TaxTMI 
TaxTMI 
2008 (2) TMI 869
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....allenged by way of appeal by the appellants. During the pendency of the appeal, an application to amend the written statement was allowed by the Appellate Court. Thereafter certain additional issues were framed. The Appellate Court was of the view since the written statement had been amended during the pendency of the appeal, the matter should be remanded to the trial court for fresh decision. Challenging the order passed, an appeal was filed by respondent no.1 before the High Court. Stand of the plaintiff no.1 before the High Court was that the Appellate Court committed an illegality in remanding the matter for fresh consideration. It was submitted that the Appellate Court could have exercised its discretion under Order XLI Rule 25 of the Code of Civil Procedure, 1908 (in short 'the Code') and it could have recorded evidence itself. It was the opinion that the same was necessary for disposal of the appeal. 4. Stand of the defendants on the contrary was that two courses were available to the Appellate Court. First was to pass the remand order after setting aside the findings. The said course has been adopted. The other course was to call for findings on the issue by remitt....
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....sed. The First Appellate Court is the last Court of facts. 9 Under Order XLI Rule 25, if it appears to the Appellate Court that any fact essential for the decision in the suit was to be determined, it could frame an issue on the point and refer the same for trial, to the Court from whose decree the appeal is preferred and in such case, shall direct such court to take additional evidence required. The order of remand should not be passed as a matter of routine. The First Appellate Court which has the power to analyse the factual position can decide the issue and the additional issues. In the instant case the First Appellate Court, inter alia, observed as follows: "As such, it would not be proper for the first Appellate Court in such matter to itself record the evidence and to give its findings in regard to newly created issues. The Hon'ble High Court has also held that in the present matter under the provision of Order 41 Rule 25 of Civil Procedure Code, becomes mandatory (shall) though in this provision, the word 'may' has been used. No doubt in the present matter also the Appellate Court has framed 6 additional issues which are legal in nature and also factual, with....
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....at the first instance has come to the conclusion that the lower court has omitted to frame or try any issue or to determine any question of fact material for the right decision of the suit on merits. It has to be noted that where a finding is called for on the basis of certain issues framed by the appellate court, the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of the first instance. This position was highlighted in Gogula Gurumurthy and Others v. Kurimeti Ayyappa (1975(4) SCC 458), where it was inter-alia observed in para 5 as follows: "We consider that when a finding is called for on the basis of certain issues framed by the appellate Court the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance. We find the same view taken in Gopi Nath Shukul v. Sat Narain Shukul (AIR 1923 All 384)." 11. The delicate question that remains to be examined is what is the position in law when both the expression "shall" and "may" are used ....
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....an confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so." 17. Explaining the doctrine of power coupled with duty, de Smith, ('Judicial Review of Administrative Action', 1995; pp.300-01) states: "Sometimes the question before a court is whether words which apparently confer a discretion are instead to be interpreted as imposing duty. Such words as 'may' and 'it shall be lawful' are prima facie to be construed as permissive, not imperative. Exceptionally, however, they may be construed as imposing a duty to act, and even a duty to act in one particular manner." (emphasis supplied) 18. Wade also says (Wade & Forsyth; 'Administrative Law: 9th Edn.): p.233): "The hallmark of discretionary power is permissive language using words such as 'may' or 'it shall be lawful', as opposed to obli....
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....ercise the discretion. Rule 250 merely vested discretion in him but it did not require him to exercise the power. Relying upon the observations of Earl Cairns, L.C., the Court observed: "The discretion vested in the Commissioner of Police under Rule 250 has been conferred upon him for public reasons involving the convenience, safety, morality and the welfare of the public at large. An enabling power of his kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor can it be evaded.... " (emphasis supplied) 24. In Ratlam Municipality v. Vardichan (1980 (4) SCC 162), some residents of Ratlam Municipality moved the Sub- Divisional Magistrate under Section 133 of the Code of Criminal Procedure, 1973 for abatement of nuisance by directing the municipality to construct drain pipes with flow of water to wash the filth and stop the stench. The Magistrate found the facts proved and issued necessary directions. The Sessions Court, in appeal, reversed the order. The High Court, in revision, restored the judgment of the Magistrate and the matt....
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....edium of expressing the intention and the object that particular provision or the Act seeks to achieve. Therefore, it is necessary to ascertain the intention. The word `shall' is not always decisive. Regard must be had to the context, subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the court to try to get at the real intention of the legislature by carefully analysing the whole scope of the statute or section or a phrase under consideration. The word `shall', though prima facie gives impression of being of mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature and design and the consequences that would flow from the construction thereof one way or the other. In that behalf, the court is required to keep in view the impact on the profession, necessity of its compliance; whether the statute, if it is avoided, provides for any co....
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....sed, the purpose and the advantages sought to be achieved by the use of this word, and the like. It is equally well-settled that where the word `may' involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word `may' should be interpreted to convey a mandatory force. As a general rule, the word `may' is permissive and operative to confer discretion and especially so, where it is used in juxtaposition to the word 'shall', which ordinarily is imperative as it imposes a duty. Cases however, are not wanting where the words `may' `shall', and `must' are used interchangeably. In order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the legislature should be looked into along with the pertinent circumstances. The distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, p....