Appeal No 131 of 1993
From the Judgment and Order dated 17121991 of the Himachal Pradesh High Court in Civil Revision No 210 of 1990
PP Rao and Ashok K Mahajan for the Appellants
DD Thakur NN Bhat EC Agrawala AV Palli and Ms Purnima Bhat for the Respondent
The Judgment of the Court was delivered by YOGESHWAR DAYAL J
Special leave granted
With the consent of learned counsel for the parties the appeal itself was heard
The respondent is a tenant at the rate of Rs 18333 per month in the premises in dispute ie Shop No 50 The Mall Shimla
On 7th March 1983 late Smt
Dhani Devi Predecessor in interest of appellant No 2 and Shri Madan Mohan appellant No1 filed an application for eviction of the respondent on various grounds
One of the grounds on which the eviction was claimed was non payment of rent
It was stated in eviction petition that the respondent was in arrears of rent with effect from 131980 to 2821983
The Rent Controller on 2971986 passed an order of eviction on the ground of non payment of arrears of rent
The operative part of the said order is as under In the tight of my finding on issue No1 above the application is allowed on the ground of non payment of arrears of rent and the petition fails on other grounds
However the respondent shall not be evicted from the premises in question if he pays to the petitioner or deposit in this court a sum of Rs 6600 being arrears of rent from 131980 to 2821983  2200 pa plus interest thereon  6 pa
amounting to Rs 60939 upto 2821983and further interest on Rs 6600  6 pa
from 131983 till 2881986 plus costs assessed at Rs 100 within a period of 30 days from today  On 1381986 the respondent deposited a sum of Rs 8500 in the court of the Rent Controller Shimla
According to the appellants decree holders the amount due inclusive of interest and costs upto 2971986 was Rs 866129 and till the date of deposit it worked out to Rs 867779 if the 113 interest was to be calculated at the ordered rate till 1381986
According to the appellants the amount deposited was not in accordance with the order of the ejectment dated 29th July 1986 and was short and they filed the execution petition before the Rent Controller seeking possession of the suit premises
On the execution petition being opposed the Rent Controller framed the following two issues a Whether the tender made by the respondent of the rent amount is short as alleged b Relief By an order dated 1851990 the Rent Controller while deciding issue No 1 held that the tender made by the respondent was short to the tune of Rs 16129
However while deciding issue No2 the Rent Controller allowed 15 days  time from the date of the order for deposit of the said amount
The appellants being aggrieved by the order of the Rent Controller dated 1851990 filed revision petition in the High Court
It was submitted on behalf of the appellants that the executing court had no jurisdiction to extend the time for making good the deficiency of
16129 inasmuch as since period of 30 days has been fixed by the Himachal Pradesh Urban Rent Control Act 1987 hereinafter referred to as the Act  itself the court could not either enlarge or abridge this period
By the impugned judgment dated 17121991 the High Court dismissed the revision petition
The High Court while interpreting the words amount due occurring in the third proviso to Section 142 i of the Act held that these words referred to arrears of rent only and do not include interest and costs
It will be noticed that neither of the parties had challenged the order 2971986 by which the order of eviction was passed on the ground of non payment of rent against the respondent but the respondent had been given the liberty of avoiding eviction provided he deposited the amounts as stated in the order within the period of 30days from the date of the said order
Before the High Court it was submitted on behalf of the appellants 114 that the executing court had no jurisdiction to extend the time to make good the deficiency in the amount as directed by the order dated 2971986
It was submitted on behalf of the appellants that since the period of 30 days had been fixed in the Act itself the court could not enlarge or abridge this period
The High Court agreed with this submission but posed a question for itself whether short fall of Rs 16129 which had been ordered to be deposited constitutes arrears of rent or interest and costs
While following an earlier decision of the same High Court reported as Om Parkash vs Sarla Kumari  Ors 1991 1 Sim
LC 45 interpreted the word amount due occurring in the third proviso to Section 142i of the Act wherein it had been held that in order to save eviction the tenant is required to deposit only arrears of rent due at the time of filing application for eviction and not arrears of rent together with interest and costs within the statutory period of 30 days from the date of eviction order
After answering the question the High Court took the view that the deficiency of Rs 16129 pertains to interest and costs
So far as the arrears of rent which amountedto Rs 6600 for the period in question ie from 131980 to 2831983 at the rate of Rs 2200 pa is concerned it had been deposited within 30days
In view of this finding the High Court was of the view that the respondent was not liable to be evicted
High Court also held that the order of the executing court extending time to deposit Rs 16129 in pursuance of its order dated 2971986 is of no consequence
The relevant part of Section 14 of the Act may be noticed 14
Eviction of tenant 1 A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decre passed before or after the commencement of this Act or otherwise whether before or after the termination of the tenancy except in accordance with the provisions of this Act
2 A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf
If the Controller after giving the tenant a reasonable opportunity of showing cause against the applicant is satisfied i that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days 115 after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at the rate of 9 per cent per annum on such arrears together with the cost of application assessed by the Controller the tenant shall be deemed to have duly paid or tendered the rent within time aforesaid Provided further that if the arrears pertain to the period prior to the appointed day the rate of interest shall be calculated at the rate of 6 per cent per annum Provided further that the tenant against whom the Controller has made an order for eviction on the ground of non payment of rent due from him shall not be evicted as a result of his order if the tenant pays the amount due within a period of 30 days from the date of order or ii
 or iii   or iV
 or v  the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application A reading of the aforesaid relevant part of the Section shows that sub section 1 of Section 14 creates a ban against the eviction of a tenant except in accordance with the provisions of the Act
The ban is liable to be lifted
Sub section 2 of Section 14 provides the circumstances in which the ban is partially lifted
It contemplates that where an eviction petition is filed inter alia on the ground of non payment of rent by the landlord 116 the Controller has to be satisfied that the tenant has neither paid nor tendered the rent in the circumstances mentioned in clause i of sub section 2 of Section 14
He has to arrive at this satisfaction after giving a reasonable opportunity of showing cause against it to the tenant
But there may be cases where the tenant on being given notice of such an application for eviction may like to contest or not to contest the application
The tenant is given the first chance to save himself from eviction as provided in the first proviso to clause i of sub section 2 of Section 14
This first proviso contemplates that the tenant may on the first hearing of the application for ejectment pay or tender in court the rent and interest at the rate mentioned in the proviso on such arrears together with the cost of application assessed by the Controller and in that case the tenant is deemed to have duly paid or tendered the rent within the time as contemplated by clause i of sub section 2 of Section 14
Where the tenant does not avail of this opportunity of depositing as contemplated by the first proviso and waits for an ultimate decision of the application for eviction on the ground of non payment of rent the Controller has to decide it and while deciding the Controller has to find whether the ground contained in clause i of sub section 2 of Section 14 has been made out or not
If the Controller finds that the ground as contemplated by clause i of sub section 2 of Section 14 is made out he is required to pass an order of eviction on the ground of non payment of rent due from him
A second opportunity to avoid eviction is provided by the third proviso to clause i of sub section 2 of Section 14
But the second opportunity is provided after the order of eviction
The benefit of avoiding eviction arises if the tenant pays the amount due  within the period of 30 days of the date of order
The question is what is the meaning of the words amount due occurring in the third proviso to clause i of sub section 2 of Section 14 of the Act
It will be noticed that there is no provision in the Act for giving powers to the Controller to direct payment or deposit of Pendente lite rent for each month during the pendency of the petition for eviction of the meant
First Proviso to sub section 2 of section 14 shows that in order to show payment or valid tender as contemplated by clause i of sub section 2 of Section 14 by a tenant in default he has to pay on the first date of hearing the arrears of rent alongwith interest and costs of the application 117 which are to be assessed by the Controller
Surely where a tenant does not avail of the first opportunity and contests the eviction petition on the ground of non payment of arrears of rent and fails to show that he was not in default and court finds that the ground has been made out an order of eviction has to follow
Therefore it does not stand to reason that such a tenant who contests a claim and fails to avoid order of eviction can still avoid it by merely paying the rent due till the date of the filing of the application for ejectment
The third proviso to clause i of sub section 2 of Section 14 should also receive an interpretation which will safeguard the rights of both the landlord and tenant
The amount due occurring in the third proviso in the context will mean the amount due on and upto the date of the order of eviction
It will take into account not merely the arrears of rent which gave cause of action to file a petition for eviction but also include the rent which accumulated during the pendency of eviction peti tion as well
If the tenant has been paying the rent during the pendency of the eviction petition to the landlord the amount due will be only arrears which have not been paid
The landlord as per the scheme of the section cannot be worse off vis a vis a tenant who was good enough to deposit in court the arrears of rent together with interest and costs on the first date of hearing
If the interpretation given by the High Court is accepted the result would be that the tenant will be better off by avoiding to pay the arrears of rent with interest and costs on the first date of hearing and prefer suffering order of ejectment after contest and then merely offer the amount due as mentioned in the application for ejectment to avoid eviction
This could not be the intention of the legislature
In such cases it will be advisable if the Controller while passing the order of eviction on the ground specified in clause i of sub section 2 of Section 14 of the Act specifies the amount due till the date of the order and not merely leave it to the parties to contest it after passing of the order of eviction as to what was the amount due
Surely the Rent Control Acts no doubt are measures to protect tenants from eviction except on certain specified grounds if found established
the grounds are made out and subject to any further condition which may be provided in the Act the tenants would suffer ejectment
Again the protection given in the Acts is not to give licence for continuous litigation and bad blood
118 Surely the legislature which made the Act could not have envisaged that after the parties finish off one round of litigation the party should be relegated to another round of litigation for recovery of rent which accrued pendente lite
Whatever protection Rent Acts give they do not give blanket protection for non payment of rent
This basic minimum has to be complied with by the tenants
Rent Acts do not contemplate that if one takes a house on rent he can continue to enjoy the same without payment of rent
The order which the Controller passed was a composite order of eviction in the sense that if the tenant wanted to save himself from eviction he had to comply with the order
The order which was passed by the Controller cannot be said to be an order without jurisdiction
It may be a right order it may have been a wrong order
It was not a nullity that the executing court will ignore it
But at the stage when the execution application was filed the rent Controller could not go behind its own order dated 2971986
If the Controller could not go behind its own order in execution proceedings surely the High Court could not also go behind the order in revision against the order of Controller refusing execution
It was not the appropriate stage for the High Court to examine what order ought to have been passed or to limit the efficacy of the order to its interpretation of the words amount due as mentioned in the third proviso to clause i of sub section 2 of Section 14
The question which the High Court posed never arose
Mr Thakur who appeared on behalf of the respondent submitted 1that sub section 2 of Section 14 gives discretion to the Controller to pass an order of eviction or not to pass an order of eviction even if the ground mentioned in clauses i to v of sub section 2 of Section 14 are made out 2that the order of eviction which was passed is not the final order in the sense that it is an interim order
The final order is passed only after the expiry of 30 days if the tenant fails to avail of the second opportunity provided by the third proviso to clause i of sub section 2 of Section 14
With due respect to learned counsel for the respondent we are not able to persuade ourselves to agree with either of his submissions
It is true that sub section 2 uses the expression the Controller may make an order 119 directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application
It will be noticed that the Controller is required to dismiss the eviction application if he is not satisfied to the existence of any ground mentioned in clauses i to v of sub section 2 of Section 14 of the Act but where the Controller is satisfied with existence of any of the grounds mentioned in clauses i to v of sub section 2 of Section 14 the Controller has no discretion to decline to pass the order of eviction
In the context in which the expression may is used it means shall 
Otherwise the section would read that not only the Controller can reject an application when he is not satisfied with the ground but is also entitled to dismiss the application when he is so satisfied
Such an intention cannot be attributed to the legislature particularly when the consequences of non satisfaction is expressly mentioned
Even if the consequences of non satisfaction was not mentioned we are of the view that the expression may occurring would still mean shall and all that would mean is that if the grounds are not made out he will be bound to dismiss the application and if the grounds are made out he is bound to pass the order of eviction
If any other interpretation is given to the word may the section may itself become subject matter of challenge under Article 14 of the Constitution of India
The Court shall avoid interpretation which make the provisions violative of the Constitution if possible
Coming to the second submission as we have noticed earlier subclause i of sub section 2 of Section 14 gives two opportunities to the tenant to avoid eviction
The first opportunity to avoid eviction is if the tenant avails of the benefit of first proviso
This opportunity is before the passing of the order of eviction
The second opportunity is after the order of eviction
The order which is passed for eviction is final in the sense as it is not an interim order
If the tenant avails of the second opportunity as provided in the third proviso then the order of eviction becomes inexecutable and he saves himself from eviction
Having found that the question posed and answered by the High Court was not relevant at the stage it was posed namely during the execution proceedings and therefore the order is bad
The validity of the order of the executing court dated 18th May 1990 120 now needs to be considered
The executing court on consideration of the evidence recorded during the execution proceedings held that the judgment debtor respondent himself calculated the interest for the period 131983 to 2821986 with the result that Rs 16129 ps was deposited less by the judgment debtor and thought that it had power to extend the time for making up the deficiency and accordingly extended the time
So far as the Himachal Pradesh High Court is concerned it has consistently taken the view that the executing court has no such power since the time is fixed by the statute
RS Pathak CJ
As His Lordship then was in Shri Krishan Kumar vs Shri Gurbux Singh while interpreting the third proviso to Section 142 i of the Act took the view thus It is apparent that the statute itself provides a period of 30 days from the date of the order for payment of rental arrears by the tenant
On such payment the statute declares effect will not be given to the order of eviction
The statute does not leave the determination of the period to the Rent Controller
It is not open to the Rent Controller when disposing of the petition for eviction to make an order either abridging or enlarging the period of 30 days
Indeed the period having been determined by the statute itself no order was necessary by the Rent Controller
There being no power in the Rent Controller to vary the period mentioned in the statute it is apparent that the order made by him in the execution proceedings is a nullity
The Appellate Authority is right in the view taken by it Mr Thakur learned counsel for the respondent referred us to Shyamcharan Sharma vs Dharamdas   Miss Santosh Mehta vs Om Prakash and others   Ram Murti vs Bhola Nath and another and Ganesh Prasad Sah Kesari and another vs Lakshmi Narayan Guptta  and submitted that this Court had in spite of there being no express provisions to extend time taken the view that the Court has inherent powers to extended time for deposit of rent
We are of the view that the reliance placed on these cases is wholly misplaced
It may be noticed that the case of Shyamcharan Sharma supra related to the powers of the Court under Section 136 of the Madhya 121 Pradesh Accommodation Control Act 1961
This Act contemplated an eviction petition being filed under Section 12 and one of the grounds for eviction was for failure of the tenant to pay or tender within two months from the date of service of notice of demand of rent and Section 12 3 thereof provided that the order of eviction will not be passed on this ground if the tenant makes the payment of deposit as required by Section 13
Section 131 contemplated that when a suit has been instituted on any of the grounds against the tenant for his eviction the tenant shall within one month of the service of summons on him or within such further time as the court may allow in this behalf deposit in the court or pay to the landlord the arrears of rent and shall also continue to pay month by month the future rent as well
Sub section 5 of Section 13 contemplated that if the deposit was made as contemplated by sub section 1 of Section 13 no order for recovery of possession should be made on the ground of default in the payment of rent
Sub section 6 of Section 13 provide that if the tenant fails to pay any amount as required by Section 13 the court had the power to strike out the defence and proceed with the hearing of the suit
While dealing with the powers under Section 136 of the said Act this Court took the view that the court had discretion to strike off the defence or not even if there is delay in depositing rent falling due after institution of suit for eviction
The Court held  In case of non deposit or non payment of rent by the tenant Section 136 vests a discretion in the Court to order striking off the tenant s defence against eviction it neither clothes the landlord with an automatic right to an eviction decree nor visits the tenant with the penalty of such a decree being automatically passed
If the court has the discretion to strike off or not to strike off the defence it has further discretion to condone the default and extend the time for making the payment or deposit
Such a discretion is a necessary implication of the discretion not to strike off the defence
A different construction might lead to perversion of an object of the Act namely adequate protection of the tenant 
 An express provision for extending time for deposit or payment was not made in Section 131 because the consequences of non payment was proposed to be dealt with separately by Section 136 and the discretion to extend time is incidental to the discretion in the said section to strike 122 off or not to strike off the defence
This view in Shyamcharan Sharma s case supra was followed by this Court in Miss Santosh Mehta s case supra and Ram Murti s case supra which were the cases under the Delhi Rent Control Act 1958 which also had the provisions similar to the Madhya Pradesh Accommodation Control Act 1961 contemplating direction by the court to direct the tenant to pay the pendente lite rents which have become due and consequences for not complying with such directions
Again the case of Genesh Prasad Sah Kesari supra related to the provisions for striking out the defence for failure of the tenant to deposit arrears of rent within 15 days of date of the courts s order and this court again followed the decision in the case of Shyamcharan Sharma
These cases have no application where the final orders were passed after satisfaction of the Controller for entitling the landlord to seek eviction on the grounds specified in the Act
Mr Thakur then submitted that this Court should not exercise its powers under Section 136 of the Constitution of India as the rent laws are meant for protection of the tenants
Rent Control Acts are necessary social measures for protection of tenants
The Rent Control Laws have tried to balance the equity
Landlord is duty bound to satisfy the ground of eviction mentioned in various Rent Acts and if he does not satisfy he cannot get the order of eviction merely because the Act restricts his rights
There are certain Rent Acts which even when a ground of eviction is satisfied still confer powers on the Rent Controllers to consider the question of comparative hardship and it is only in those types of cases if the Controller is satisfied he can decline passing orders of eviction
But if there is no such limitations the Rent Controllers
after the ground of eviction specified in the Act is made out have no discretion to reject the application
Once the order of eviction is passed in the circumstances like the present the executing court is duty bound to execute its orders
No question of equity or hardship arises at that stage
We are in complete agreement with the view expressed by RS Pathak CJ as His Lordship then was  in the aforesaid case of Shri Krishan Kumar
123 In the present case the tenant spared no efforts to harass the landlords
After the order of eviction dated 29th July 1986 the matter did not rest there
The tenant again failed to pay the rent and the landlord was forced to file another eviction petition on the ground of non payment of rent for the period from 131983 to 30111986 and it was only after the filing of the said eviction petition and in order to avoid eviction he deposited the rent
The matter did not rest there even and it was only after the notice of the Special Leave Petition was issued in the present case that the tenant chose to pay the rent from 1121986 after keeping it in arrears for practically six years
In view of the aforesaid facts and circumstances of the case we set aside the impugned order of the High Court dated 17th May 1991 and the order of the Rent Controller dated 18th May 1990 and direct the Rent Controller Shimla to issue the warrants of possession for ejectment of the respondent from the premises in dispute and place the landlordsappellants in possession
VPR Appeal allowed


Summary:
The petitioners challenged before the High Court the levy of excise duty on the weight of the yarn sized for the purpose of weaving them into fabrics
The High Court held that no duty could be levied on the weight of the sizing material contained in yarn and directed that the duty should be refunded since it has been levied not on the basis of yarn at the spindle stage but on the weight of the sized yarn
After the said judgment the Central Government by Notification dated 2021982 amended Rules 9 and 49 of the and Section 51 of the Finance Act 1982 with retrospective effect
In accordance with the said Notification Central Excise Department issued show cause notices to the petitioners
The constitutional validity of these amendments are challenged by the petitioners in the present Writ Petitions filed before this Court
On behalf of the petitioners it was contended that their cases were covered by the decision of this Court in JK Cotton Spinning and Weaving Mills Ltd  Anr
vs Union of India and Ors  and that excise duty could be levied on the weight of the unsized yarn and not on the basis of the weight of the sized yarn
Allowing the petitions this Court HELD 11
The Vires of Rules 9 and 49 of the Central Excise Rules 1944 as well as section 51 of the Finance Act 1982 and the retrospective 143 application of the same has already been upheld by this Court
145E 12
The sized yam which is actually put into the integrated process will not again be subjected to payment of excise duty for the unsized yam which is sized for the purpose does not change the nature of commodity as yarn
Thus excise duty cannot be levied on the weight of the yarn after the yarn is sized for the purpose of weaving the same into fabrics
145G 13
Practically nine years have gone by since the show cause notices were issued by virtue of the same directives which were subject matter of JK Cotton Mills case
In view of this peculiar fact it would not be in the interest of justice if the petitioners are directed to contest the individual show cause notices issued by the respondents
In order to avoid multiplicity of proceedings involving time and expense the show cause notices in all these cases are quashed
148F G JK Cotton Spinning and Weaving Mills Ltd  Anr
vs Union of India  Ors
   applied