Holding

Section 11A is directory, not mandatory; the court retains discretion and the tenant's defence should not be automatically struck off for a default in rent deposit.

Summary

In a suit for eviction under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, the landlord sought to have the tenant's defence struck off for failing to deposit rent as ordered under Section 11A. The trial judge refused to strike off the defence, but the High Court reversed that decision, holding that the word "shall" in the statute made the consequence mandatory. On appeal, the Supreme Court examined whether "shall" in Section 11A is mandatory or directory and whether the court retains discretion to relieve a tenant of the harsh consequence of striking off the defence. The Court held that the provision is directory, not mandatory, and that the court may exercise discretion, especially where the default is technical or excusable. Consequently, the High Court's order was set aside, the trial judge's order restored, and the appeal was allowed.

Issues considered

The interpretation of the word "shall" in Section 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 – whether it imposes a mandatory consequence of striking off the tenant's defence upon default.
Whether a default in depositing rent under a court direction automatically results in striking off the defence, or whether the court retains discretion to grant relief.
Whether the direction for rent deposit made before an ex‑parte decree remains effective after the decree is set aside.

Legislation cited

Subjects

evictionrent defaultstatutory interpretationmandatory vs directorySection 11ABihar Buildings Actdefence striking offcivil procedurelandlord-tenant

Judgment

A

·GANESH PRASAD SAH KESARI & ANR.

v.
B
LAKSHMI NARAYAN GUPTA

April 18, 1985

[D.A. DESAI AND RANGANATH MISRA, JJ.J
c
The Bihar. Buildings (Lease, Relit and Eviction) Control Act 1941, Sec-
tion llA.

Suit for eviction of tenant for default in payment of rent-Faliure of tenant
to comply with court's order to depoJit rent-Striking off defence oganist evic-
llon-Whether legal. D

Interpretation of Statutes :

Statute-Words 'may' and 'shall' used in different parts of a provlsion-
Whethermandatory or directory-Ascertainment of by the Court.

Words & Phrases : E

'Shall order the defence against ejectment be struck ojf'-Meatiing of-
Bihar Building (Lease, Rent and Eviction) Control Act 1941, Secttori 11 A.

The respondent-plaintiff filed a suit for eviction against the appe11ant-
defendant on the ground that the tenant committed default in payment of F
rent. The defendant contested the suit contending that he was not in dcfau1t.
An application was filed by the respondent-landlord for a direction under Sec.
llA of the (Bihar Buildings Lease, Rent and Eviction) Control Act, 1947 to
the defdndant-tenant to deposit the rent in arrears ; and a further direction
to deposit the future rent from month to month. The trial judge ordered the
appeltant to deposit the rent in. arrears at the rate of Rs. 32 Per month and
thereafter to continue -to deposit the rent at the rate of Rs. 12.20 per month.
G
ThC defendant preferred 3. revision petition which was dismissed. ~

The suit was fixed for bearing. The tenant moved an application for .
adjourn.meat which was rejected, the plaintiff witnesses were examined and the ·
suit was decreed ex-parte.

On an application moved by the defendant praying for relief under H
826 SUPREME COURTS REPORTS (19g$) 3s.c.ti..
Order JX Rule 13 CPC, the _trial judge set aside the cx-parte decree and set
A down the suit for proceeding further from the stage it was decreed ex-parte.

The respondent-landlord moved an application contending that as there
was irregularity and delay in depositing the rent, the defence of the appellant
be struck off for his failure to strictly comply with the order made under
Section 1lA, but the trial judge rejected it on the ground that the earlier order
B was made prior to ibe date on which the suit was decreed ex-parte; on ihe set-
ting aside of the ex-parte decree and revival of the suit, the order giving
directions for deposit of future rent does not per se revive and therefore even
if there was some default on the part of ths tenant in depositing the rent, his
defence cannot be struck off.

c - The respondent-landlord moved a revision petition before the High
Court. A Division Bench interpreted the expression 'shall' in Sec. l IA of
thC. Act, as mandatory, and finding that there was default in making the
deposit for the months mentioned in the landlords' application, it could
be shown that there was non-compliance with the order passed under Sec. llA.
and therefore 'the tenant will have to bear the consequence thereto.' It further
held that 'once a default is found, the courts are powerless ; the statutory
D consequences are bound to follow,' It made the rule absolute and
set aside the order of the trial judge refusing to strike off the defence of the
appellant and directed the trial judge to note that the defence of the appellant
would be deemed to have been struck off due to non-compliance of the order
passed under Section llA.

Allowing the Appeal to this Court,
E
HELD : 1. (i) Failure to comply with an earlier direction should not
necessarily visit the te'lant with the consequence of his defence being struck
off because there might be m)riad situations Jn which default nlay be com-
mitted, The Court should adopt such a construction as would not render the
court powerless in a situation ia which ends of justice demand relief being
F granted. [835 E-F]

In the instant case, the High Court had adopted a co9struction of
Section llA of the Act which would defeat the beneficient nature of-the pro-
vision. The decision of the High Court is set aside because it proceeds on the
basfa that ollce there is default, the tenant must suffer the consequences of
G it. The trial judge held that once a suit ended in an ex-par~e decrcC the
earlier direction for making neceseary deposit given under Sec. llA would
remain ineff;ctive ~ven if the ex-parte decree is set aside and would nOt re-
vive, was rightly disapproved by the High Court. The trial judge did grant
relier to the tenant by refusing to strike off the deferice, but on an erroneous
view of the law. The High Court reversed it on yet another erroneous view of
law holding that tile court was powerless to grant any relief once a dt:fa~_lt is
H established. [835 F-H ; 836 A-BJ.
G.P.S. KF.SARI v. L.N. GUPTA

(ii) The tenant has deposited all the arreals. There was some irregula· A
rity in 1naking the deposit but it was not of such a nature as to visit the tenaJ?-t
with the consequece of striking off his defence. The judgment of the High
Court directiug that the defence be deemed to be struck off is set asiJe and the
order of the trial judge is reslored. [836 CJ

2 (i) Section I IA, can be styled as a check on the tendency of the defen·
dant to protract the litigation by frivolous d~fcnces more espcial!y where the
B
duty to pay the rent is unmistJkably admitted. [830_FJ

' (ii) Jn a suit for eviction, Sec. llA enables the court to give a direction
to pay rent which is claimed to be iii arrears as also to compel, the defendant
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 c
court to detennine the rate of rent at which the deposit shall be made, where 'J
in a case there is a dispute as to the rate of rent. [830 G]

(iii) An undeniable feature of the tenancies in this country is that,
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 a landlord. Therefore, where
eviction is sought on tbe ground of non-payment of rent, it places a tenant at n'
a comparative disadvantage if the landlord chooses to claim rent at the rate
which is beyond the capacity of the tenant to pay. In such a situation, the
tenant will be exposed to double jeopardy in that on a prima facie pleading he
will be direCted to deposit the rent at the rate claimed by the Ja[]dford, if the
court has no power to determine rate at an interim stage, Such power is
confe~red by Section l lA on the Court. It is whole-some provision Which
would advance justice. (830 H ; 831 A-Cl
E
3. Where the legislature-uses the two words 'may' and 'shall' in two diffe.;
rent parts of the same provision prima facie it would appear that the Legislature
n1anifested its intention to make one part directory and another mandatory. But
that by itself is not decisive. The power of the court still to ascertain the
real intention of the Legislature by carefully examining the scope of the sta-
tute to find out whether the provision is directory or mandatory. remains un-
F
!mpaired even where both the words are used in the same provision,
· [833 H·; 834 A]

In the instant case, if one ascertains the intcndment of the legislature,
·the purpose for which the provisision was enected, the beneficent nature of the
st.atute-to protect the harassed tenaht, it does not require long argument to
hold that the expression 'shall' was used not ""With a view to making G
the provision 1nandatory or imperative but it to was be directory. Such~ a
costruction would advance the purpose for which the Act was enacted
namely the protection of tenants. It will also not render th~ court powerless
in the face of harsh facts where striking off the defence would be nothing
short of miscarriage of justice. [833 D·E]
H
SUPREME COURT REPORTS t1985j 3 s.c.tl.
A R.V. Inhabitants of Great Bolton, (182S) SB & C 71 at 74. Govind/al
Chaganlal Patel v. The Agricultural Produce Market Co1nmitte~ ; Godhra and
others, [1976] l SCR 451, referred to.

4. Where ihe court fixes a time to do thing, the court always retains
the power to extend the time for doing so. Sec. 148 of the" Code of Civil
B procedure provides that where any period is fixed or granted by the court
for the doing of any,act prescribed or aHawed by the Code, the Court may,
in its discretion, from time to time, enlarge such period, even though the
· period originally fixed or granted may have expired. The pfinciple of this ,
section must govefn in not whittling down the discretion conferred on the court,
by Section l!A of the Act. [834 F-G]

c Shyamcharan Sharma v. Dharanidas, [)980] 2 SCR 334, refefred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1365
of 1978

D From the Judgment and Order dated 11.8.77 of the Patna
High Court in Civil Revision No. 585 of 1976.

B.P. Singh, R. Kumar and R. Prakash for the Appellants.

Mrs. Gian Sudha Misra for the Respondent.
E

The Judgment of the Court was delivered by

DESAI, J. Where a plaintiff in a suit bitterly complains that the
defendant would be getting unfair advantage of his own lapse, if we
F were to interfere with the judgment rendered by the High Court,
we put ourselves on caution whether such be the outcome of our
setting aside the order under appeal. Unwittingly, this Court should
not be a party to the conferment of an undeserved advantage on a.
party to a proceeding guilty of a lapse though remediable and even
unintentional. Deeper probing into the facts reveals that the boot
G
is on the other foot in that the respondent-plaintiff is wholly to be
blamed for the delay.

The facts first. The respondent-plaintiff field a suit for evic-
tion against the appellant-defendent on the only ground that the
tenant committed default in payment of rent for the period May,
II 1969 to December, 1971. The defendant contested the suit inter-
0.P.S. KESARI v. L.N. GUPTA (Desai, J.) 829

alia contending that. he wai not in defa·1lt. Th~re followed an A,
applicaiion by the respondent-landlord for a direction under Sec.
llA of the Bihar Buildings (Lease, Rent and Eviction) Control Act,
1947 ('Act' for short). Section 1 lA reads as ·under:

"11A. Deposit of rent by tem.nts.in suits for ejectment-
B
If in a suit for recovery of possession of any building the
tenant contests the suit, as regards claim for ejectment the
landiord may make an application at any stage of the suit
for order on the tenant to deposit month by month rent at a
rate at which it was last paid and also the arrears of rent, if
any and the Conrt, after giving an opportunity to the par- c·
ties to be heard, may make an order for deposit of rent at
such rate as may be determined month by month and the
arrears of rent, if any and on failure of the tenent to depo- ·
sit the arrears of rent within fifteen days of the date of the
order or the rent at such rate for any month by the fif-.
tcenth day of the next following month, the Court shall D
order the defence against ejectment to be struck out and
the tenent to be placed in the same position as if he had .
not defended the claim to ejectment. The landlord. may
also apply for permission to withdraw the deposited rent·
without prejudice to his right to claim decree for ejectment
and the Court may permit him to do so. The Court may E
further order recovery of cost of suit and such other com-
pensation as may be determined by it from the tenant."

The prayer in the application was that the defendant-tenant
be ·directed to deposi.t the rent in arrears upto and inclusive of June
F
1973 within a period of fifteen days from the date of the order and
a furthH direction be given that he should continue to deposit the
rent from month to month. The learned Judge made an order
directing the appellant to deposit rent for the period upto and
inclusive of June 1973 at the rate of Rs. 32 per month and there
after to continue to deposit the rent from month to month at ·the · G
rate of Rs.12.20 per month. The tcnent preferred a revision peti-
tion which was dismissed on March 26, 1974. The such was• fixed
fore baring on January 28, 1975. The tenant moved an application
for adjournment which was rejected. Plaintiff's witnesses were
examined and the suit was decreed ex-parte on January 30, 1975.
On an application moved by the defendant praying for relief uncler H
gjo SUPRBMB COURT RBPORTS [1985) 3 S.C.R.
A Order IX Rule 13, Code of Civil Procefare, the le1rned Judge set
aside the ex-pa rte decree and set down the suit for proceeding further
from the st;ge where it was docreod ex·pHte. 0,1 Janu1ry 5, 1976,
the respondent-landlord moved an application praying that as there
was irregularity in depositing the rent for the mJnths of August to
October, 1975, defence of the appellant be struck off, for his failure
B
to strictly comply with the order made under Section IIA. After the
appellant filed his rejoinder, the learned Jugde beard the applica-
tion and rejected the same on the ground that as the earlier order
was made prior to the date on which the suit was ·decreed exparate,
on the setting aside of the exparte decree and revival of the suit,
c the order giving directions for deposit of future rent does not per se
revive and therefore even if there was some default on the part of
the tenant in depositing the rent for the months from February to
April, 1979, his defence cannot be struck off. Promptly, the res-
pondent-land.lord moved a revision petition before the High Court
being Civil Revision No. 585 of 1976. A Division Bench of the
D High Court heard and disposed of the revision petition on August
11, 1977. The learned Judges of the High Court mad,e the rule
absolute and set aside the order of the learned trial Judge refusing
to strike off the defence of the appellant and directed t.he learned
Judge to note that the defence of the appellant will be deemed to
have been struck off due . to non-compliance of the order dJted
E April 26, 1973. Hence this appeal by special leave which is being
heard after seven years.

Section !IA, to some extent, can be styled as a checK on the
tendency of the defendent to protract the litigation by frivo lolls
F defences more especially where the duty to pay the rent is unmistak-
ably admitted. In a suit for eviction, Sec. I IA enables the court to
give a direction to pay rent which is claimed to be in arrears as also
to compell the defendent 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 court to deter-
G mine the rate of rent at which the deposit shall be m1de, where·
in a case there is a dispute as to the rate of rent. It is an undeni-:
able feature of the tenancies in this country that more or less exclud-
ing the metropolitan areas, the tenency is generally oral and no
written record is usually available to furnish evidence is to the
terms of lease. Giving a receipt for the rent paid has not still
become a part of the culture of a la11dlord, Therefore, where

"
G.P.S. J(ESARI v. L.N. GUPTA (Desai, J.) 831

ev.iction is sought on the ground of non-payment of rent, it places A
.a tenant at a comparative disadvantage if the la.ndlord chooses to
claim rent at the rate which is beyond the capacity of the .tenant to
pay. In such a situation, the tenant will be exposed to double
jeopardy in that on a prima facie pleading he .will be dire.cted 1to
deposit the rent at the rate claimed by the landlord, if the court
has no power to determine rate of rent at an interim stage. Such B
power is conferred by Sec. 11 A on the court. The court can also
determine as to froth what date the tenant appears to be in arrears
so that an appropriate direction can be given that the rent in arrears
may be deposited within the time stipulated by the court as also
future rent may be deposited regularly in the court. It is a whole
some provision which would advance justice.
c

Now where power is conferred on the court to give such
directions, a sanction had to be created to guard against the fail-
ure to comply with the court's directions. This sanction is. to be
found in the conferment of power on the court to strike: off the D
defence of the tenant if the tenant fails to comply with the order
of the court giving directio,ns for deposit. Such a sanction would
again advance justice. So far there is no dispute. ·

The contention of the landlord which has found favour with
the High Court is that the moment the failure of the tenant to E
comply with the earlier order is brought to the notice of the court,
without anything more the defence has to be struck off. This view
of the court is founded on the use of the expression 'shall' in that
part of section by which power in conferred on the court to strike
off the defence. The relevant part of the expression reads thus :
F

" ......... on failure of the tenant to deposit the arrears
of rent within fifteen days of the date of the order or the
rent at such rate for any month by the fifteenth day of next
following month, the court shall order the defe.nce against
ejectment to be struck off and the tenant be placed in the G
same position as if he had not defended the claim to
~jectment."

Interpreting this expression 'shall' as mandatory in the afore-men-
tioned clause, the High Court was of the opinion t~at as there was
\iefault in making the deposit for the month herein b\'fore me.ntioned H
832 SUPREME COURT REPORTS [1985] 3 S.C.R.

A which would show non-compliance with the order dated July 26, 1973
passed under Sec. I IA and therefore 'the tenant will have to bear
consequences thereto.' The High Court further observed that 'once a
default is found, the courts are ponerless ; the statutory conse-
quences are bound to follow.'
8
/
In the back-drop of the rival contentions, the neat question
that arises is : whether the use of the word 'shall' in the expression
herein before extracted makes the provision imperative or manda-
tory or the court still retains the discretion to relieve against the
c default?

Ordinarily the use of the word 'shall' primafacie indicates
that the provision is imperative in character. However, by a catena
of decisions, it is well-established that the court while considering
whether the mere use of the word 'shall' would make the provision
0 imperative, it would ascertain the intenedment of the legi~lature and
the consequences flowing from its own construction of the word
'shall'. If the nse of the word 'shall' makes the provision impera-
tive, the inevitable consequence that flows from it is that the court
would be powerless to grant any relief even where the justice of
the case so demands. If the word 'shall' is treated a.s mandatory
E the net effect would be that evenwh e" the default in complying
with the direction given by the court is technical, fortuitbus, unin-
tended or on account of circumstances beyond the control of the
defaulter, yet the court would not be able to grant any relief or
assistance to such a person. Once a default is found to be of a
F very technical nature in complying with the earliar order, the court
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 its order. To illustrate, if the tenant while he has on
the way to the court on the.J5th day to deposit the rent for the
just preceeding month as directed by an order under Sec. llA, met
with an accident on the road and could not reach the court be-
G
for the court hours were over, should he be penalished by his defence
being struck off. Even if the court is satisfied that be was on the way
to the court to make the necessary deposit, that he had the requi-
site amount with him, and that he started in time to reach the
court within the prescribed court hours and yet by circumstances
H beyond his control, he met with an accident would the court be
powerless to grant him relief? This illustration would suffice to
<l.P.S 11'.ES~TU v. t.N. GUPTA (Desai, i.) 833

the intendment of the legislature that it never used the word 'shall' A
to make it so imperative as to render the court powerless.

The statute in which the expression is used is The Bihar Buil-
dings (Lease, Rent and Eviction) Control Act, 1947. It is a
statute enacted with a view to providing a fetter on the right of a
landlord to evict tenant at his whim or fancy. The long title of
the Act shows that it was enacted to regulate the letting of buildings ll
and the rent for such buildings and to prevent unreason able eviction
of tenants therefrom in the Province of Bihar. A provision in such a
statute primarily enacted for the protection of tenants against unrea-
sonable eviction that the court is required to find. out whether the
word 'shall' was used as to make the provision mandatory. or impe-
rative. Obviously if one ascertains the intendment of the legis- c
lature, the purpose for which the provision was enacted, the
beneficient nature of the statute and to protect the harassed tenant
obviously it does not require long argument to hold that the expres-
sion 'shall' was used not with a view to making the provision
mandatory or imperative but it was to be directory. Such a cons-
truction would advance the purpose for which the Act was enacted D
namely the protection of tenants. It will also not render the court
powerless in the face of harsh facts where striking off the defence
would be nothing short of miscarriage of justice.
E
Mrs. Gyan Sudha Misra, learned counsel however contended
that where the expression 'may' and 'shall' both are used in the
same provision the legislative intendment is unmistakable that the
provision where the word 'shall' is used must be held to be manda-
tory because the previous use of the expression 'may' shows that the
legislature was conscious, which part of the provision is to be F
directly and which other part to be mandatory. She relied upon a
statement in Maxwell on the Interpretation of Statutes, 12th Edn,
Page 282 where in it is stated relying upon the decision in R. v.
Inhabitants of Great Bolton(1) that "where the Legislature in the
same sentence uses different words, we must presume that thei were
G
used in order to express different ideas." Obviously where the
legislature uses two words 'may' and 'shall' in two different parts of
the same provision prima facie it would appear that the legislature
manifested its intention ·to make one part directory and another

(I) [1828] 8 B & C 11 at 74 H
834 SUPREMll COURT RBPORTS (1985] 3 s.c.li..
A mandatory. But that by itself is not decisive. The power of the
court still to ascertain the real intention of the Legislature by care-
fully examining the scope of the statute to find out whether the
provision is directory or mandatory remains unimpaired even where
both the words are used in the same provision. In Govindlal
Chagganlal Patelv. The Agricultural Produce Market Committee,
B
Godhra and others('), Chandrachud, CJ. speaking for the Court
approved the following passage in Crawford on 'Statutory Construc-
tion' (Ed. 1940 Art. 261, p. 516) :

"The question as to whether a statute is mandatory
c or directory depends upon the intent of the lagislature
and not upon the language in which the intent is clothed.
The meaning and intention of the legislature must govern
and these are to be ascertained, not only from the phrasaco-
logy of the provision, but also while considering its
nature, its design and the consquences which would follow
D from construing it the one way or the other."

Applying this well-recognised canon of construction the con-
clusion is inescapable that the word 'shall' used in the provision
is directory and not mandatory and must be read as 'may'.
E
This construction also commends to us for the additional
reason that where the court fixes a time to do a thing, the court
always retains the power to extend the time for doing so. Sec. 148
or'the' Code of Civil Procedure provides that where any period is
fixed or granted by the court for the doing of any act prescribed or
F
allowed by the Code, the Court may, in its discretion, from time to
time, enlarge such period, even though the period originally fixed
or granted may have expired. The principle of this section
must gov'erri in not whittling down the discretion conferred on the
court.
G
The view which we are taking is in accord with the construc-
tion put by this court on a provision imp1rimateria in a similar sta'
tute. In Shyamcharan Sharma v. Dharamdos(2) a question that arose

(I) [ 1976] I S.C.R. 451.
H (2) (1980] 2 S.C.R. 334.
o.i>.S'KESARi v. L.N. GUPTA (Desai, i.) 835
before this Court wa. wheth~r the construction.put by the High A
C'ourt on Sec. 13 (!.) read with Sec. 13 (6) of the Madhya Pradesh
Accommodation Control Act, 1961 accords with the intendment of
tlie Legislature. The relevant provision provides that on an appli-
cation, a tenant can be directed by the Court to pay to the land-
lord an amount calculated at the rate of the rent at which it was
paid for the period for w~1 ich a tenant may have made a default
including the period subsequent thereto upto the end of the mon~h
previous to that in which the deposit or payment is m1d" and shall
thereafter continue to deposit or pay month by month by the
fifteenth of each succeeding month, the sum equivJlent to the rent. '
It was contended that the provision il mandatory so that the court
has no power to extend the time initially fixed by it for making the {
deposit. A submission before the court was tllat the expression
used in sub-sec. (!)discloses the legislative intent and the use of
the word 'may' in sub-sec. (6) would not make the provision direc-
tory. The Court, speaking through 0. Chinnappa R~ddy, J. after
ascertaining the intendment of the Legislature held that the court D
has the jurisdiction to extend time once fixed for deposit or payment
of monthly rent falling due after the filing of the suit.

Failure to comply with an earlier direction should not neces-
sarily visit the tenant with the consequence of his defence
E
being struck off because there might be myriad situations in which
defaulf may be committed. The Court should adopt such a construe'
tion as would not render the court powerleS3 in a situation in which
ends of justice de:mnd relief b'ing granted. The High Court has
adopted•such a construction which would defeai the beneficent na-
ture of provision. The decision of the High Court will have to be set I•
aside because it proceeds on the basis tliat once there is default,
the tenant must suffer the consequences of it.

The learned trial Judge had held that once a suit ended
' in exparte decree the earlier direction for making necessary deposit
given under Sec. 11 A would remain ineffective even if the exparte
decree is set aside and would not revive was rightly disapproved by
the High Court. To that extent the view of the learned trial Judge
was unsustainable.

The learned trial Judge did grant relief to the tenant by
refusing to strike off the defence, of course, on an erroneous view
836 SUPREME COURTS REPOR ts [1985) 3 S.C.R.

of law that the direction did not revive after the setting aside of
A the ex-parte decree. And the High Court revers~d it on another
erroneous view of law that the court was powerless to grant any
relief once a default is established ? The question then is what re-
lief we should grant ?

The tenant has deposited all the arrears. There was some
B )
irregulerity in making the deposit but it was not of such a nature
as to visit the tenant with the consquence of striking off his de-
fence. Therefore the Judgment of the High Court directing that
the defence be deemed to be struck off is set aside and the order
of the learned trial Judge is restored for the reasons herein stated.
c .>-·
This appeal is allowed accordingly and the matter is remitted
to the trial court to proceed further with the suit from the stage
where the defence of the present appellant was struck off. The
defence will be treated as part of the proceedings and suit shall be
proceeded with accordingly. As ihe matter is delayed for long,
D we direct that the suit shall be accorded priority hy the trial court
and shall be disposed of within a period of six months from the date
of this judgment.

Mrs. Misra on behalf of the respondent submitted that the
respondent has filed a second suit for eviction on the ground
E of personal requirement. If that is pending the saine must be
heard alongwith the suit from which the present appeal arises.

We leave the parties to bear their respective costs both in the
High Court as well as in this Court. Costs in the trial ·court will
F abide the outcome of the suit.

N.V.K. Appeal Allowed ;
G