Delhi Rent Control Act, 1958: s. 15(7) – Power of the Rent Controller to strike out defence of the tenant, pending eviction petition – Nature of – Held: Power vested u/s. 15(7) is discretionary and not mandatory – It depends on contumacious or deliberate default and must be construed harmoniously so as to balance the rights and obligations of the tenant and the landlord – Power u/s. 15(7) being an exception, is to be exercised with due care and circumspection – On facts, on the date of the order passed by the Rent Controller itself, the entire arrears as directed to be deposited by the tenants stood paid and also on the date of the order passed by the Rent Controller striking out his defence, rent for the entire intervening period and even beyond had been paid – Thus, the charge of contumacious failure and deliberate default in making payment levelled against the tenants is ill founded – Decision of the Rent Controller as upheld by the High Court, striking out defence of the tenant has not been exercised judiciously and with circumspection and thus, is unsustainable and set aside.
Allowing the appeal, the Court
HELD: 1.1 In Section 13(5) of Delhi and Ajmer Rent Control Act, 1952 the language was that on the failure of the tenant to deposit the rent, in terms of the mandate of law, “the Court shall order the defence against ejectment to be struck off”. In the Delhi Rent Control Act, 1958, Section 15(7) deals with the matter in case of failure of the tenant to make the payment for deposit as required by the Act. The Rent Controller has a discretion to consider the facts and circumstances of each case and exercise his discretion judiciously in accordance with law. The change of the words from “the Court shall order the defence against ejectment to be struck out” to the words “the Controller may order the defence against eviction to be struck out” is a deliberate modification in law in favour of the tenant. Under the Act 1952, the Court had no option but to strike out the defence if the failure to pay or deposit the rent is proved; under the Act, 1958, the Controller who takes the place of the Court has a discretion in the matter, so that in proper cases, even if there is a default in making the payment of rent, but if he is satisfied on the basis of the material on record in exercise of judicial discretion, may refuse to strike out the defence in the given facts & circumstances of the case. The inevitable result on comparison of Section 13(5) of the Act, 1952 and Section 15(7) of Act, 1958 be that the Court would not be bound to strike out the defence against ejectment in case of default in payment of rent in compliance to the order passed under Section 15(1) of the Act, 1958 and it is always open to the Controller to examine the facts of each case while exercising its discretion which obviously has to be judicious in approach and with circumspection. [Para 14, 15, 17][262-E-F; 263-E-F; 264-D-E]
1.2 Mere failure to pay rent on the part of the tenant is not enough to justify an order striking out the defence. It is only a wilful failure or deliberate default or volitional of non–performance that can call for the exercise of the extraordinary power vested in the Court. More importantly, the plentitude of the discretionary power of the Court under Section 15(7) of the Act, 1958 is with the Rent Controller whether or not to strike out the defence, needless to say that the effect of striking out the defence under Section 15(7) of Act, 1958 is that the tenant be deprived of the protection available to him under Section 14 and it is imperative that such power vested with the Rent Controller under Section 15(7) of the Act, 1958 must be exercised with due care and circumspection. The power vested under Section 15(7) of the Act, 1958 is discretionary and not mandatory and depends on contumacious or deliberate default and must be construed harmoniously so as to balance the rights and obligations of the tenant and the landlord and the power under Section 15(7) of Act, 1958 being an exception to be exercised with due care and circumspection. [Para 19, 24][265-F-G; 266-G; 267-A] & ORS.
2.1 In the instant case, on the date of the order passed by the Rent Controller itself, the entire arrears as directed to be deposited by the appellants stood paid and also on the date of the order passed by the Rent Controller striking out his defence, rent for the entire intervening period and even beyond had been paid and what it appears is that suitable reconciliation and adjustments were required to be made against the months for which rent was payable but what cannot be disputed is that the amount which the appellants were called upon to pay and what they have, pursuant to the directions of the Rent Controller was paid/deposited at all relevant point of time in excess of what was payable to the landlord. In the given circumstances, the charge of contumacious failure and deliberate default in making payment levelled against the appellants–tenants is, thus, ill founded. [Para 29][268-E-G]
2.2 The amount of rent payable for the demised premises may be a factor which cannot be brushed aside, but the facts and circumstances of the case on hand, do not suggest any negligence, defiance or contumacious non–payment of the amount payable to the landlord to warrant the taking of that “exceptional step” which is bound to render the tenant defenceless in his contest against the landlord. [Para 30][268-H; 269-A]
2.3 The decision of the Rent Controller and confirmed by the Single Judge of the High Court upholding the decision of striking out of the defence of the appellants which certainly entails adverse consequences in depriving of taking their defence and to contest the eviction application filed by the landlord has not been exercised judiciously and with circumspection and thus, the impugned judgment is unsustainable and is set aside. [Para 31][269-B-C]
Ashoka Marketing Ltd. and Anr. v. Punjab National Bank and Ors. (1990) 4 SCC 406 : [1990] 3 SCR 649; Miss. Santosh Mehta v. Om Prakash and Ors. (1980)3 SCC 610 : [1980] 3 SCR 325; Smt. Kamla Devi v. Shri Vasudev (1995)1 SCC 356 : [1994] 6 Suppl. SCR 603; M/s. Jain Motor Car Co., Delhi Vs. Smt. Swayam Prabha Jain & Anr. (1996) 3 SCC 55 : [1996] 2 SCR 663; Aero Traders (P) Ltd. Vs. Ravinder Kumar Suri (2004)
8 SCC 307; Amrit Lal Vs. Shiv Narain Gupta (2010) 15 SCC 510 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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