--Some delay in making deposit was not of such a nature was to visit the tenant with consequence of striking off his defence- Appeal allowed, order striking off defence set aside and matter remitted to Controller for proceeding further with eviction application.

---Word "shall"--Interpretation. Ordinarily the use of the word "shall" prima facie indicates that the provision is imperative in character. However, the Court while considering whether the mere use of the word "shall" would make the provision imperative, it would ascertain the intendment of the Legislature and the consequences flowing from its own construction of the word "shall".

Raja M. Aslam Kiyani for Appellant.

Farooq H. Naeek for Respondent.

Date of hearing: 8th March, 1987.

This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) by the tenant is directed against the order, dated 21-12-1986 passed by the IIIrd Senior Civil Judge/Rent Controller, Karachi, whereby the defence of the appellant was struck off and he was directed to vacate the premises in dispute within sixty days from the date of the order.

The facts leading to the filing of the above appeal are that the respondent is landlady of building bearing No.106-B, Khudadad Colony, Karachi and the appellant is her tenant in respect of a portion of the said building at a monthly rent of Rs.100. The respondent filed eviction application No.272 of 1985 (new No.1782 of 1985) against the appellant on the grounds that the appellant had committed default in payment of rent for the period January, 1983 to December, 1984 and also on the ground of personal requirement. The appellant contested the eviction application inter alia that he was not in default. The appellant also denied personal requirement. There followed an application by the respondent/ landlady for a direction under section 16(1) of the Ordinance.

The prayer in the application was that the appellant be directed to deposit the rent in arrears from January, 1983 to March 1985 and also future monthly rent. The learned Controller made an order directing the appellant to deposit rent for the period from January 1983 to January 1986 amounting to Ra.3,700 on or before the 30th April 1986 and continue to deposit the rent for February 1986 on or before 10th of March, 1986 and thereafter to continue to deposit the rent from month to month at the rate of Rs.100.

On 6-8-1986 the respondent /landlady moved an application praying that as there was delay in depositing the rent for the month of March, 1986, defence of the appellant be struck off, for his failure to strictly comply with the order made under section 16(1). After the appellant filed his objections the learned Controller heard the application and allowed the same. Hence this appeal.

I have heard the learned counsel for the parties and perused the record.

In an application for eviction, section 16(1) enables the Controller to give a direction to pay rent which is claimed to be in arrears as also compel the opponent who continues to remain in possession during the pendency of the proceedings to perform his obligation to deposit the rent regularly. It also enables the Controller to determine the rate of rent at which the deposit shall be made, where in a case there is a dispute as to the rate of rent. In majority of cases the tenancy is generally oral and no written record is usually available to furnish evidence as to the terms of lease. Giving a receipt for the rent paid has not still become a part of the culture of the landlord. Therefore, where eviction is sought on the ground of non-payment of rent, it places a tenant at a comparative disadvantage if the landlord chooses to claim rent at the rate which is beyond the capacity of the tenant. The tenant will be exposed to double jeopardy in that on a prima facie pleading he will be rest. to deposit the rent at the rate claimed by the landlord, if the Controller has no power to determine the rate of rent at an interim stage. Such power is conferred by section 16(1) on the Controller. The Controller can also determine as to from what date the tenant appears to be in arrears so that appropriate direction can be given that the rent in arrears may be deposited within time stipulated by the Controller as also future rent may be deposited regularly with the Nazir of the Civil Court. It is a wholesome provision which would advance justice.

Now where power is conferred on the Controller to give such directions a sanction had to be created to guard against the failure to comply with the Controller's directions. This direction is to be found in the conferment of power under section 16(2) on the Controller to strike off the defence of the tenant if he fails to comply with the order of the Controller giving directions for deposit. Such a sanction would advance justice.

The contention of the learned counsel for the respondent is that the moment the failure of the tenant to comply with the tentative rent order is brought to the notice of the Controller, without anything more the defence has to be struck off. The contention is founded on the use of the expression "shall" in that part of subsection (2) of section 16 by which power is conferred on the Controller co strike off the defence. The relevant part of the expression reads thus:

"Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1), his defence shall be struck off."

The expression "shall" as mandatory in the aforesaid subsection, the submission is that as there was default in making the deposit for the month of February hereinbefore mentioned which would show non compliance with the order, dated 2-3-1986 passed under section 16(1) and the tenant /appellant will have to bear the consequences.

The question that arises is whether the use of the word "shall" in the expression hereinbefore extracted makes the provision imperative or mandatory or the Controller still retains the discretion to relieve against the default.

Ordinarily the use of the word "shall" prima facie indicates that the provision is imperative in character. However, by a catena of decisions, it is well established law that the Court while considering whether the mere use of the word "shall" would make the provision imperative, it would ascertain the intendment of the Legislature and the consequences flowing from its own construction of she word "shall". If the use of the word "shall" makes the provision imperative, the inevitable consequence that flows from it is that the Controller would be powerless to grant any relief even where the justice of the case so demands. If the word "shall" is treated as mandatory, the net effect would be that even where the default in complying with the direction given by the Controller is technical, or on account of circumstances beyond the control of the defaulter or fortuitous, yet the Controller would not be able to grant any relief to such person. Once a default is found to be of a technical nature in complying with the tentative order, the Controller must have power to relieve against a drastic consequence all the more so if it is satisfied that there was a formal or technical default in complying with his order.

The Ordinance was promulgated with a view to make effective provisions for regulation of relations between landlords and tenants and protect their interests in respect of rented premises within urban areas. The long title of the Ordinance shows that it was promulgated to regulate the relations between the landlords and tenants and protect their interests in respect of the premises. A provision in such a statute primarily promulgated for the protection of tenants against unreasonable eviction that the Controller is required to find out whether the word "shall" was used as to make the provision mandatory or imperative. Obviously if one ascertains the intendment of the Legislature, the purpose for which the provision was enacted, the beneficial nature of the statute and to protect the harassed tenant, obviously it does not require long argument to hold that the expression "shall" was used not with a view to making the provision mandatory or imperative but it was to be directory. Such a construction would advance the purpose for which the Ordinance was promulgated namely the protection of tenants.

In the present case the appellant has deposited all the arrears. There was some irregularity in making the deposit for the month of February, 1986, that is, the amount was deposited on 13-3-1986 instead of depositing it on or before 10-3-1986. The learned counsel for the appellant filed his own affidavit and stated therein that the appellant sent the amount of rent through his driver and he received the same at about 1-30 p.m. on 10-3-1986 as the driver had been searching 'him in all the Courts and he went to the lower Court and due to the closing of Bank time, the Clerk/Nazir directed him to come on 11-3-1986. It is also stated that on 11-3-1986 he made about four visits but the challan was not passed and the ledger account was not opened and the same position was repeated on 12-3-1986. The driver of the appellant had the requisite amount with him on 10-3-1986 and that he started in time to reach the Court within the prescribed Court hours and yet by circumstances beyond his control, he did not contact the counsel, as such the amount could. not be deposited within time. The appellant moved an application which was rejected. The other explanation is that the appellant is heart patient and he was admitted in Holy Family Hospital during the period 9-1-1986 to 31-1-1986.

The circumstances in which the rent for the month of February was not deposited within time, has been explained in the counter affidavit of the appellant and in the affidavit of the learned counsel for the appellant. The tenant cannot be made to suffer for the default when it is shown that the tenant had done all that was required of him under law. It was an unfortunate circumstance that the amount could not be deposited within time. In such state of affairs, the counter affidavit, affidavit of the counsel and the application, dated 13-3-1986 clarifying the position should be considered as enough. The appellant has deposited the amount on 13-3-1986. There was some delay in making the deposit but it was not of such a nature as to visit the tenant with the consequence of striking off his defence. I am, therefore, inclined to allow the appeal. The order of the Controller directing that the defence be struck off is set aside.

The appeal is allowed accordingly and the matter is remitted to the concerned Controller to proceed further with the eviction application from the stage where the defence of the appellant was struck off. The defence will be treated as part of the proceedings and the eviction application shall be proceeded with accordingly. The parties are directed through their counsel to appear before the Controller on 4-4-1987.

I leave the parties to bear their respective costs in this Court.

S.Q./N-17/K Appeal allowed.

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