S. Sundaram Pillai Vs. V.R. Pattabiraman [1985] INSC 13 (24 January 1985)
1985 Latest Caselaw 13 SC

S. Sundaram Pillai Vs. V.R. Pattabiraman [1985] INSC 13 (24 January 1985)

FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA VARADARAJAN, A. (J) MUKHARJI, SABYASACHI (J)

CITATION: 1985 AIR 582 1985 SCR (2) 643 1985 SCC (1) 591 1985 SCALE (1)74

CITATOR INFO: F 1992 SC 184 (6)

ACT:

Rent Control-Tamil Nadu Buildings (Lease and Rent Control) Act 1960, sec. 10(2 J(i)-Proviso and Explanation- Scope of-Wilful default Meaning of.

HEADNOTE:

Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960(for short, the Tamil Nadu Act) deals with the eviction of tenants and postulates that a tenant shall not be evicted whether in acquisition of a decree or otherwise except in accordance with the provisions of s.10 or ss. 14-16 Section 10(2)(i) of the Tamil Nadu Act provides for the eviction of a tenant on the ground of non-payment of rent. It lays down that where the Controller is satisfied that the tenant has not paid or tendered the rent within 15 days after the expiry of the time fixed in the Agreement y f tenancy or in the absence of any such Agreement, by the last date of the month next following that for which the rent is payable, he (tenant) undoubtedly commits a default The proviso to sub-s.2 provides that in any case falling in clause (i), if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may, notwithstanding anything contained in s.11, give the tenant a reasonable time, not exceeding 15 days to pay or tender the rent due by him to the landlord upto the date of such payment or tender and on such payment or tender the application shall be rejected. The Explanation which was added by Act 23 of 1973 to the said proviso stipulates that for the purpose of sub-s-2 of s 10, default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two months notice by the landlord claiming the rent.

In Civil Appeals Nos. 1178 of 1984, 1992 of 1982, 2246 of 1982 and 1659 of 1982, the respondents-landlords issued notices to the appellants-tenants demanding the amount of rent in arrears and thereafter filed eviction petitions against the appellants-tenants, inter alia, on the ground of "wilful default". All the appellants-tenants complied with the notices issued by their respective landlords except the appellant-tenant in Civil Appeal No. 1659 of ]982 where he made part payment only. However in Civil Appeal 3668 of 1982 and 4012 of 1982 the respondents-landlords had filed eviction petitions against the appellants tenants without issuing such notices before filing of eviction petitions. In all the 644 appeals, the Madras High Court passed and/or confirmed, as the case may be, the orders of eviction holding that the ground of`willful' default mentioned in section 10(2)(i) had been proved against the tenants. Hence these appeals by special leave. The common question of law involved in these appeals was as to what is the interpretation of the term "wilful default" in the Explanation to the Proviso of sub- s.2 of s. 10 of the Tamil Nadu Act.

Counsel for the appellants-tenants contended (i) that despite the explanation it is open to the court on an appraisement of the circumstances of each case to determine whether or not the default]t was wilful and in doing so it cannot be guided wholly and solely by the Explanation which is merely clarificatory in nature and (ii) that mere non- payment of arrears of rent after issue of two months' notice cannot in all circumstances automatically amount to a wilful default if the non-payment does not fulfil the various ingredients of the term "wilful default". On the other hand it was argued by counsel for the respondents-landlords (i) that the very purpose of the Explanation is to bring about uniformity in court decisions by laying down a conclusive yardstick in the shape of the Explanation and once it is proved that after issue of two months' notice if the tenant does not pay the arrears within the stipulated period of two months, he is liable to be ejected straightaway.

On the question of interpretation of the terms`wilful default' appearing in the proviso to s.l0(2) of the Tamil Nadu Act coupled with the Explanation, the Court, ^ HELD: Per Fazal Ali and A. Varadarajan JJ.

(majority)

1. Though the Court is concerned mainly with the Tamil Nadu Act, yet in order to understand the contextual background of the words `wilful default' and its proper setting, it Will be useful to refer to those Acts which contain the term wilful default' either in a negative or in positive form. These Acts are (l) A P. Buildings (Lease, Rent and Eviction) Control Act of 1960, the Orissa House Rent Control Act 1967 and the Pondichery Buildings Lease and Rent Control Act 1969, (hereinafter referred to as the A.P.

Act, Orissa Act and Pondicherry Act respectively). Although the default contemplated by these Acts is wilful yet it has been put in a negative. Form which undoubtenly gives sufficient leeway to the tenant to get out of the rigors of the statutory provision the relevant provisions of these Acts relating to eviction of tenants on the ground of 'wilful default' in payment of rent contemplate that a default simpliciter would not be sufficient to evict the tenant but it must further be shown that the default was not wilful. These Acts are however, silent on the mode and the manner in which a court may decide as to what is wilful and what is wilful. Thus these Acts have left it to the courts to decide this question. So far as the Tamil Nadu Act is concerned, it makes a marked improvement by broadening the ambit of 'wilful default' in the proviso to s. 10(2) which is further clarified by an Explanation added to it subsequently. Before coming to any conclusion it may be necessary to examine the exact meaning of the words 'wilful default' as also the interpretation and the scope of the Proviso and the Explanation. [657H; 658A]

2. The words 'wilful default' would mean a deliberate and intentional default knowing fully well the legal consequences thereof. A consensus of the 645 meaning of the words `wilful default' appears to indicate that default in order to A be wilful must be intenional, deliberated and calculated and conscious, with full knowledge of legal consequences flowing therefrom. [660B;

661A-B] `A Dictionary of Low' by L.B. Co zon, page 361; Words and Phrases volume 11-A (Permanent Edition) page 268; Words and Phrases Vol. 45, pages 296. Webster's Third New International Dictionary Vol. III page 2617 and Volume I page 590 and Black's Law Dictionary(4th Edn.) page 1773 referred to.

3. The well established rule of interpretation of a proviso is that a proviso may have three e . rate functions.

Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted the in which but for the proviso would b. within the purview of the enactment. In other words, a proviso cannot be ton apart from the main enactment nor can it be use, to nullify or set at naught the real object of the main enactment. Whil interpreting a proviso sure be taken that it is used to remove special cases from the general enactment and provide for them separately In short, generally speaking a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself. To Sum up, a proviso may serve four different purposes:

1. qualifying or excepting certain provisions from the main enactment;

2. it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;

3. it may be embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and

4. it may be used merely to act as an optional addenda to the enactment with the sale object of explaining the real intendment of the statutory provision. [661D-E; 664C-D;

665H; 666A-C ] Craies in `Statute Law' (7th Edn.) Page 218, Odgers in 'Construction of Deeds and Statutes' (Fifth Edn.) 317, 318.

Sarathi in Interpretation of Statutes' page 294-2951. referred to.

Local Government Board v. South Stoneham Union [1909] A.C. 57. Ishverlal Thakorelal Almala v. Motiobhai Nagjibhai [1966] I SCR 367. Madras and Southern Maharatta Railway Co.

Ltd. v. Bezwada Municipality. AIR 1944 C71. West Derby v.

Metropolitan Life Assurance Co. [1897] AC 647. Rhodda Urban district Council v Taff Vale Railway Co. [1909] AC 253 and Jennings and Another v KellY [1940] AC 206 referred to.

Commissioner of Income Tax, Mysore, etc v. Indo Mercantile Bank Ltd. [1959] Z Supp. SCR 256, Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha [1962] 2 SCR 159 State of Rajasthan 646 v. Leela Jain [1965] I SCR 276, Sales Tax officer, Circle 1, Jabalpur v. Hanuman Prasad [1967] I SCR 831, commisioner of Commercial Taxes and Ors. v. R.S. Jhaver and Ors. [1968] I SCR 148, Dwarka Prasad v Dwarka Das Saraf [19761 1 SCC 128 and Hiralal Rattanlal etc. v. State of U.P. and Anr. etc. [19731 I SCC 216 relied upon.

4. The next question is as to what is the impact of the Explanation on the Proviso which deals with the question of wilful default It is now well settled that an explanation added to a statutory provision is not a substantive proviso,o in any sense of the term but as the plain meaning of the word itself shows, it is merely meant to explain or qualify certain ambiguities which may have crept in the statutory provision. From a conspectus of the authorities, it is manifest that the object of an Explanation to a statutory provision is- (a) to explain the meaning and intendment of the Act itself;

(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve, (c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful;

(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the court in interpreting the true purport and intendment of the enactment; and (e) it cannot, however, take away a statutory right with which any person , under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.

[666F-G ; 668G-H; 669A-C] Sarathi in Interpretation of Statutes, p. 329; Swarup in Legislation and Interpretation' pages 297-298 and Bindra in 'Interpretation of Statutes' (5th Edn.) page 67, referred to.

Burmah Shell Oil Storage and Distributing Co. Of India Ltd. and Anr. v. Commercial Tax Officer and Ors. [1961] I SCR 902, Bihta Cooperative Development Cane Marketing Uaion Ltd. and Anr. v. The Bank of Bihar and Ors. [1967] 1 SCR 848 and Dattatraya Govind Mahajan and Ors v. State of Mahararashtra and Anr [1977] 2 SCR 790 relied upon.

5(1). Although almost every State has its own Rent Act, neither the Explanation nor the statutory clause concerning the term 'wilful default' is mentioned therein.

These Acts seem to proceed only on the simple word default' and perhaps to buttress their intention they have laid down certain guidelines to indicate the grounds of ejectment wherever a default takes place. Looking generally at such Acts, they seem to have first provided statutorily a particular date or time when the tenant on being inducted under the contract of tenancy, is to pay the rent. Such a provision may or may not be against the contract of the tenancy 647 and if it is to that extent, it overrides the contract, This, therefore, gives sufficient notice to any tenant inducted in any premises that he must pay the lent according to the yardstick set out by the Act, failing which he runs the risk of being evicted for default. Some Acts, however, have provided a particular number of defaults to enable the Rent Controller or Court to find out whether such a default would entitle the landlord to get an order of eviction There are some other Acts which have made rather ingenious and, apt provisions for expediting the process of eviction in case of default by providing that whenever a suit for eviction is filed against a tenant on the ground of default, the tenant in order to show his bona fides must first deposit the entire rent, arrears and cost in the court of the Rent Controller where the action is field on the very first date of hearing, failing which the court or the authority concerned would be fully justified in striking down the defence and passing an order of eviction then and there. The dominant object of such a procedure is to put the tenants on their guard. It is true that such provisions are rather harsh but if a tenant goes on defaulting then there can be no other remedy but to make him pay the rent punctually unless some drastic step is taken. These Acts, therefore, strike a just balance between the rights of a landlord and those of a tenant. For deciding the present cases, it is not necessary to go either into the ethics or philosophy of such a provision because the Court is concerned with statutes having different kinds of provisions. The relevant provisions of the A.P., Orissa and Pondichery Acts are almost in pari materia the proviso to Section 10(2) of the Tamil Nadu Act. The only difference between the Tamil Nadu Act and the other Acts is that whereas an Explanation is added to the proviso to s.l0(2) of the Tamil Nadu Act, no such Explanation has been added to the provisions of the other three Acts. Hence the Court has to consider the combined effect of the proviso taken in conjunction with the Explanation. From an analysis of the various concomitants of the Explanation, the position seems to be that- (a) there should be a default to pay or tender lent; E (b) the default should continue even after the landlord has issued two months' notice claiming the arrears of rent; and (c) if, despite notice, the arrears are not paid the tenant is said to have committed a wilful default and consequently liable to be evicted forthwith.

[669E H; 670A-D, F-G] F 5 (ii) The Explanation, does not at all take away the mandatory duty cast on the Controller in the Proviso to decide if a default is wilful or not. Indeed if the landlord chooses to give two months notice to his tenant and he does not pay the rent, then, in the absence of substantial and compelling reasons, the Controller or the court can certainly presume that the default is wilful and order his eviction straightaway. There is no force in the view that whether two months notice for payment of rent is given or not, it will always be open to the Controller under the Proviso to determine the question of 'wilful default' because that would render the very object of explanation otiose and nugatory. [673D-E]

6. Two factors mentioned in s.10(2)(i) seem to give a clear notice to a tenant as to the mode of payment as also the last date by which he is legally supposed to pay the rent. This, however, does not put the matter beyond controversy because before passing an order of eviction under the proviso, it must also be 648 proved that the default was wilful and if the Controller is of the opinion that the default in the circumstances and facts of the case was not wilful, in the sense that it did not contain any of the qualities or attributes of a wilful default as indicated, he may give the tenant a reasonable time, not exceeding 15 days, to pay the entire rent and if this is complied with, the application for ejectment would stand rejected. The difficulty, however . is created by the Explanation which says that once a landlord gives a Iwo months' notice to his tenant for paying the arrears of rent but the tenant continues in default even thereafter, then he is liable to be evicted. There is a good deal of force in this argument which has its own advantages. In the first place, it protects the court from going into the intricate question as to what is a wilful default and whether or not the conditions of a wilful default have been satisfied which, if permitted would differ from case to case and court to court. But the difficulty is that if such a blanket ban is put on the court for not examining the question of wilful default once the conditions laid down in the Explanation are satisfied then it would undoubtedly lead to serious injustice to the tenant. A subsidiary consequence of such an interpretation would be that even though the tenant, after receipt of the notice, may be wanting to pay the arrears of rent but is unable to do so because of unforeseen circumstances like, death, accident, robbery, etc. which prevent him from paying the arrears, yet under the Explanation he has lo be evicted. Another difficulty in accepting the first view, viz., if two month's notice is not given, the tenant must not be presumed to be a wilful defaulter, is that in such a case each landlord would has to maintain a separate office so that after every default a two months' notice should be given and if no notice is given no action can be taken against a tenant. The correct view in the matter is in the following terms.

(i) Where no notice is given by the landlord in terms of the Explanation, the Controller. having regard to the four conditions spelt out in this judgment has the undoubted discretion to examine the question as to whether or not the default committed by the tenant is wilful, If he feels that any of the conditions mentioned is lacking or that the default was due to some unforeseen .circumstances, he may give the tenant a chance of locus paenitentiae by giving a reasonable time, which the statute puts at 15 days, and if within that time the tenant pays the rent, the application for ejectment would have to be rejected.

(ii) If the landlord chooses to give two months' notice to the tenant to clear up the dues and the tenant does not pay the dues within the stipulated time of the notice then the Controller would have no discretion to decide the question of wilful default because such a conduct of the tenant would itself be presumed to be wilful default unless he shows that he was prevented by sufficient cause or circumstances beyond his control in honouring the notice sent by the landlord.

[671G-H; 672A-D; F; 673F-H; 674A-B] N. Ramaswami Reddiar v. S.N. Periamuthu Nadar, 1980 Law Weekly (vol. 93) p. 577 and Khivaraj Chordia v. C. Maniklal Bhattad AIR 1966 Madras 67 approved.

Rajeswari v. Vasumal Lalchand AIR 1983 Madras 97, referred to.

7. In the light of the above principles and tests to be applied by courts in deciding the question of wilful default, the Court allowed Civil Appeals Nos. 1178 of 1984, 1992 of 1982 and 2246 of 1982 and dismissed rest of the appeals. [678B] 649 Per Mukharji.j. (dissenting) A l(i) Default has been construed in various ways depending upon the context. ' Default' would seem to embrace every failure to perform part of one's contract or bargain.

It is a purely relative term like negligence. It means nothing more, nothing less. than not doing what is reasonable under the circumstances not doing something which you ought to do. having regard to the transaction.

Similarly, default in payment imports something wrongful, the omission to do some act which, as between the parties, ought to have been done by one of them. It simply means non- payment, failure or omission to pay. Default happens in payment of rents under various contingencies and situations.

Whether the default is wilful or not is also a question of fact to be proved from evidence, direct and circumstantial drawing inferences from certain conduct. If the Courts are free to decide from varying circumstances whether default was wilful or not, then divergence of conclusions are likely to arise one judicial authority coming to the conclusion from certain circumstances that the default was wilful, another judicial authority coming to a contrary conclusion from more or less same circumstances. That creates anomalies. In order to obviate such anomalies and bring about a uniform standard that Explanation explains the expression, wilful" and according to the Explanation added, a default to pay or tender rent small be construed", as wilful if the default by the tenant n the payment of rent continues after issue of two months' notice by the landlord claiming the rent. If that is the position, in a case where the landlord his given notice to the tenant claiming the rent and the tenant has not paid the same for two months, then the same must be construed as wilful default, whatever may be the cause for non-payment. Whether in a particular case default is wilful or not, must be considered in accordance with the definition provided in the Explanation to Proviso to sub-section (2) of section 10 of the Act. If it was intended that the courts would be free to judge whether in a particular set up of facts, the default was wilful or not where no notice has been given, then in such a case there was no necessity of adding this Explanation to the Proviso which-is a step to the making of the findings under clause (l) of sub-section (2) of section 10 of the Tamil Nadu Act. It is well-settled that Legislature does not act without purpose or in futility.

[680E-G; 681B-E; 682E-F] _ ._ Stroud's Judicial Dictionary Vol. 1. Third Edition. page 757, Prem's Judicial Dictionary. Vol. 1 196 t page 483. The Dictionary of English Law page 597 Fakir Chander Datt and Other v. Ram Kumar Chatterji Indian Appeals. Vol XXXI. p. l9 n referred to, I(ii) If a definition is provided of an expression, then the courts are not free to construe the expression otherwise unless it is so warranted by the use of the expression such as "except otherwise provided or except if the context otherwise indicates." There is no such expression in the instant case. There may be in certain circumstances intrinsic evidence indicating otherwise. Here there is none. [682C-D] 2(i) The expression "shall be construed" would have the effect of providing a definition of wilful default in the proviso to sub-section (2) of section 10. According to the explanation, a default to pay or tender rent "shall be construed", 650 as wilful if the default by the tenant in the payment of rent continues after issue of two months' notice by the landlord claiming the rent. If that is the position, in a case where the landlord has given notice to the tenant claiming the rent and the tenant has not paid the same for two month's, then the same must be construed as wilful default, whatever may be the cause for non-payment. The Legislature has chosen to use the expression "shall be construed as wilful" if after a notice by the landlord for two months' failure to pay or tender rent on the part of the tenant continues, and if it is wilful then under sub- section(2) clause (1) read with the proviso as explained by the Explanation, the Controller must be satisfied and give an order for eviction. The Legislature has provided an absolute and clear definition of 'wilful default' Other circumstances cannot be considered as wilful default. It is true that Legislature has not chosen to use language to indicate that in no other cases, the default could be considered to be wilful except one default case which has been indicated in the Explanation. But it is not so necessary be cause Legislature has defined 'wilful default by the expression that default to pay or tender rent shall be construed' meaning thereby that it will mean only this and no other. Therefore, a default will be construed as wilful, only where the landlord has given notice and two months have expired without payment of such rent.

[682 B-R-C; H; 681 D-F; 683A] 2(ii)Statutory provisions must be construed, if it is possible, that absuridity and mischief may be avoided. Where the plain and literal interpretation of a statutory provision produces a manifestly absurd and unjust result, the court might modify the language used by the Legislature or even ('o some violence to it so as to achieve the obvious intention Or the Legislature and produce rational construction and just results. Ironing out the creases is possible but not rewriting the language to serve a notion of public Policy held by the judges [683C: 684B] 2(iii) Where two constructions are possible, one which avoids anomalies and creates reasonable results should be preferred but where the language is clear and where there is a purpose that can be understood and appreciated for construing in one particular manner, that is to say, avoidance of divergence of judicial opinions in construing wilful default and thereby avoiding anomalies for different tenants, it would not be proper in such a situation to say that this definition of wilful default was only illustrative and not exhaustive. The Proviso to sub-section (2) of section 10 cannot be cons trued as illustrative when the Legislature has chosen to use the expression "shall be construed". [683D-F] In the aforesaid view of the matter, the individual appeals are disposed of accordingly. that is to say. Only those appeals of tenants are dismissed where eviction orders were passed after two months' notice had been given and there was continuance of default, and the rest of the appeals are allowed. 1685B-C] Seaford Court Estates Ltd. v. Asher [1949] 2 All E.R.

155 at pages 164 (CA), Regina v. Barnet London Borough Council Ex parte Nilish Saah, 1983 (2) Weakly Law Reports p.

16 at p. 30., Carrington and others v. Therm-a-Stor Ltd.

1983 (1) Weakly Law Reports p. 138 at p. 142. referred to.

651

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1178 of 1984 From the Judgment and Order dated the 15th July, 1982 of the High Court of Madras in Civil Revision Petition No. 3396 of 1981.

AND Civil Appeal No. 6211 of 1983 From the Judgment and Order dated the 5th November, 1982 of the High Court of Andhra Pradesh in Civil Revision Petition No. 2477 of 1982.

WITH Civil Appeal No. 1992 of 1982 From the Judgment and Order dated the 17th December, 1981 of the High Court of Madras in Civil Revision Petition No. 152 of 1981 .

WITH Civil Appeal No. 1959 of 19X2 From the Judgment and Order dated the 14th December, 1981 of the High Court of Madras in Civil Revision Petition No. 1630 of 1980.

WITH Civil Appeal No. 3668 of 1982 From the Judgment and Order dated the 20th October, 1982 of the High Court of Madras in Civil Revision Petition No. 4087 of 1982.

WITH Civil Appeal No. 2246 of 1982 From the Judgment and Order dated the 5th November, 1981 of the High Court ot Madras in Civil Revision Petition No. 1397 of 198(' AND Civil Appeal No. 4012 of 1982 From the Judgment and Order dated the 23rd November, 1982 of the High Court of Madras in Civil Revision Petition No. 3983 of 1981 Y. S., Chitale and P. N. Ramalingam for the Appellant in Civil Appeal No. 1178 of 1984.

652 P.G. K. K Mani, V. shekher and P.R. Setharaman for the Respondents in Civil Appeal No. 1178 of 1984 A.K. Sen and A.T.M. Sampath for the Appellant in Civil Appeal No. 6211 of 1983.

T.V.S. Narasimhachari for the Respondent K Ramkumar for the Appellant in Civil Appeal No. 1992 of A. T. M. Sampath for the Respondent.

A. S. Nambiar for the Appellant in Civil Appeal No.

1659 of 1982.

K S. Ramamurthy, and A.T.M. Sampath, for the Appellant- in Civil Appeal No. 3668 of 1982.

C. S. Vaidianathan and K. K Mani for the Respondents.

M. G. Ramachandran, and A.V. Rangam for the Appellant in Civil Appeal No. 2246 of 1982.

T. S. Krishnamurthy Iyer for the Respondent.

T. S. Krishnamurth Iyer. and S. Balakrishna for the Appellant in Civil Appeal No. 4012 of 1984.

Padmanbhan and D.N. Gupta for the Respondent in Civil Appeal No. 4012 of 1982.

The following Judgments were delivered FAZAL ALI, J. These appeals invlove more or less an identical point of law relating to the interpretation of the term 'wilful default' appearing in the proviso to section 10 (2) of the Tamil Nadu Buil dings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the 'Act') coupled with the Explanation which seeks to explain the intent Or the proviso. We have heard counsel for the parties at great length and a large number of authorities have been cited before us in support of both the parties.

Before we take up the points of law involved in these appeals we would briefly narrate the bare facts of each of these cases in order to test the correctness of the points argued before us.

653 In Civil Appeal No. 1178 of 1984, the respondent- landlord let A out the suit premises No. 3-B, New No 2-B, Davidson Street, Broadway Madras, to the appellant-tenant on a monthly rent of Rs. 600 for non-residential use. The appellant, despite repeated reminders, did not pay the rent for the period from October 1978 to August 1979. The respondent filed a suit on 2 12.79 for evicting the appellant on two grounds wilful default in payment of rent, and (2) material acts of waste committed in the building.

It may be mentioned here that before filing a suit for eviction of the appellant, the respondent on 17.9.79 sent a two months` notice to the appellant. through his Advocate to clear up the dues. The appellant on receipt of the notice paid up the amount of the arrears, amounting to Rs. 6,600 on 3.10.79, i.e., within the stipulated period of two months.

But, the respondent contended that in view of the past conduct of theappellant he was guilty of wilful default within the meaning of proviso to s. 10 (2) of the Act.

So far as this appeal is concerned, as the entire rent had been paid up in pursuance of the notice dated 17.9.79 even prior to the filing of the suit, it is manifest that on the date of filing of the suit no cause of action in presenti having arisen, the suit should have been dismissed on this short ground alone as being not maintainable. As indicated above, it was not open to the landlord after having received the entire amount of arrears before filing of the suit to have filed a suit for past conduct of the tenant. This appeal, therefore, merits dismissal on this ground alone.

In Civil Appeal No. 6211 of 1983, the respondent- tenants were given the suit premises No. 171582, Ward B, Old corresponding No. 2, New No. 5181582 Abid Road, Hyderabad, on a monthly rent of Rs. 225 which was, by mutual consent, increased to Rs. 275 per month in the year 1964. From 1.7.66, the rent was again agreed to be increased to Rs. 300 per month. The appellants-landlord filed a suit under s. 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Act, 1960 on 12.11.71, against the respondents for eviction on three grounds; (1) wilful default by the tenants in payment of rent for the months of September, October and November 1971 (total amount being Rs. 900, (2) the tenants sublet the premises to one Hanumantha, and (3) that the premises were required bona fide for their own use. However, during toe pendency of the matter, the original landlords sold away their interest in the property in favour of the present appellants before us and, therefore, the question of bona fied requirement abated there itself.

654 The Rent Controller upheld both the grounds of wilful default and subletting. Aggrieved by the said decision, the respondents-tenant filed an appeal to the Chief Judge, City Small Causes Court, Hyderabad and the learned Chief Judge by his judgment held that wilful default in payment of rent for the month of September 1971 as also the question of sub letting was proved. Against this decision of the Chief Judge, City Small Causes, the respondents filed a revision petition in the High Court. It is not in dispute that the rent from September, 1971 on wards has not been paid and that by the time the eviction petition was filed, the default was only for the month of September 1971. The High Court agreed with the lower courts with regard to wilful default for the month of September, 1971 and reversed the finding with regard to subletting but on the ground of wilful default ordered eviction of the respondents.

In civil Appeal No. 1992 of 1982, the respondent- landlord filed an eviction petition against the appellant- tenant on the grounds of wilful default and the premises needing repairs. However, the second ground was not pressed and the only point which survived for deter mination was whether there was any wilful default on the part of the appellant. The brief facts are that the appellant became a tenant under the father of the respondent in 1953 at a monthly rent of Rs. 15 which was subsequently mutually agreed to be increased to Rs. 49 per month. The respondent contended in his petition that the appellant became a defaulter in payment of the rent as he did not pay the rent for the months of June 1977 to January 1978. The respondent also issued a notice on 16.1.78 demanding the dues amounting to Rs. 392. The appellant sent a detailed reply on 30.1.78 along with a Bank Draft for Rs. 392 which was, however, not encashed by the respondent and returned to the appellant subsequent to the filing of an eviction petition which was filed on 11.8.1978.

The Rent Controller found the tenant to be a wilful defaulter and consequently order his eviction. However, on appeal the Appellate Authority reversed the finding of the Rent Controller and accepted the plea of the tenant that as he was ill he was not able to pay the rent. In revision, the High Court did not agree with the finding of the Appellate Authority and restored the finding of the Rent Con troller and ordered the eviction of the appellant, holding that the explanation offered by the tenant could not be accepted as his sons were carrying on the business in the same premises and nothing pre vented them from paying the rent to the landlord of the appellant was ill.

655 In Civil Appeal No. 1659 of 1982, the respondent- landlord filed an eviction petition against the appellant- tenant in respect of a nonresidential premises on two grounds: (1) wilful default in payment of rent from 1.5.77 to 31,8.77, and (2) bona fide requirement for personal use.

The Rent Controller, after an equiry, ordered eviction of the tenant on both the grounds and the Appellate Authority confirmed the findings of the Rent Controller. The landlord issued a lawyer's notice on 1.9.77 to the tenant to clear up the dues. After receipt of the notice the tenant paid the rent of two months' only and for the remaining two months the tenant could not offer any satisfactory explanation and, therefore, the High Court in revision agreed with the findings of both the courts below in regard to wilful default of payment of arrears of rent and ordered eviction of the tenant on this ground alone. The High Court, however, did not agree with the findings of the courts below with regard to bona fide requirement of the landlord and held that the landlord could not ask for a non-residential portion for residential purposes having leased it out for a non-residential purpose.

In Civil Appeal No. 3668 of 1982, the appellant took out the premises from the respondent for non-residential use on a monthly rent of Rs. 350. There was some misunderstanding between the parties over payment of rent and as a result of which it was agreed that the tenant would deposit the rent in the Bank. The respondent landlord filed an eviction petition on 1.4.1980 in the court of the Rent Controller, after verifying from the Bank, that the tenant had not deposited the rent for the months of January and February 1980, thereby committing a wilful default. The authorities below found against the arrangement of depositing the rent in the Bank and ordered the eviction of the appellant on the ground of wilful default. The High Court upheld the decision of the courts below and held that the appellant had wilfully defaulted in the payment of rent and ordered the eviction of the appellant.

In Civil Appeal No. 2246 of 1982, the respondent- landladies let out the premises to the tenant-appellant for non-residential use on a monthly rent of Rs. 105. The respondents filed an eviction petition on 2.11.76 against the tenant on the ground of wilful default for non-payment of rent for the period from January 1976 to September 1976, i.e., for a period of 9 months. But before filing the eviction petition, the respondents on 6.7,1976 issued a notice to the tenant to pay the dues and on 17.7.76 the appellant paid a sum of Rs. 630 which was accepted by the landladies without prejudice. The Rent 656 Controller found that the default in payment of rent was not wilful and therefore dismissed the application of the landladies. On appeal, the Appellate Authority reversed the finding of the Rent Controller and held that the default, was wilful. In revision, the High Court did not agree with the contention of the appellant that he was not wilful defaulter as immediately after filing of the eviction petition he had paid the entire arrears even before the serving of summons The High Court held that there was no satisfactory explanation by the tenant for nonpayment of rent for the period from January to June 1976 before the issue of notice Even after the payment of rent the tenant committed further default till the petition for eviction was filed on 2.11.76. The high Court, therefore, upheld the finding of the Appellate Authority and ordered eviction of the tenant on the ground of wilful default.

In civil appeal No. 4012 of ' 1982, the appellant is in occupation of the residential premises bearing No 17 (New No 59), Burkit Road T. Nagar, Madras on a monthly rent of Rs. 325 payable according to English calendar month. The respondent filled an eviction petition against the appellant on the ground of wilful default and bona fide requirement for her own occupation. It was stated on behalf of the respondent-landlady that the appellant committed wilful default in payment of rent from June 1976 onwards and after repeated demands a sum of Rs. 1000 was paid by him on 1.4.1977. He had paid rent for five months to the Income Tax Department on behalf of the respondent but he did not produce any receipt evidencing payment to the Income Tax Department. Assuming that the appellant had made the said payment, the respondent further contended that from February 1977 to July 1978 the appellant was in arrears, thereby committing a wilful default. The Rent Controller did not agree with the contentions of the respondent and held that the default was not wilful and the requirement for own Occupation of the landlay was not bona fide. On appeal, the Appellate Court came to the conclusion that the tenant had committed wilful default in payment of rent from May 1976 onwards as on 1.4.77 and from December 1976 as on 10.4.77.

However, the appellate authority was of the view that the respondent had not been able to prove her case for bona fide requirement. But, on the around of wilful default, the eviction of the appellant was ordered. In reviston, the High Court agreed with the findings of the Appellate Court and confirmed the eviction of the appellant on the ground of wilful default.

From a detailed survey of the provisions of the various Rent Acts prevailing in the States and various Union Territories of our 657 country, it appears that the provisions regarding eviction for default A in payment of rent are not uniform and differ from State to State. Some Acts do not mention `wilful default' at all, some mention it in a negative form while some put it in an affirmative form. To cut the matter short, from a review of the various Rent Acts the position that emerges is that the provisions relating to eviction are couched in three different types of default- (1) Acts which expressly mention 'wilful default' without defining the same, (2) Acts which do not mention the words 'wilful default' at all but confer a right on the landlord to evict the tenant on pure and simple default after a certain period of time when the rent has become due, which is also different in different States, (3) Acts which use the expression 'wilful default' but in a negative form rather than in an affirmative form. D These are the A.P. Buildings (Lea5e, Rent and Eviction) Control Act of 1960, The Orissa House Rent Control Act, 1967 and the Pondicherry Buildings (Lease & Rent Control) Act, 1969 (hereinafter referred to as the 'A P.

Act, 'Orissa Act' and 'Pondicherry Act' respectively) The last category of the Acts is the Tamil Nadu Act, which is the Statute in question and which makes a marked improvement by broadening the ambit of 'wilful default' in the proviso to s. 10 (2) which is further clarified by virtue of the Explanation added to the said proviso by Act No 23 of 1973.

There are other Rent Acts which not only use the expression 'wilful default' but which also give a sort OF a facility to a tenant even for an ordinary default to pay the entire rent together with interest, on payment of which the suit for eviction is dismissed or, at any rate, they contain provisions by which even if a suit for eviction is filed, the tenant is required to pay the entire arrears of rent, costs and interest, failing which his defence is struck out and the suit for eviction is decreed automatically.

In these circumstances, for the purpose of the present cases, it is not necessary for us to make a roving enquiry into or carry on a detailed survey of the Acts which do not use the term 'wilful default'. We might usefully refer only to those Acts which contain the term 'wilful default' either in a negative or in a positive form. These Acts, as already indicated, are the A.P., Orissa, Pondicherry and the Tamil Nadu Acts. Though we are concerned mainly with the Tamil Nadu 658 Act yet in order to understand the contextual background of the words 'wilful default' and its proper setting, we might briefly examine the relevant provisions of the aforesaid Acts. Section 10 (2) of the A.P. Act is the only provision which confers protection to the tenant from eviction under certain conditions. Proviso to that sub-section runs thus:

"Provided that in any case falling under clause (i), if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may notwithstanding anything in section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application shall be rejected." It may be noticed that although the default contemplated by the Act is wilful yet it has been put in a negative form which undoubtedly gives sufficient leeway to the tenant to get out of the rigours of the statutory provision. The proviso to s.7 (2J of the Orissa Act is similarly worded and the relevant portion of which runs thus:

"Provided that in any case falling under clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful." Pondicherry Act is another statute which also contains the word 'wilful' in a negative form, the relevant portion of which runs thus:

"Provided that in any case falling under clause (i) if the Controller is satisfied that the tenant's default to pay of tender rent was not wilful..." The aforesaid Acts undoubtedly contemplate that a default simpliciter would not be sufficient to evict the tenant but it must further be shown that the default was not wilful. The Act, however is silent on the mode and the manner in which a court may decide as to what is wilful and what is not wilful. Thus, the Act has left it to the courts to decide this question. So far as the Tamil Nadu Act is concerned, it clearly defines as to what is 'wilful default'. Proviso to s. 10 (2) of the Act runs thus:

"Provided that in any case falling under clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may, notwithstanding anything 659 contained in section 11, give the tenant a reasonable time, t not exceeding fifteen days, to pay or tender the rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application shall be rejected." This proviso was clarified by an Explanation added to it by Act No. 23 of 1973 which provides a clear criterion to determine as to what is wilful default and what is not. in this connection, it was submitted by counsel for the tenants that despite the Explanation it is open to the Court on an appraisement of the circumstances of each case to determine whether or not the default was wilful and in doing, so it cannot be guided wholly and solely by the Explanation which is merely clarificatory in nature. If the Court in the circumstances of each case finds that the default is not wilful then it can come to this finding despite the Explanation. On the other hand, the argument ot the counsel for the landlords is that the very purpose of the Explanation is to briny about uniformity in court decisions by laying down a conclusive yardstick in the shape of the Explanation which says that a default would be wilful only if the landlord gives two months' notice to the tenant and the tenant does not pay the rent after the expiry of this period. In other words, the argument seems to be that the Explanation is to be read into the proviso so that the word 'wilful' will have to be defined and interpreted in accordance with the criterion laid down by the said Explanation, i.e., 'issue of two months' notice.' The arguments merits consideration but before coming to any conclusion it may be necessary for us to examine the exact meaning of the words 'Wilful default' as also the interpretation and the scope of the Proviso and the Explanation. Prima facie, there seems to be some force in the argument of the counsel for the tenants that unless the conditions of the Explanation are fulfilled, whatever may be the nature of the default, it cannot be a 'wilful default' as contemplated by the Proviso.

Before, however, going into this question further, let us find out the real meaning and content of the word 'wilful' or the words 'wilful default'. In the book 'A Dictionary of Law' by L.B. Curzon, at page 361 the words 'wilful' and 'wilful default' have been defined thus:

'Wilful'-deliberate conduct of .l person who is a free agent, knows what he is doing and intends to do what he is doing.

660 'Wilful default'-Either a consciousness of negligence or breach of duty; or a recklessness in the performance of a duty. In other words, 'wilful default' would mean a deliberate and intentional default knowing full well the legal consequences thereof.

In Words and Phrases', Volume 11 A (Permanent Edition) at page 268 the word 'default' has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In volume 45 of 'Words & Phrases', the word 'wilful' has been very clearly defined thus:

'Wilful'-intentional; not incidental or involuntary: - - done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently:

- in common parlance word 'wilful' is used in sense of intentional, as distinguished from accidental or involuntary.

P. 296 - "Wilful" refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary.

In Volume III of Webster's Third New International Dictionary at page 2617, the word 'wilful' has been defined thus:

"governed by will without yielding to reason or with out regard to reason; obstinately or perversely self-willed." The word 'default' has been defined in Vol. I of Webster's Third New International Dictionary at page 590 thus;

"to fail to fulfil a contract or agreement, to accept a responsibility; to fail to meet a financial obligation." In Black's Law Dictionary (4th Edn.) at page 1773 the word 'wilful' has been defined thus:

"Wilfulness" implies an act done intentionally and designedly; a conscious failure to observe care;

Conscious; knowing; done with stubborn purpose, but not with malice.

The word "reckless" as applied to negligence, is the legal equivalent of "willful" or "Wanton".

661 Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.

The next question that arises for consideration is as to what is the scope of a proviso and what is the ambit of an Explanation either to a proviso or to any other statutory provision. We shall first take up the question of the nature, scope and extent of a proviso. The well established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment.

Craies in his book 'Statute Law' (7th Edn.) while explaining the purpose and import of a proviso states at page 218 thus:

"The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it...The natural presumption is that, but for the proviso, the enacting part of the section would have included the subject- matter of the proviso." Odgers in 'Construction of Deeds and Statutes' (Fifth Edn.) while referring to the scope of a proviso mentioned the following ingredients:

P. 317 "Provisos-These are clauses of exception or qualification in an Act, excepting something out of, or qualifying something in, the enactment which, but for the proviso, would be within it." P. 318 "Though framed as a proviso, such a clause may exceptionally have the effect of a substantive enactment. " 662 Sarathi in 'Interpretation of Statutes' at pages 294- 295 has collected the following principles in regard to a proviso:- (a) When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso.

(b) A proviso must be construed with reference to the preceding parts of the clause to which it is appended.

(c) Where the proviso is directly repugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso speaks the later intention of the makers.

(d) Where the section is doubtful, a proviso may be used as a guide to its interpretation; but when it is clear, a proviso cannot imply the existence of words of which there is no trace in the section.

(e) The proviso is subordinate to the main section.

(f) A proviso does not enlarge an enactment except for compelling reasons.

(g) Sometimes an unnecessary proviso is inserted by way of abundant caution.

(h) A construction placed upon a proviso which brings it into general harmony with the terms of section should prevail.

(i) When a proviso is repugnant to the enacting part, the proviso will not prevail over the absolute terms of a later Act directed to be read as supplemental to the earlier one.

(j) A proviso may sometimes contain a substantive provision." In the case of Local Government Board v. South Stoneham Union,(') Lord Macnaghten made the following observation:

"I think the proviso is a qualification of the preceding enactment, which is expressed in terms too general to be quite accurate." In Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai(2) it was held that the main object of a proviso is merely to qualify the main enactment. In Madras & Southern Maharatta Railway Co. Ltd. v. Bezwada Municipality,(3) Lord Macmillan observed thus:

(1) [1909] A C. 57.

(2) [1966] 1 SCR 367.

(3) ATR 1944 P.C. 71.

663 "The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case." The above case was approved by this Court in Commissioner Of Income Tax, Mysore, etc. v. Indo Mercantile Bank Ltd.,(l) where Kapur, J. held that the proper function of a proviso was merely to qualify the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment a portion which, but for the proviso, would fall within the main enactment. In Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subhash Chandra Yograj Sinha,(2) Hidayatullah, J, as he then was, very aptly and succinctly indicated the parametres of a proviso thus:

"As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule." In West Derby v. Metropolitan Life Assurance Co.(3) while guarding against the danger of interpretation of a proviso, Lord Watson observed thus:

"a very dangerous and certainly unusual course to import legislation from a proviso wholesale into the body of the statute." A very apt description and extent of a provio was given by Lord Oreburn in Rhodda Urban District Council v. Taff Vale Railway Co.(q) where it was pointed out that insertion of a proviso by the draftsman is not always strictly adhered to its legitimate use and at times a section worded as a proviso may wholly or partly be in substance a fresh enactment adding to and not merely excepting something out of or qualifying what goes before. To the same effect is a later decision of the same Court in Jennings add Another v.

Kelly(5) where it was observed:

"We must now come to the proviso, for there is, I think, no doubt that in the construction of the section the (1) [1959] 2 supp. SCR 256.

(2) [1962] 2 SCR 159.

(3) [1897] AC 647.

(4) [l909] AC 253.

(5) [1940] AC 206.

664 whole of it must be read and a consistent meaning if possible given to every part of it The words are "provided that such licence shall be granted only for premises situate in the ward or district electoral division in which such increase in population has taken place". There seems to be no doubt that the words "such increase in population" refer to the increase of not less than 25 per cent of the population mentioned in the opening words of the section " While interpreting a proviso care must be taken that it is used to remove special cases from the general enactment and provide for them separately.

In short, generally speaking, a proviso is intended to limit the enacted provision so as to except something which would have other wise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself.

Apart from the authorities referred to above, this Court has in a long course of decisions explained and adumbrated the various shades; aspects and elements of a proviso. In State of Rajasthan v. Leela Jain,(') the following observations were made:

"So far as a general principle of construction of a proviso is concerned, it has been broadly stated that the function of a proviso is to limit the main part of the section and carve out something which but for the proviso would have been within the operative part." In the case of Sales Tax Officer, Circle 1, Jabalpur v.

Hanuman Prasad(2), Bhargava, J. Observed thus:

"It is well-recognised that a proviso is added to a principle clause primarily with the object of taking out of the scope of that principal clause what is included in it and what the legislature desires should be excluded." In Commissioner of Commercial Taxes and Ors. v.

R.S. Jhaver and Ors.,(3) this Court made the following observations:

(1) [1965]1 S C.R. 276.

(2) [1967] I S.C.R. 831.

(3) [1968]1 S.C.R. 148.

665 "Generally speaking, it is true that the proviso is an exception to the main part of the section; but it is recognised that in exceptional cases a proviso may be a substantive provision itself " In Dwarka Prasad v. Dwarka Das Saraf,(l) Krishan Iyer, J. speaking for the Court observed thus: B "There is some validity in submission but if, on a fair construction, the principal provision is clear, a proviso can not expand or limit it. Sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain, to light up ambiguous edges. Here, such is the case If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction.

In Hiralal Rattanlal etc. v. Staie of U.P. and Anr.(2) etc. this Court made the following observations:

"Ordinarily, a proviso to a section is intended to take out a part of the main section for special treatment. It is not expected to enlarge the scope of the main section. But cases have arisen in which this Court has held that despite the fact that a provision is called proviso, it is really a separate provision and the so-called proviso has substantially altered the main section." We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes:

(1) [1976]1 S.C.R. 128.

(2) [1973] 1 S.C.C.216.

666 (1) qualifying or excepting certain provisions from the main enactment;

(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;

(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.

These seem to be by and large the main purport and parameters of a proviso.

So far as the Act in question is concerned, the matter does not rest only on the question of wilful default, but by an amendment (Act No. 23 of 1973) an Explanation, in the following terms, was added to the proviso to section 10 (2) of the Act:

"Explanation-For the purpose of this sub-section, default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two months' notice by the landlord claiming the rent." We have now to consider as to what is the impact of the Explanation on the proviso which deals with the question of wilful default. Before, however, we embark on an enquiry into this difficult and delicate question, we must appreciate the intent, purpose and legal effect of an Explanation. It is now well settled that an Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision. Sarathi in 'Interpretation of Statutes' while dwelling on the various aspects of an Explanation observes as follows:

"(a) The object of an explanation is to understand the Act in the light of the explanation.

667 (b) It does not ordinarily enlarge the scope of the original A section which it explains, but only makes the meaning clear beyond dispute." (P. 329) Swarup in 'Legislation and Interpretation' very aptly sums up the scope and effect of an Explanation thus:

"Sometimes an explanation is appended to stress upon a particular thing which ordinarily would not appear clearly from the provisions of the section. The proper function of an explanation is to make plain or elucidate what is enacted in the substantive provision and not to add or substract from it. Thus an explanation does not either restrict or extend the enacting part; it does not enlarge or narrow down the scope of the original section that it is supposed to explain .. The Explanation must be interpreted according to its own tenor; that it is meant to explain and not vice versa." (P.P. 297-298.) Bindra in 'Interpretation of Statutes' (5th Edn.) at page 67 states thus:

"An explanation does not enlarge the scope of the original section that it is supposed to explain. It is axiomatic that an explanation only explains and does not expand or add to the scope of the original section.. The purpose of an explanation is, however, not to limit the scope o the main provision.. The construction of the explanation must depend upon its terms, and no theory of its purpose can be entertained unless it is to be inferred from the language used. An 'explanation' must be interpreted according to its own tenor ." The principles laid down by the aforesaid authors are fully supported by various authorities of this Court. To quote only a few, in Burmah Shell Oil Storage and Distr