G. BHAVANI PRASAD, J: -

Rule 5 of the Andhra pradesh building (Lease Rent and eviction) is only directory and not mandatory as section 8 of the andhra pradesh building (Lease, Rent and evidence) control act, 1960 (for short “the act”) is only directory and not mandatory, according to the tetant unsuccessfully before the rent controller and in appeal.

2. The two civil revision petition in CRP Nos. 4283 and 2002 by the tenant primary advancing such a contention come up before a learned single judge, who considered a conflict of views to be existing in the dicisions of the court and the Apex Court on the question. Consequently, a reference was made formulating the following questions:

(1) When Section 8 of the A.P. Building (Lease, Rent and Eviction) Control Act 1960 is directory, can Rule 5 of the Rules framed for working out the said provisions be treated as mandatory?

(2) Whether deposit of rent into Court is sufficient compliance and can be treated as payment to the landlord?

(3) Whether failure to deposit rent challans into Court automatically amounts to willful default?

(4) Whether Rule 5 of the Rules goes contra to the provisions of Section 10(2)(i) and proviso of the Act?

3. A Division Bench to which one of us (Justice G. Bhavani Prasad) is a party, to which the cases were referred, considered that the questions involved of frequent recurrence need a more authoritative pronouncement, and consequently, the cases came up before us.

4. Sri KK Waghray, leamed Counsel for the petitioner and Sri M Basith AU Yavar, learned Counsel for the respondents are heard in extenso. The learned Counsel referred to a number of precedents, which will be referred to in due course. In short, it was argued for the tenant that Rule 5 sub-rule (4) of the Rules is merely directory and any non-compliance, per se, cannot be considered as wilful default, more so, in the light of Section 10(2)(i) and proviso there under of the Act. The same is repelled for the landlord, in belief, contending Rule 5 sub-rule (4) of the rule to be mandatory, once the tenant opted for taking recourse to section 8 of the act and any non-compliance with the statutorily prescribed procedure will, ex facie make the tenant a willful defaulter and that Section 10(2)(i) and proviso there under of the Act and Rule 5 of the Rules governed different situations and are not mutually conflicting.

5. The principles governing interpretation of statutes with particular reference to the mandatory or directory nature of statutory provisions are well settled and in Pratap Singh v. Shri Krishna Gupta and others, AIR 1956 SC 140, the Apex Court deprecated the tendency of the Courts towards technicality and pointed out that substance must take precedence over mere form. One of the well-accepted tests for determining whether a provision is directory or mandatory is to see whether the enactment provides for the consequence flowing from non-compliance with the requirement prescribed, said the Supreme Court in Administrator, Municipal Committee, Charkhi Dadri and another v. Ramjilal Bagla and others, (1995) 5 SCC 272.

6. Similarly, in Kailash v. Nanhku and others, 2005 (3) ALD 102 (SC) = (2005) 4 SCC 480, it was reiterated that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the, process of justice dispensation and unless compelled by express and specific language of the statute, the provisions of any procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. A provision not prescribing any penal consequences was considered to be not mandatory in nature. Notwithstanding that the rule under consideration by the Apex Court is a part of procedural law, and hence, directory, still it was held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure there from would be by way of exception. Extension of time may be allowed

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