Mandatory vs directory provisions differ in what a breach costs, since an act done in breach of a mandatory provision fails while a directory provision is satisfied by substantial compliance. The classifier is not the word shall but what the statute says follows from non-compliance.
Order VIII Rule 1 of the Code of Civil Procedure, 1908 says that the defendant shall present a written statement within thirty days from the service of summons, and the proviso allows the court to extend that time up to ninety days. Neither the rule nor the proviso says what happens to a written statement handed in on day ninety-one.
The Supreme Court answered a version of that question in a 2025 ruling, in Lifestyle Equities C.V. v. Amazon Technologies Inc., where it held that Order XLI Rule 5 of the same Code does not compel an appellate court to demand a deposit of the disputed amount before it stays execution, even though the rule uses the word shall. The condition is directory, and the appellate court keeps a discretion over whether to impose it.
What follows takes the enquiry in the order a court runs it. The words come first, then the conditions that classify them, then what a breach actually does to the act.
The weight of the mandatory and directory distinction shows up when the same delay meets two different courtrooms. A defendant in an ordinary money suit before a civil court files a written statement on the hundredth day after service of summons, well past the ninety-day outer limit in the proviso. A second defendant, sued on a commercial contract before a commercial court, files on the hundredth day too.
The first defendant is probably still in the case, because the court retains a power to take the statement on record for reasons it records in writing. The second defendant is not, because the commercial-courts amendments state that the right to file stands forfeited and withdraw the court’s power to extend the period. The rule reads almost identically in both courts and the delay is identical, but the amended version spells out what non-compliance costs and the unamended version says nothing about it.
The words the provision uses in the mandatory and directory enquiry
The words a provision uses start the mandatory and directory enquiry and do not finish it. Shall carries a prima facie obligation, which the Supreme Court accepted in State of U.P. v. Babu Ram Upadhya in November 1960, while adding that a court may still ascertain the real intention of the legislature from the nature and design of the statute and from the consequences that would follow from construing it one way or the other. The presumption is a starting position, and the rest of the statute is allowed to displace it. That case itself turned on Rule 486 of the Police Regulations framed under the Police Act, and the Court set aside the dismissal of a sub-inspector because the inquiry against him had been held by an officer the rule did not authorise to hold it.
P.T. Rajan v. T.P.M. Sahir put the same point without the hedge. Whether a statute is directory or mandatory, the Court held, does not depend on the user of the words shall or may, and the question has to be posed and answered having regard to the purpose and object the provision seeks to achieve. The dispute was an election petition in which the challenge rested on the electoral roll for a constituency not having been finally published within the prescribed time. The judgment also added a proposition that settles a good many procedural disputes, which is that a provision procedural in nature may not be held mandatory although it employs the word shall, if no prejudice is caused by the breach.
One working presumption from the same judgment is worth carrying into practice. Where a statutory functionary is asked to perform a statutory duty within the time prescribed for it, that time limit is ordinarily directory rather than mandatory. The identical problem runs through the law of evidence, where the Bharatiya Sakshya Adhiniyam separates what a court may presume from what it shall presume, and there the two verbs mark a real difference in judicial choice rather than a difference in emphasis.
When may is read as a mandatory provision
May is read as compulsory where the power it confers is coupled with a duty to exercise it, so that the person holding the power has no real freedom to withhold it. The question is whether an obligation is annexed to the power, so that once the legally prescribed conditions are shown by evidence, a particular kind of order must be made.
The Supreme Court set that test out in Official Liquidator v. Dharti Dhan (P) Ltd., decided in February 1977 on Sections 442 and 446 of the Companies Act, 1956. The issue was the meaning of the word may in Section 442, which lets the court stay proceedings against a company in winding up. The Court held that where the statute leaves no room for discretion, the power has to be exercised in the manner indicated by the other legal provisions that supply the legal context, and the permissive verb then yields to the obligation the section creates.
On the section actually before it the Court found the opposite. A stay under Section 442 cannot be passed mechanically or as a matter of course on proof of some prescribed facts, because it can only be made judicially on an examination of the totality of the facts, which vary from case to case. The judgment therefore establishes when may becomes compulsory and then declines to apply that conclusion to the section in front of it.
That combination is the useful part of the case. If shall can be read down to a direction and may can be read up to a command, the classification is not sitting in the verb at all, and it has to be found somewhere else in the statute. Where the courts look is the design of the enactment and what the enactment says a breach costs.
The conditions courts apply to separate mandatory and directory provisions
The condition courts apply to separate mandatory and directory provisions is the intention of the legislature, which decides nothing until it is broken down into factors, and the Constitution Bench decisions have broken it down. Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur, decided in October 1964, held that the question cannot be resolved by laying down any general rule and depends on the facts of each case. It turns on the intent of the law-maker, gathered not only from the phraseology of the provision but from the nature and design of the statute and from the consequences that would follow from construing it in one way or the other.
Babu Ram Upadhya supplies those factors in a usable order. A court looks at the nature and design of the statute and at whether the statute itself provides for the contingency of non-compliance. It then asks whether a penalty attaches to the breach, how serious or trivial the consequences are, and above all whether the object of the legislation would be defeated or furthered by either reading. Raza Buland Sugar shows the list working on a single enactment, because the Court held the first part of Section 131(3) of the U.P. Municipalities Act mandatory while holding the manner of publication prescribed by Section 94(3) directory, so that publication of the tax proposals in an Urdu newspaper rather than a Hindi one was substantial compliance.
The consequence clause that makes a provision mandatory
The consequence clause is what makes a provision mandatory in most disputes. Where the statute itself states what follows from a breach, and withdraws the court’s power to excuse it, the provision is almost always mandatory. Where the statute says nothing about the consequence, the provision is usually directory, because a court will not manufacture a forfeiture the legislature declined to write.
Order VIII Rule 1 is the clearest place to watch this happen, since the same rule has been classified both ways. In Kailash v. Nanhku, decided in April 2005, the Supreme Court held that the rule, though couched in mandatory form, is directory, being a provision in the domain of processual law. A court may extend the time in appropriate cases, and the Court was careful to say that the extension is not available as a matter of routine. That position was reaffirmed for ordinary suits in Bharat Kalra v. Raj Kishan Chabra in 2022.
The commercial-courts amendments changed the answer for one class of suit. In SCG Contracts (India) Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd., decided in February 2019, the Supreme Court held the amended Order V Rule 1, Order VIII Rule 1 and Order VIII Rule 10 to be mandatory in a commercial suit. Beyond one hundred and twenty days from the date of service of summons the defendant forfeits the right to file the written statement, and the court shall not allow it to be taken on record. The defendant in that case had been served in July 2017 and had filed nothing inside the window, and the Court refused to let the statement in afterwards.
What separated the two results was not the verb. Shall appears on both sides of the contrast, in provisions that read almost identically. The amendment added the statement that the right to file stands forfeited and, through the proviso to Order VIII Rule 10, removed the court’s power to extend the period any further, and the unamended rule did neither of those things. The consequence clause is what carried the provision across the line.
For a practitioner the sequence is short. Find the operative words, look for a clause that says what happens if they are not followed, then check whether any power to condone survives that clause. A written statement in an ordinary civil suit and one in a commercial suit sit at different points of the same procedural map, and the drafting of the consequence is what tells them apart.
Where a directory provision is later reclassified as mandatory
A directory provision is reclassified as mandatory when a larger bench takes a different view of the same words, because the classification is a construction a court places on the statute rather than a property of the text. The Consumer Protection Act supplies the cleanest example of a reversal.
Section 13(2) of the Consumer Protection Act, 1986 gave the opposite party thirty days to file its version of the case, extendable by a further fifteen. In Topline Shoes Ltd. v. Corporation Bank, decided in July 2002, the Supreme Court held that period not to be mandatory, and the reason it gave was the absence of a consequence clause, since the Act said nothing about what followed when a forum allowed more than forty-five days.
Eighteen years later a Constitution Bench took the other view. In New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd., reported in 2020, the Court overruled Topline Shoes and held that the consumer fora have no power and no jurisdiction to accept a written version beyond the forty-five days the Act allows.
The words the two benches read were identical. What the later bench weighed differently was the object of the statute, because a consumer statute built for speedy disposal is defeated by an extension power with no outer limit. A long-settled construction does carry weight before it is displaced, which is the ground contemporanea expositio occupies, and here that weight was not enough to save the earlier reading.
The effect of non-compliance with a mandatory or directory provision
The effect of non-compliance with a mandatory provision is that the act done in breach fails, and the effect of non-compliance with a directory provision is that the act stands where the statutory purpose has still been met. Neither answer follows automatically, and both require the court to identify what the provision was protecting before it can say which one applies.
Working a real problem starts with identifying the duty and the person on whom it falls. A duty cast on a private party carries a stronger presumption of obligation than a time limit cast on a statutory functionary, which P.T. Rajan treats as ordinarily directory. The party who suffers from an official’s delay is usually not the party the time limit was written to discipline.
After that the sequence is mechanical. Locate any clause stating a consequence for the breach, ask whether the statute leaves any power to condone it, and ask whether the object of the legislation survives if the step is treated as skippable. A court will not read a consequence into an enactment that omits one, which is the position on casus omissus, and a legislature that wants a consequence usually writes it into a proviso or an explanation.
What follows from breaching a mandatory provision
Breaching a mandatory provision makes the act done in breach fail, and where the statute has withdrawn the forum’s power to excuse the breach, the failure goes to jurisdiction rather than to discretion. The difference is worth holding on to, because a discretionary refusal can be attacked as an improper exercise of discretion, and an absence of jurisdiction cannot be cured by any exercise of it at all.
Hilli Multipurpose puts the point in those terms. The consumer fora have no power and no jurisdiction to accept a written version beyond forty-five days, so a version tendered on the forty-sixth day is not merely late, and there is nothing left for the forum to condone.
SCG Contracts reaches the same outcome by a different route. The right to file the written statement stands forfeited past one hundred and twenty days, and the proviso to Order VIII Rule 10 removes the court’s power to extend the period any further. The defendant is left to contest the suit without a written statement on the record.
A reclassification of this kind creates a problem the Court had to answer separately. Written statements already taken on record on the strength of the earlier construction would have become vulnerable overnight, and in a judgment of February 2021 the Supreme Court held that the Constitution Bench ruling in Hilli Multipurpose operates prospectively. Consumer fora could keep the versions they had already accepted before the Constitution Bench delivered its ruling in March 2020, and the mandatory reading governs everything filed after it.
What follows from breaching a directory provision
Breaching a directory provision leaves the act valid where there has been substantial compliance with the statutory purpose, and the defect is curable rather than fatal. Raza Buland Sugar is the plain illustration, because publication of the tax proposals in a newspaper of the wrong language still counted, the object of the requirement being that ratepayers should learn of the proposal in time to object to it.
Directory does not mean costless. A court that extends time under Order VIII Rule 1 in an ordinary suit does so on terms it records, and Lifestyle Equities holds that an appellate court retains the discretion to require a deposit even though Order XLI Rule 5 does not compel one, with unconditional stays to be granted sparingly. The defaulting party keeps its right to be heard and ordinarily pays something for the indulgence.
Frequently asked questions
Is a provision using the word shall always mandatory?
A provision using shall is not always mandatory, because shall raises only a prima facie presumption of obligation, and Babu Ram Upadhya allows a court to displace that presumption from the design of the statute and the consequences of the two readings. P.T. Rajan states plainly that the classification does not depend on the user of the words shall or may. In 2025 the Supreme Court read Order XLI Rule 5 as directory notwithstanding the word.
What is the main test to decide whether a provision is mandatory or directory?
The test is the intention of the legislature, and Raza Buland Sugar holds that no general rule can be laid down for finding it, so the answer depends on the facts of each case. The factor that decides most disputes in practice is whether the statute states a consequence for non-compliance and whether it leaves any power to condone the breach. Where both are present the provision is almost always mandatory.
What happens if a mandatory provision is not complied with?
The act done in breach fails, and where the statute removes the forum’s power to excuse the breach the failure goes to jurisdiction. In Hilli Multipurpose the Supreme Court held that consumer fora have no jurisdiction to accept a written version beyond forty-five days at all. In SCG Contracts a defendant in a commercial suit forfeits the right to file a written statement once one hundred and twenty days have run from service.
Can the same provision be mandatory for one party and directory for another?
The same words can produce opposite answers in different settings, and Order VIII Rule 1 demonstrates it. The rule is directory in an ordinary civil suit under Kailash v. Nanhku and mandatory in a commercial suit under SCG Contracts, because the commercial-courts amendments added a forfeiture clause and withdrew the power to extend. The classification follows the statutory scheme the provision sits in rather than the identity of the party.
References
- State of U.P. v. Babu Ram Upadhya, AIR 1961 SC 751, Supreme Court of India, judgment dated 25 November 1960 (shall is prima facie mandatory; the real intention is ascertained from the nature and design of the statute and the consequences of either construction).
- Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur, AIR 1965 SC 895, Supreme Court of India, Constitution Bench, judgment dated 30 October 1964 (Sections 131(3) and 94(3) of the U.P. Municipalities Act; no general rule is possible and the manner of publication was directory).
- Official Liquidator v. Dharti Dhan (P) Ltd., (1977) 2 SCC 166, Supreme Court of India, judgment dated 10 February 1977 (Sections 442 and 446 of the Companies Act, 1956; when may carries an obligation annexed to the power).
- Topline Shoes Ltd. v. Corporation Bank, (2002) 6 SCC 33, Supreme Court of India, judgment dated 8 July 2002 (Section 13(2) of the Consumer Protection Act, 1986 held not mandatory for want of a consequence clause).
- P.T. Rajan v. T.P.M. Sahir, (2003) 8 SCC 498, Supreme Court of India, judgment dated 26 September 2003 (the classification does not depend on the user of shall or may; a time limit on a statutory functionary is ordinarily directory).
- Kailash v. Nanhku, (2005) 4 SCC 480, Supreme Court of India, judgment dated 6 April 2005 (Order VIII Rule 1 of the Code of Civil Procedure, 1908 held directory as a provision of processual law).
- SCG Contracts (India) Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd., Supreme Court of India, Civil Appeal No. 1638 of 2019, judgment dated 12 February 2019 (120-day outer limit in a commercial suit held mandatory; the right to file stands forfeited).
- New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd., (2020) 5 SCC 757, Supreme Court of India, Constitution Bench, judgment dated 4 March 2020 (45-day period under the Consumer Protection Act, 1986 held mandatory; Topline Shoes overruled).
- New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd., Supreme Court of India, judgment dated 11 February 2021 (the Constitution Bench ruling operates prospectively).
- Bharat Kalra v. Raj Kishan Chabra, 2022 LiveLaw (SC) 465, Supreme Court of India (Order VIII Rule 1 time limit reaffirmed as not mandatory in an ordinary suit).
- Lifestyle Equities C.V. v. Amazon Technologies Inc., 2025 LiveLaw (SC) 974, Supreme Court of India (Order XLI Rule 5 of the Code of Civil Procedure, 1908 held directory; the deposit condition is discretionary).
This article is for informational and educational purposes only and does not constitute legal advice. Readers should consult a qualified advocate before acting on any point discussed here.