Full Judgment
S.N. Hussain, J.
1. Heard learned counsel for the petitioner and learned counsel for the opposite party.
2. Petitioner is the defendant in Title Eviction Suit No. 29 of 2002 which was filed by the opposite party for eviction of the defendant on various grounds.
3. Petitioner is aggrieved by order dated 25-1-2005 passed in the aforesaid suit by which the learned Sub-Judge-VIII, Patna, struck off the defence of the defendant against his ejectment due to non-compliance of its earlier order dated 15-7-2004 passed under Section 15 of the Bihar Building (Lease Rent and Eviction) Control Act, 1982 (hereinafter referred to as the 'Act' for the sake of brevity.
4. The principle of law is settled by Hon'ble Apex Court in the case of Ganesh Prasad Sah Kesari and Anr. v. Lakshmi Narayan Gupta, reported in AIR 1985, SC 964, in which it was held that by applying the well recognised canon of construction the conclusion is unescapable that the word 'shall' used in Section 15 of the Act is directory and not mandatory and must be read as 'may'. Furthermore, failure to comply with an earlier direction should not always necessarily visit with the same consequences because there might be myriad situations in which default may be committed. The Court shall not adopt such a construction as would render the Court powerless in a situation in which ends of justice demand relief to be granted.
5. In the instant circumstances, the specific case of the petitioner was that due to the ailment of his mother he could not deposit the amount of rent as per the direction of the Court and in support of his contention the defendant had produced the prescriptions of the Doctor. The learned Court below has rejected the contention of the defendant-petitioner on the ground that the prescriptions of the Doctor shows that defendant's mother was checked up by the Doctor on 12-8-2004 whereas the order for payment was made on 15-7-2004 and hence the learned Court below assumed that the defendant-petitioner had ample opportunity to comply with the said order dated 15-7-2004.
6. In my view, this stringent conclusion can not be arrived at in the instant case as before getting the check up done by the Doctor, a person specially an old lady may be ailing for some time and naturally if a mother is in distress her son can not be expected to be as prompt as in the normal circumstances.
7. In the aforesaid circumstances, this civil revision is allowed and the impugned order is set aside, subject to deposit of the entire dues of rent @ Rs. 2300/- per month for the months of September, 2001 to June, 2005, by the defendant-petitioner in the Court below by 15th of July, 2005, in one lumpsum and also subject to deposit of regular rent of each month thereafter by the 7th of the next succeeding month. If the said conditions are fulfilled, the learned Court below will proceed with the suit in accordance with law. The plaintiff-opposite party will be at liberty to withdraw the amount of rent so deposited by the defendant-petitioner.