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IN THE HIGH COURT OF BOMBAY
S.M. Jhunjhunuwala, J.
Ratnakar D. Patade.... Appellant.
Versus
Smita Pandurang Dalvi and others.... Respondents.
A.O. No. 195 of 1995 along with A.O. No. 196 of 1995, decided on 2-8-1995.
Advocates appeared :
Y.S. Jahagirdar i/b M/s. Chitnis Vaithy Co., for the appellant.
C.R. Dalvi with Arvind A. Malgaonkar, for respondent Nos. 1 to 13, 15 to 20, 22 to 24, 26 to 31, 33 to 37.
R.S. Apte with M.G. Gawde, for respondent Nos. 14, 25, 32 and 38.
A.L.N. Khatri, for the respondent No. 21.
It is correct that the word may generally does not mean must or shall. But it is well-settled that the word may is capable of meaning must or shall in the light of the context. As held by the Supreme Court in the case of State of Uttar Pradesh v. Jogendra Singh, AIR 1963 SC 1613 on which reliance has been placed by the learned counsel, where a discretion is conferred upon a public authority coupled with all obligation, the word may which denotes discretion should be construed to mean a command, In determining the question whether a provision is mandatory or directory, the subject-matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the Courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed.
The difference between a mandatory rule and a directory rule is that while former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. As held by the Supreme Court in the case of Sharif-ud-bin v. Abdul Gani Lone, AIR 1980 SC 303, whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequences should not follow. Rule 11(1) lays down that failure to comply with Courts order leads to a specified consequence and on fair construction thereof, it is clear that if a party commits default in complying Courts order or contravene it though the consequence as provided therein has to follow. The whole purpose of Rule 11(1) would be frustrated if the word may in sub-section (1) would receive construction to mean discretionary or directory. In Courts view keeping in mind the general object intended to be secured and carefully attending to the scope of the provision. Rule 11(1) of the Code of Civil Procedure is mandatory in nature and the trial Court has erred in construing it as discretionary in nature.
Use of word may-Connotation.
It is correct that the word may, generally does not mean must or shall but it is well-settled that the word may is capable of meaning must or shall in the light of the context. As held by the Supreme Court in the case of State of Uttar Pradesh v. Jogendra Singh in AIR 1963 SC 1618 on which reliance has been placed by the learned course, where a discretion is conferred upon a public authority coupled with an obligation, the word may which denotes discretion should be construed to mean a command. In determining the question whether a provision is mandatory or directory, the subjecto matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory.
2. The appellant has filed the suit in the City Civil Court at Bombay, inter alia for an order of perpetual injunction against the respondents herein, who are defendants in the suit, restraining them from disturbing the appellants use, occupation, possession and enjoyment of the suit land, including the building and/or forcibly dispossessing the appellant therefrom as also for an order of permanent injunction restraining the respondents from in any manner disturbing the appellant, his architect, contractors, engineers and workmen from carrying on and completing the work of construction of three buildings. In the suit, the appellant took out a Notice of Motion No. 1052 of 1992 for interim reliefs in terms of perpetual injunction sought in the suit. Some of the respondents took out a Motion No. 2037 of 1992 in the suit for appointment of Court Receiver, High Court, Bombay, as Receiver and for other reliefs prayed for therein. Both these Notices of Motion were disposed of by Judge Shri Gangurde of that Court as per the order passed on 1st July, 1992. The appellant was directed to continue the construction work in respect of the suit premises which was then left incomplete to the extent of 20% and to complete the same by 31st October, 1992 and to hand over possession to each of the respondents of the respective flats for which agreements were entered into by and between the appellant and those respondents. It was ordered that if the appellant for any reason failed to complete the construction work by 31st October, 1992, the respondent would be at liberty to take over completion of the then incomplete construction work on and from 1st November, 1992. Further directions were also given by the learned Judge while disposing of the said Notices of Motion. On 7th September, 1992 the appellant entered into an agreement with one Messrs. Deshmukh Associates for completion of the balance construction work in respect of the suit premises. According to the appellant though the appellant had completed the balance construction work as per the said order dated 1st July, 1992, the respondents failed and neglected to pay the balance amount payable by them to the appellant. Since according to the respondents, the appellant did not complete the balance construction work as per the said Order dated 1st July, 1992, the respondents took out a Notice of Motion No. 6965 of 1992 for holding the appellant in contempt of the Court and for appointment of the Court Receiver, High Court, Bombay, as Receiver and Court Commissioner as prayed for therein. Though an application for grant of ad-interim relief in the said Notice of Motion No. 6965 of 1992 was made on behalf of the respondents, as per the order passed on 18th December, 1992 by Judge Shri Gangurde, no ad-interim relief was granted to the respondents. An appeal from Order No. 1366 of 1992 was therefrom preferred by the respondents wherein Shri N.N. Shrikhande was appointed Commissioner to submit report about incomplete items of construction, if any.
3. A report dated 9th January, 1993 was submitted by the said Shri N.N. Shrikhande of Messrs. Shrikhande Consultants Pvt. Ltd, Engineering Management Software Consultants, showing that construction work was practically completed and that the flats were ready for occupation. On 25th January, 1993, the said appeal from Order No. 1366 of 1992 was dismissed by Pat
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