ivil Appeal No 2789 of 1980
From the Judgment and Order dated 2951980 of the Punjab and Haryana High Court in Civil Revision No 2 16 of 1980
RF Nariman and DN Misra for the Appellant
989 Rakesh Sahney KMM Khan and Vineet Kumar for the Respondent
The Judgment of the Court was delivered by section RATNAVEL PANDIAN J
This appeal by special leave under Article 136 of the Constitution is against the judg ment and order dated 2951980 in Civil Revision No 216 of 1980 passed by the High Court of Punjab and Haryana at Chandigarh
The respondent herein being the owner of the tenanted premises ie two sheds filed a petition for ejectment before the Rent Controller against the tenant the appellant herein on the ground that the tenant had not paid the rent from 1574
The monthly rent for the premises was orginally Rs950
According to the landlord under the provisions of Haryana Urban Control of Rent and Eviction Act 1973 hereinafter referred to as the Act  the rent of the demised premises was liable to be increased from Rs950 to Rs 1142 per mensem
The landlord gave notice to the tenant to pay the rent at the enhanced rate of Rs 1142 per mensem with effect from 26th June 1974 but the tenant defaulted in making the payment of rent and as such he was liable to be ejected from the premises on the ground of nonpayment of rent
The tenant resisted the application stating that the landlord was not entitled to claim enhanced rent at the rate mentioned in the ejectment application under the provisions of the Act and no legal notice was served on him claiming the arrears of rent and he had already paid the rent upto March 1975 by means of cheques and he had tendered the arrears of rent together with interest and cost as assessed by the Rent Controller on 5th December 1977 and hence the sole ground of his ejectment from the demised premises was no longer available to the landlord
In the replication the landlord denied that the tenant had paid the rent to him for the period from May 1974 to 30th November 1977  Rs1142 per mensem
In the alternative he claimed that the rent to the extent of Rs36100 was due to him from the tenant  Rs950 per mensem for the period 1st May 1974 to 30th June 1977 and that the tenant having defaulted in making the payment was liable to be ejected
It may be stated that the applica tion for eviction was filed on 7677
The Rent Controller held that the landlord was not entitled to recover the rent  Rs 1142 pm but only  Rs950 pm as agreed between the parties and he had failed to pay the rent from 1475
On the basis of the above finding the Rent Controller directed the eject 990 ment of the tenant from the premises by granting two months  time
This order of the Rent Controller on appeal was con firmed by the Appellate Authority
On being aggrieved with the Order of the Appellate Authority the tenant preferred a Civil Revision Petition before the High Court under Sub section 6 of Section 15 of the Act
On behalf of the tenant it was urged before the High Court on the strength of Clause C  of Rule 4 and Clause 1 of Rule 5 of the Haryana Urban Control of Rent and Eviction Rules 1976 framed under Section 23 of the Act that since in the appli cation for ejectment no specific amount of arrears due was mentioned the application was not maintainable
The High Court rejected this plea observing thus Admittedly no such objection as to the non compliance of the said rules was taken either in the written statement or before the Rent Controller inasmuch as it was not raised even before the Appellate Authority
Moreover it has not been shown that any prejudice was caused to the tenant on account of this non compliance on the part of the landlord
Under these circumstances no such plea can be available to the tenant in this revision petition for the first time particularly when it does not affect the merits of the case nor has it caused any prejudice to him
 Thereafter coming to the question of arrears of rent the High Court found thus Moreover the tenant clearly stated on 5th December 1977 that according to him the total amount due from him at the rate of Rs950 pm from 1st April 1975 to 31st May 1977 was Rs24700 out of which Rs21696 had already been paid by him to the landlord which he subsequently failed to prove by leading evi dence
Under these circumstances since the tenant failed to prove the payment of the arrears of rent as claimed by him in his statement recorded on 5th December 1977 he was liable to ejectment on the ground of non payment of rent as provided under Section 132i of the Act
 On the above finding the Revision Petition was dis missed
Hence this present appeal
We shall point out at this juncture that the amount of Rs21696 991 which the tenant claims to have paid includes a sum of Rs 1884414 which was found by the Rent Controller and the Appellate Authority as arrears of rent
Mr RF Nariman learned counsel appearing on behalf of the appellanttenant assails the impugned judgment of the High Court on two legal grounds firstly that the High Court has ignored to note that the statutory obligation cast on the Rent Controller as per the proviso attached to Sec tion 132i of the Act requiring him to calculate and determine the quantum of arrears of rent even at the first instance has not been complied with and secondly that the application for ejectment was not in accordance with the mandatory provisions of Rule 4c 51 and 6 of the Rules framed under the Act and as such the impugned judgment is liable to be set aside on both the grounds
We shall now take the first ground of attack
Before dealing with the point of law involved it may be necessary to extract the relevant portion of Section 132i of the Act with its first proviso with which we are concerned
132 A landlord who seeks to evict his tenant shall apply to the Controller for direction in that behalf
If the Controller after giving the tenant a reasonable opportu nity of showing cause against the application 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 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 within a period of fifteen days of the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and inter est to be calculated by the Controller at eight percenturn per annum on such arrears together with such costs of the application if any as may be allowed by the Controller the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid
 The answer to the first legal question mainly turns on the 992 interpretation of the proviso to Section 13 which refers to the following essential conditions namely 1
There must be an application for ejectment before the Court 2
The tenant within a period of fifteen days of the first hearing of the application after due service pays or tenders a the arrears of rent and b the interest to be calculated by the Controller at eight per cent per annum on such arrears together with such costs of the application if any as may be allowed by the Controller If the above said two conditions are satisfied then the tenant shall be deemed to have duly paid or tendered the rent within the time required by law
The last paragraph of Section 132 enjoins that where the above second condition of the proviso is not fulfilled the Controller shall make an Order directing the tenant to put the landlord in possession of the building and where he is satisfied that the rent has been paid the application of the landlord must be rejected
Therefore the sole question which has to be determined in the case on hand is whether or not the deposit made by the appellant was legally valid
On facts the Rent Control ler the Appellate Authority and the High Court found that the appellanttenant has not deposited the actual rent due payable by him except a part of it namely Rs290296 along with the interest of Rs26127 and the cost of Rs35 totall ing to Rs319923 which deposit was less by Rs1884414 even calculated at the rate of Rs950 per mensem
In fact the learned counsel who appeared for the appellanttenant before the Appellate Authority has conceded the arrears of rent which fact is found in paragraph 6 of the Order of the Appellate Authority reading thus The learned counsel for the appellant frankly conceded before me that he did not challenge the finding of the Court below that the re spondent was in arrears of rent in the amount of Rs 18844 on the date he tendered the arrears of rent together with interest and costs assessed by the Rent Controller
 993 An attempt on the part of the tenant that he had paid that amount has been totally rejected by all the Courts
Only on the above finding the Courts below held that the tenant had not deposited the full and valid rent actually due but only a small part of it and as such it is manifest that the second condition enjoined by the proviso was not fulfilled at all and on that ground alone it could be held that the deposit was not valid one
The learned counsel Mr RF Nariman drew our attention to two judgments of this Court in Sheo Narain vs Sher Singh  and Sham Lal dead by Lrs
vs Atme Nand Jain Sabha Regd Dal Bazar  In our considered view both these decisions cannot be of any as sistance to the appellant in the present case because the points for determination that arose in those two cases were different
Mr RF Nariman then advanced an argument that a statu tory duty is cast under Section 132i of the Act on the Rent Controller to calculate and determine the arrears of rent as well as the interest to be paid by the tenant within a period of 15 days of the first hearing of the application for ejectment after due service but since the Controller has failed to discharge that obligation no eviction can be ordered particularly when there is a dispute with regard to the quantum of arrears of rent
From the judgment on appeal it seems that a contention substantially identical to the one presently made was advanced before the High Court which repelled the same holding thus Going through the whole scheme of the Act there is no provision that the Rent Controller should decide at the first date of hearing the amount due as arrears of rent     
If this argument of the learned counsel for the peti tioner is accepted in that situation the tenant will have another opportunity for making the payment of the arrears due from him which as stated earlier is neither the scheme of the Act nor is in consonance with the language used in the proviso to Section 132i
On the first date of hearing it is the duty of the tenant to calculate the ar rears of rent which according to him are due from him and which he intends to tender on the first date of hearing      
Since payment of rent is obligatory on the tenant and that too within the time prescribed in Section 132i of the Act it is for him to calculate the rent which is in arrears and pay the same as provided by the statute
 994 After a careful scrutiny of the Section 132i and the first proviso annexed thereto we see no force in the sub missions of the learned counsel that there is any statutory duty cast on the Rent Controller even in the first instance to determine and calculate the arrears of rent and the interest but on the contrary the proviso requires the tenant to pay or tender the actual arrears of rent within 15 days of the first hearing of the application for ejectment after due service alongwith the interest to be calculated by the Controller at 8 per cent per annum on such arrears together with such costs of the application if any as may be al lowed by the Controller
What the proviso requires is that the Controller has to calculate the interest at 8 per cent per annum on such arrears of rent and determine the costs of the application if any
If the argument of the learned counsel is to be accepted then in every case the Rent Con troller has to hold an enquiry at the first instance and determine the arrears of rent even on the first date of hearing which is in the nature of things not possible with out any evidence nor is it contemplated under the scheme of the Act
When there is a statutory obligation on the tenant either to pay or tender the arrears of rent within a period of 15 days of the first hearing of the application for ejectment after due notice it is for him to calculate the exact arrears of rent due and to pay or tender the same and if the tenant tails to do so he is deemed to have not paid or made the valid tender of the rent
Hence we hold that this argument advanced on behalf of the appellant is miscon ceived and fallacious
For the reasons aforementioned we hold that there is no merit in the first contention
We shall now examine the second legal contention with reference to Rules 4c 51 and 6 of the Rules under the Act which rules read as follows 4
Application for eviction
Section 13 Application under section 13 of the Act shall besides the particulars mentioned in Rules 5 and 6 contain the following particulars name ly emphasised a xxxxxxxxxx b xxxxxxxxxx c The amount of arrears due and the period of default
995 51 Applications Section 4 and 131 In addition to the particulars mentioned in rules 3 4 and 6 as far as these may be applicable every application made under this Act shall contain simple and concise narrative of the facts which the party by whom or on whose behalf the statement of pleading is made believes to be material to the case and which he either admits or believes that he will be able to prove
emphasised 6
Particulars to be furnished to the Controller Section 211 Every landlord and every tenant of a building or rented land shall furnish to the Controller or any person authorised by him in that behalf the follow ing particulars namely emphasised a name and number of the building or rented land if any or its description and bound aries sufficient to identify it b street and municipal ward or division in which the building or rented land is situated c name and address of the landlord if the particu lars are furnished by the tenant and name of the tenant if the particulars are furnished by the landlord d whether the building is a residential non residential or a scheduled building and e nature of amenities provided by the land lord to the tenant Mr RF Nariman laid stress on the word shall occur ring in the above rules particularly Rule 4c and contended that these rules are mandatory in character and so the non compliance would amount to violation of the imperative ie mandatory provisions of these rules
According to him the respondentlandlord has not specified the amount of arrears due  in strict substantial compliance of Rule 4c and as such the present application for ejectment has to be thrownout
The answer to the above contention depends upon whether these rules are mandatory or directory which ques tion has to be adjudged in the light of the intention of the legislature as disclosed by the object purpose and scope of the statute
No doubt if the statute is mandatory  996 the things done not in the manner or form prescribed have no effect or validity but if it is directory the non compli ance may not lead to any serious and adverse consequence
A valuable guide for ascertaining the intention of the Legis lature is found in Maxwell The Interpretation of Statutes Twelfth Edition Chapter 13 at page 3 14 under the caption Intentions attributed to the legislature when it expresses none reads thus Passing from the interpretation of the lan guage of statutes it remains to consider what intentions are to be attributed to the legis lature on questions necessarily arising out of its enactments and on which it has remained silent      
It is impossible to lay down any general rule for determining whether a provision is imperative or directory Lord Cambell in Liverpool Borough Bank vs Turner  at pp 507508 observed No universal rule can be laid down for the construction of statutes as to whether manda tory enactments shall be considered directory only or obligatory with an implied nullifica tion for disobedience
It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed
 Lord Penzance in Howard vs Bodington at p 211 said I believe as far as any rule is concerned you cannot safely go further than that in each case you must look to the subject matter consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directo ry In Craies on Statute Law  Sixth Edition at page 63 the following quotation is found 997 When a statute is passed for the purpose of enabling something to be done and prescribes the formalities which are to attend its per formance those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute but those which are not essential and may be disregarded without invalidating the thing to be done are called directory See Montreal Street Rly
Co vs Normandin  With reference to non compliance of the directory enact ment in Craies on Statute Law  it is said at page 261 But on the other hand if a statute is merely directory it is immaterial so far as relates to the validity of the thing to be done whether the provisions of the statute are accurately followed out or not
 See also On the Construction of Statutes  by Crawford
In Woodward vs Sarsons at page 746 it is explained as to what is called an absolute enactment or mandatory enactment as follows An absolute enactment must be obeyed or fulfilled exactly but it is sufficient if a directory enactment be obeyed or fulfilled substantially
 In Seth Bikhraj Jaipuria vs Union of India 1962 2 SCR p 880 a question arose whether Section 1753 of the Government of India Act 1935 which requires that contracts on behalf of the Government of India shall be executed in the form prescribed is mandatory or directory
The Supreme Court at page 893 expressed its view as follows Where a statute requires that a thing shall be done in the prescribed manner or form but does not set out the consequences of non compliance the question whether the provision was mandatory or directory has to be adjudged in the light of the intention of the legisla ture as disclosed by the object purpose and scope of the statute
If the statute is manda tory the thing done not in the manner or form prescribed can have no effect or validity if it is directory penalty may be incurred for non compliance but the act or thing done is regarded as good 998 In Raza Buland Sugar Co Ltd vs Municipal Board Ram pur   certain questions arose for consider ation whether the whole of Section 1313 of UP Municipal ities Act was mandatory or the part of it requiring publica tion in the manner laid down in Section 943 of the said Act ie in a Hindi Newspaper was merely directory Wancboo J as he then was speaking for the majority said The question whether a particular provision of a statute which on the face of it appears mandatory inasmuch as it uses the word shall as in the present case is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor
The purpose for which the provision has been made and its nature the intention of the legislature in making the provision the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision have all to be taken into account in arriving at the conclu sion whether a particular provision is manda tory or directory
 See also K Kamaraja Nadar vs Kunju Thevar and Others and Ch
Subbarao vs Member Election Tibunal Hyderabad 13
It is apposite to refer to the observation of this Court in Hari Vishnu Kamath vs Syed Ahmad Ishaque  dealing with this problem It is well established that an enactment in form mandatory might in substance be directory and that the use of the word shall does not conclude the matter
 Reference may be had to 1 State of UP  Ors
vs Babu Ram Upadhya  and 2 Ajit Singh vs State of Punjab  The word shall in its ordinary import is obligatory
Nevertheless the word shall need not be given that conno tation in each and 999 every case and the provisions can be interpreted as directo ry instead of mandatory depending upon the purpose which the legislature intended to achieve as disclosed by the object design purpose and scope of the statute
While interpreting the concerned provisions regard must be had to the context subject matter and object of the statute in question
On a close scrutiny of the relevant rules referred supra in the light of the above principles of statutory interpre tation we are of the view that the non compliance of rule 4c ie the non mentioning of the quantum of arrears of rent does involve no invalidating consequence and also does not visit any penalty
From the above discussion we hold that the rules 4c 51 and 6 are not mandatory but only directory
In that view we see no force in the contention of the learned counsel that the non mentioning of the amount of arrears of rent due in the application for ejectment has adversely affected the proceedings of this case and as such the appli cation for ejectment is liable to be dismissed on that score
Accordingly we reject this contention also
In the present case the tenant himself was well aware of the amount of arrears of rent due about which we have already mentioned in the earlier portion of this judgment
The present objection as to the non compliance of the rules admittedly was not taken either in the written statement or before the Rent Controller or before the Appellate Authori ty
For the first time such a contention was raised before the High Court which has tightly rejected the same observ ing thus It has not been shown that any preju dice was caused to the tenant on account of this non compliance on the part of the land lord
 We are in full agreement with the above view of the High Court as no prejudice is writ large in the present case because proof of prejudice is also one of the necessary criteria besides non compliance of the provision to invali date the Act complained of as held by Chinnappa Reddy J in Dalchand vs Municipal Corporation Bhopal and Another In the result both the contentions raised by the appellant fail
For the reasons hereinbefore mentioned the appeal is dismissed with costs
YL Appeal dis missed


Summary:
The appellants are tenants
The premises in dispute is a shop building bearing No TC 887 MG Road Pazhavangadi Trivandrum part of a Pucca three storeyed building owned by one MP Phillip
As per the settlement the shop in dispute devolved on one of his sons while the shop was in the possession of the tenant
During the tenancy owner mortgaged the premises in dispute and the remaining portions to the first defendant with a direction to receive the rent from the tenant
The tenant was asked to attorn to the mortgagee
The first defendant in course of management of the property gave the building on lease to the appellants for a higher rent the earlier tenant having vacated the same
The owner thereafter executed the second mortgage with a direction to redeem the mortgage in favour of the first defendant and before the subsequent mortgagee took steps to redeem the mortgage the owner assigned his equity of redemption to the respondent
The Respondent and the subsequent mortgagee together as plaintiffs 1  2 filed a suit to redeem the mortgage of the first defendant impleading the appellants as parties and claimed recovery of the Khas possession of the building
The appellants contended i that they are tenants of the build ing inducted into possession by the mortgagee as a mode of enjoyment ii that the mortgage deed authorised the mort gagee to enjoy the building by letting it out and that they were not liable to be evicted through a decree of Court in redemption Suit without an order under the Kerala Building Lease and Rent Control Act 1965
The trial Court decreed the suit and directed recovery of possession of the Shop building
It took the view that the mortgagee could not induct a tenant and give him any right to continue in possession even after the redemption of the mortgage
975 On appeal the first appellate Court held that the disputed building was a shop building which was never in the enjoyment of the owner mode of enjoyment of the owner being by letting it out and when the mortgagee enjoyed the proper ty in that manner by letting it out the person put in possession as a tenant was entitled to continue in posses sion even after redemption until evicted under the Rent Control Act
It also found that the mortgage deed impliedly authorised the mortgagee to let out the building
In that view of the matter the trial Court s order was set aside
The Respondent thereupon filed a second appeal before the High Court The High Court took the view that it was not open to the mortgagee to induct a person into possession which conferred any right on the tenant to continue in possession even after redemption
Accordingly it allowed the appeal and a decree for eviction was passed
Hence this appeal by the appellants tenant
Dismissing the appeal but directing that the decree for eviction should not be executed till the 31st October 1989 if the appellants give usual undertaking to deliver vacant possession on 31st October 1989 this Court HELD That the mortgagor on redemption of mortgage gets back his own right he is not the successor in interest of the mortgagee
Interest if any created by the mortgagee on the mortgagor s right must disappear on ceasing of the interest of the mortgagee
983C D The limited estate created in favour of the mortgagee having disappeared all rights emanating from that limited estate disappear and the superior right of the mortgagor comes not in place of the mortgagee but as a result of an independent title and as such the mortgagor cannot be bound by any act created or any relationship contracted between the mortgagee and the tenant unless it is permitted by the mortgage deed 983G H The mortgagor s right of redemption and the mortga gee s right of foreclosure or sale are co extensive
984D Jadavji purshottam vs Dhani Navnitbhai Amaratlal  Ors and Pornal Kanji Govindji  Ors
vs Vrajlal Karsandas Purohit  Ors 1988 4 Judgment Today SC 307 followed
976 Raj Brij Raj Krishna  Anr
SK Shaw  Bros  Ms Raval  Co vs
KG Ram Chandran  Ors   V Dhanpal Chettiar vs Yesodai Ammal   Gian Devi Anand vs Jeevan Kumar  Ors  and G Ponnial Thevar vs Nalleyam Perumal Pillai  Ors  not applicable