Delhi High Court
Rajbir Singh vs Mohan Lal Sharma on 24 April, 1996
Equivalent citations: 1996IIIAD(DELHI)551, 62(1996)DLT451, 1996(37)DRJ548
JUDGMENT C.M. Nayar, J.
(1) This appeal is directed against the judgment dated April 15, 1993 passed by Shri K.S.Gupta, Rent Control Tribunal, Delhi, which inter-alia upheld the order passed by Shri P.D.Gupta, Additional Rent Controller striking out the defense of the appellant under Section 15(7) of the Delhi Rent Control Act (hereinafter referred to as 'the Act') for not making payment/deposit in compliance with the order passed under Section 15(1) of the Act.
(2) The brief facts of the case are that the respondent Filed petition for eviction on the ground of non payment of rent which was being contested by the appellant. On April 1, 1991 respondent filed an application on the allegations that an order under Section 15(1) of the Act was passed against the appellant on 2nd November, 1989 for payment of rent at the rate of Rs.250.00 per month with effect from March 1, 1987. On the application filed for withdrawal of rent it was reported that the appellant deposited only a sum of Rs.8250.00 by way of arrears of rent upto November, 1989. As he failed to comply with the order under Section 15(1), prayer was made that his defense may be struck out. The appellant did not dispute the passing of the order under Section 15(1) of the Act on November 2, 1989 for deposit of rent with effect from March 1, 1987 at the rate of Rs.250.00 per month as alleged. However, it was stated that the said order had been duly complied with.
(3) The appellant also filed an application under Section 151 of the Code of Civil Procedure on September 17, 1991 wherein it was alleged that in compliance of the order under Section 15(1) of the Act dated November 2, 1989, a sum of Rs.8250.00 was deposited by him towards the rent upto the period November, 1989 as advised by his counsel. The said counsel did not explain to him the later part of the order passed under Section 15(1) which directed h to pay or deposit the future monthly rent also and only on August 1, 1991 when he came to Court he learnt about the serving of the application filed under Section 15(7) of the Act by the respondent. It was alleged that on coming to know about the contents of the order under Section 15(1) of the Act he immediately deposited on August 14, 1991 Rs.6000.00 towards arrears of rent upto December 31, 1991. The default in not depositing the future rent month by month after November, 1989 was thus neither intentional nor deliberate. It was prayed that the default, accordingly, may be condoned.
(4) The Additional Rent Controller held that no circumstances had been given in the reply by the appellant/tenant explaining that it was beyond his control to deposit the rent in time. The appellant made repeated defaults in deposit of rent which he was to make every month and thus committed several defaults continuously without any reason. As the appellant failed to make payment/deposit in compliance of the order passed under Section 15(1) of the Act repeatedly without any reason, the defense was accordingly struck out. The Tribunal examined the matter on appeal by the appellant and held on appreciation of facts and evidence on record that the default committed by the appellant in not paying or depositing the future rent beyond November, 1989 upto 14th August, 1991, on which date he deposited Rs.6000.00 by way of arrears of rent till 31st December, 1991, was either intentional or contumacious and the Additional Rent Controller, therefore, had rightly struck out his defense under Section 15(7) of the Act. The order does not suffer from any illegality, infirmity and the appeal, as a consequence, was dismissed. The present Second Appeal is directed against the orders passed by the Additional Rent Controller as well as by the Rent Control Tribunal.
(5) The learned counsel for the appellant has contender that non compliance of the order passed under Section 15(1) of the Act was neither intentional nor deliberate and the appellant as a consequence moved an application under Section 151 of the Code of Civil Procedure for condensation of delay on November 16, 1991. The main plea raised in the said application was that the default in not depositing the future rent every month after November, 1989 was neither intentional nor deliberate but due to the lack of proper and timely advice by the counsel. In this background it was prayed that the delay may be condoned and the application under Section 15(7) of the Act be dismissed. Reliance is placed on the judgments as reported in Miss Santosh Mehta v. Om Parkash and others 1980(2) Rent Control Reporter 516; Mohd. Sulain v. Mrs. Sunita Chugh 1982 Rajdhani Law Reporter 29 and Ram Swaroop Kathuria v. Nagpal Optical Co. .
(6) In Santosh Mehta (supra) the Supreme Court has held that defense of the tenant should not be struck out unless there is deliberate and wilful default. Paragraphs 2,3,4 and 8 of the judgment may be reproduced as under:
"2.Rent Control laws are basically designed to protect tenants because scarcity of accommodation is a nightmare for those who own none and, if evicted will be helpless. Even so, the legislature has provided some grounds for eviction, and the Delhi law contains as extreme provision for striking out altogether the defense of the tenant which means that even if he has excellent picas to negative the landlord's- claim the court will not hear him. Obviously, this is a harsh extreme and having regard to the benign scheme of the legislation this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent. That is why a discretion is vested) not a mandate imposed. Section 15(7) reads thus :
"IF a tenant fails to make payment or deposit as required by this section, the Controller may order the defense against eviction to be struck out and proceed with the hearing of the application".
3.We must adopt a socially informed perspective while construing the provisions and then it will be plain that the Controller is armed with a facilitative power. He may or may not strike out the tenant's defense. A judicial discretion has built-in-self- restraint, has the scheme of the statute in mind, cannot ignore the conspectus of circumstances which are present in the case and has the brooding thought playing on the power that, in a Court, striking out a party's defense is an exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent. First of all, there must be a failure to pay rent which, in the context, indicates wilful failure, deliberate default or volitional non-performance. Secondly, the section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power. to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defense. The last resort cannot be converted into the first resort; a punitive direction of court cannot be used as a booby trap to get the tenant out. Once this theological interpretation dawns, the mist of misconception about matter-of-course invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing truant with the duty underlying the power.
4.There is no indication whatsoever in the Act to show that the exercise of the power of striking out of the defense under Section 15(7) was imperative whenever the tenant failed to deposit or pay any amount as required by Section 15. The provisions contained in Section 15(7) of the Act are directory and not mandatory. It cannot be disputed that Section 15(7) is a penal provision and gives to the Controller discretionary power in the matter of striking out of the defense, and that in appropriate cases, the Controller may refuse to visit upon the tenant the penalty of non-payment or non-deposit. The effect of striking out of the defense under Section 15(7) is that the tenant is deprived of the protection given by Section 14 and, therefore, the powers under Section 15(7) of the Act must be exercised with due circumspection.
8.The tenant did all she could by paying to the advocate the sums regularly but the latter betrayed her and perhaps helped himself. To trust one's advocate is not to sin deliberately. She was innocent but her advocate was nocent. No party can be punished because her advocate behaved unprofessionally. The Rent Controller should have controlled himself by a plain look at the eloquent facts and not let down the helpless woman who in good faith believed in the basic ethic of a noble profession. She did not fail to pay or deposit and, in any view, no case for punitive exercise of discretion has been made out. The conclusion necessarily follows that the striking out of the defense was not legal and the appellant should have been given an opportunity to contest the claim of the landlord for her eviction. A sensitized judicial appreciation was missing. Unfortunately, the High Court did not closely look at this facet of the issue. On the other hand, the appeal was dismissed as not maintainable, in view of S.25B."
(7) In Mohd. Sulain (supra) the Court stated the law that defense of the tenant should be struck out only if late deposit is wilful or contumacious. The conduct of the tenant and all the circumstances should be considered and in case the tenant has been depositing several months rent much in advance of the due dates and some times to the extent of more than six months in advance and even the last payment was made before filing the application for striking out the defense by the landlord indicate that the conduct showed that the tenant never wanted to withhold the rent and as a matter of abundant caution invariably deposit in advance was made. Similar view was expressed by P.K.Bahri, J. in the case of Ram Swaroop Kathuria (supra). Paragraph 9 of the judgment reads as follows: "THE Rent Controller, in my view, should have examined the explanation given by the tenant with regard to omission to deposit rent of months of July and August 1984 in time without being obsessed with the warning administered vide order dated September 12, 1984. The Rent Controller for reasons best known to him had not bothered to examine the explanation given by the appellant in this regard. As far as the supplementary application was concerned where delay has been of one day in deposit of rent of April and one day delay in deposit of rent of October and three days delay in the deposit of rent of November 1984, the said delays should not have been taken note of for striking out the defense when the Rent Controller had thought it fit not to give any opportunity to the appellant for filing the reply to that application under Section 15(7) for getting his explanation.".
(8) The Supreme Court in M/s Jain Motor Car Co., Delhi v. Smt. Swayam Prabha fain & another 1996(2) Scale 197 reviewed the entire law on the subject and came to the-conclusion that striking of defense under Section 15(7)v was in discretion of the Rent Controller and in case such discretion was properly exercised it will be erroneous on the part of the High Court in interfering with the same. Paragraphs 16,17 and 18 of this judgment are illustrative and may be reproduced as follows:
16.A Three Judge Bench (Hon'ble V.R. Krishna Iyer, R.S. Pathak and O. Chinnappa Reddy, JJ.) of this Court in Shyamacharan Sharma vs. Dharamdas , on a consideration of the provisions of the M.P. Accommodation Control Act (41 of 1961), which were similar to Delhi Act, laid down that since Section 13(6) vests in the court the discretion to order the striking out of the defense, it does not clothe the landlord with an automatic right to a decree for evocation nor does it visit the tenant with the penalty of a decree for eviction being straightaway passed against him. It further observed as under:
"IFS.13 were to be construed as mandatory and not as visiting a discretion in the Court, it might result in the situation that a tenant who has deposited the arrears of rent within the time stipulated by S.13(1) but who fails to deposit thereafter the monthly rent on a single occasion for a cause beyond his control may have his defense struck out and be liable to summary eviction. We think that S.13 quite clearly confers a discretion, on the court, to strike out or not to strike out the defense, if default is made in deposit or payment of rent as required by S.13(l). If the court has the discretion not to strike out the defense of a tenant committing default in payment or deposit as required by S.13(l), the court surely has the further discretion to condone the default and extend the time for payment or deposit. Such a discretion is a necessary implication of the discretion not to strike out the defense. Another construction may lead, in some cases, to a perversion of the object of the Act, namely, 'the adequate protection of the tenant'. S.12(3) entitles a tenant to claim protection against eviction on the ground specified in S.12(l) (a) if the tenant makes payment or deposit as required by S.13. On our consideration of S.13 that the Court has the power to extend the time for payment or deposit, it must follow that payment or deposit, within the extended time will entitle the tenant to claim the protection of S.12(3)."
17.Both these decisions came to be considered by this Court in Ram Murty vs. Bhola Nath & Anr. , which was a case under the Delhi Rent Control Act, 1958, and it was laid down that so far as the provisions relating to the striking out of defense contained in Section 15(7) are concerned they are in pari materia with the provision contained in the M.P. Act and since a Three Judge Bench in Shyamcharan's case (supra) had already held that it was Within the discretion of the Rent Controller to strike or not to strike out the defense, the Two Judge decision in Hem Chand vs. Delhi Cloth & General Mills shall be treated as overruled. It was laid down as under:
"15.We must confess that the two decisions in Hem Chand and Shyamacharan supra, are irreconcilable.
16.It would be incongruous to hold that even if the defense of the tenant is not to be struck out under S.15(7), the tenant must still be visited with the punishment of being deprived of the protection under S.14(2). In Hem Chand's case the court went to the extent of laying down that even if the defense of the tenant is struck out under Section 15(7), the Rent Controller could not straightaway make an order for eviction in favour of the landlord under S.14(1)(a). The Court held that the High Court was wrong in its assumption that failure to comply with the requirements of S.15(1) vests in the landlord an 'indefeasible right' to secure an order for the eviction of the tenant under S.14(1)(a). The Court set aside the judgment of the High Court taking that view and remanded the matters to the Rent Controller observing that there was still an issue to be tried. If that be so, the question at once arises "What is the issue to be tried?" If the landlord has still to make out a case before the Rent Controller that he was entitled to an order for eviction of the tenant under S.14(1) surely the tenant has the right to participate in the proceedings and cross examine the landlord. It must logically follow as a necessary corrollary that if the defense is not to be struck out under S. 15(7) it means that the tenant has still the defenses open to him under the Act. In the premises, the conclusion is irresistible that he has the right to claim protection under S.14(2). What is of essence of S.14(2) and ofS.15(6) is whether there has been a substantial compliance with the order passed under S.15(l). The words "as required by S.15(1)" in these provisions must be construed in a reasonable manner. If the Rent controller has the discretion under S.15(7) not to strike out the defense of the tenant, he necessarily has the power to extend the time for payment of future rent under S.15(l) where the failure of the tenant to make such payment or deposit was due to circumstances beyond his control. The previous decision in Hem Chand's case interpreting S.15(7) and S.14(2) in the context of S.15(l) of the Delhi Rent Control Act, 1958, although not expressly overruled, cannot stand with the subsequent decision in Shyamcharan's case interpreting the analogous provisions of the Madhya Pradesh Accommodation Control Act, 1961 as it is of a larger Bench.
18.Another Three Judge Bench of this Court in a recent decision in Kamla Devi (Smt) vs. Vasdev , which was also a case under the Delhi Act, has affirmed the decisions rendered in Ram Murthy's case (supra) and Shyamcharan's case (supra). The learned Judges (Hon'ble J.S. Verma, S.P. Bharucha & Suhas C. Sen) were of the opinion that the provisions of this Act were similar to the provisions of the Madhya Pradesh Act. They observed as under :-
"20.On behalf of the appellant it has been contended that the principles laid down in this case should not be extended to a case governed by the provisions of Delhi Rent Control Act. We do not find any material distinction between the provisions of Section 12(1), (3) and Section 13(1), (5) and (6) of the Madhya Pradesh Act and the corresponding provisions of Section 14 (1), (2) and Section 15 (1), (7) of the Delhi Act. In fact this argument was rejected in the case of Ram Murti Vs. Bhola Nath. In that case, construing the provisions of the Delhi Act, it was held that Section 15(7) conferred a discretionary power on the Rent Controller to strike out the defense of the tenant. That being the position, the Rent Controller had, by legal implication, power to condone the default on the part of the tenant in making payment or deposit of future rent or to extend time for such period or deposit." At another place they observed as under:
"21.In coming to this conclusion reliance was placed on the decision in the case of shyamcharan Sharma case. It was argued on behalf of the respondent that Shyamcharan Sharma case was decided under the Madhya Pradesh Accommodation Control Act, 1961 which had a different scheme altogether and had no application to a case to be decided under the provisions .of the Delhi Rent Control Act. This argument was repelled by pointing out in that judgment that the scheme of the Madhya Pradesh Accommodation Control Act, 1961 was almost similar to that of the Dehi Act with regard to the claim of the landlord for eviction of the tenant on failure to pay rent. The only difference was that under the Madhya Pradesh Act the landlord had to bring a suit for eviction before a Civil Court under Section 12(1)(a), whereas under the Delhi Act an application had to be made before the Rent Controller under Section 14(1)(a)."
AFTER noticing the similarities in the Delhi Act and the Madhya Pradesh Act, the Court finally observed as under:
"IN our view, sub-section (7) of Section 15 of the Delhi Rent Control Act, 1958 gives a discretion to the Rent Controller and does not contain a mandatory provision for striking out the defense of the tenant against eviction. The Rent Controller may or may not pass an order striking out the defense. The experience of this discretion will depend upon the facts and circumstances of each case. If the Rent Controller is of the view that in the facts of a particular case the time to make payment or deposit pursuant to an order passed under sub-section (1) of Section 15 should be extended, he may do so by passing a suitable 'order. Similarly, if he is not satisfied about the case made out by the tenant, he may order the defense against eviction to be struck out. But, the power to strike out the defense against eviction is discretionary and must not be mechanically exercised without any application of mind to the facts of the case."
(9) The Rent Controller, therefore, is empowered to pass an order in striking out or not striking out the defense. The discretion is vested in him which has to be considered on the facts and circumstances of each case. In case) the Rent Controller is not satisfied about the case made out by the tenant he will be at liberty to order the defense against the tenant to be struck out. The discretion, however, as has been held above must not be mechanical exercise and has to be applied with due application of mind by proper consideration of facts of each case. The appellant omitted to comply with the later part of the order passed on November 2, 1989 under Section 15(1) directing him to pay or deposit the future monthly rent and only on 14th August, 1991 deposited the arrears of rent. The application for condensation of delay was moved belatedly on 16th September, 1991 reiterating that the default in depositing the future rent every month after November, 1989 was neither intentional nor deliberate but due to lack of proper and timely advice of counsel. The Additional Rent Controller considered the facts and evidence on record and held that no circumstances were given by the tenant explaining that the non- deposit of arrears of rent was beyond the control of the appellant. The appellant made repeated defaults in deposit of rent which he was to make every month and thus the Controller held that he committed several defaults continuously and without any reason. The findings recorded by the Additional Rent Controller were duly considered by the Rent Control Tribunal. The learned judge reiterated the same and upheld the order striking out the defense under Section 15(7) of the Act. The only ground which has been agitated before me is that the appellant must not suffer due to the lack of timely advice of the counsel. The repeated defaults are not denied. The conduct of the appellant cannot be condoned as no tenant is entitled to use the premises free and if the deposit is not made within time, the consequences follow. The justification is clearly an after thought in the present facts. The law has been well settled in the case of M/s Jain Motor Car Co., Delhi (supra) that the Rent Controller certainly has the discretion to condone the delay but this discretion is to be exercised after due application of mind to the facts of each case. The Controller as well as the Rent Control Tribunal has considered the pleas of the appellant and in view of the admitted facts have come to the conclusion that the conduct of the appellant was either intentional or contumacious and the defense had been rightly struck out. The discretion so exercised is based on cogent grounds and does not call for interference in exercise of powers under Section 39 of the Act in the present Second Appeal.
(10) The appeal, as a consequence, is dismissed. There will be no order as to costs. The parties are directed to appear before the Rent Controller on 30th May, 1996 for further proceedings in accordance with law.