Delhi High Court
L.T. Thadani vs Yogeshwar Dayal on 27 October, 1970
Equivalent citations: 7(1971)DLT275
JUDGMENT Rajindar Sachar, J.
(1) This judgment of mine will dispose of two appeals under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called the Act) i.e. Appeal No. S.A.O. 107 of 1970 filed by the tenant and S.A.O. No. 149 of 1970 filed by the landlord.
(2) On 11-3-1969 the landlord filed an application against the tenant for eviction from the premises in dispute on the allegation that the rent had not been paid and was due since 1-5-1966. It was also pleaded that the notice of demand dated 1-1-1967 had been given and in spite of this the rent had not been paid. It was also pleaded that the notice had been served on the tenant. On 12-5-1969 the Rent Controller passed an order under Section 15(1) of the Act directing the tenant to deposit the rent at the rate of Rs. 144.59 per mensern with effect from 1-5-1966 within one month from the date of order. On 16th July, 1969, an application was moved under Section 15(7) of the Act by the landlord for striking out the defense of the tenant on the ground that he had not complied with the order passed under Section" 15(1) of the Act dated 12-5-1969. The tenant contested the application- His case was that he had applied for permission to deposit the amount on or about 9-6-1969 and that permission was granted to him on 14th July, 1969 and though necessary challans were obtained from the court on 15th July. 1969, there was some defect which had to be corrected and after getting the challans on , an amount of Rs. 5,639.00 was deposited in the State Bank of India on 18th July. 1969. The Rent Controller. however, by his order dated 2-8-1969 found that no proof was given by the tenant to show that any such amount had been deposited as alleged. It was specifically noted by the Additional Rent Controller that he had obtained a report from the Naib Nazar who had also made a report that no amount has been received from the Treasury. He, therefore, came to the conclusion that the tenant had not complied with the order passed under Section 16(1) of the Act. He thereupon struck out the defense & proceeded straightaway to pass an order of ejectment against the tenant and passed an order on the same date for the recovery of possession of the premises against the tenant.
(3) Aggrieved against this order, the tenant filed an appeal. No. 6- of 1969 against the order dated 2-8-1969 betore the Rent Control Tribunal. Similarly on 14th August. 1969, the tenant filed another appeal No. 659 of 1969 against the order dated 12th May, 1969 passed under Section 15(1) of the Act by Shri S.R. Goel Additional Rent Controller, Delhi. Appeal No. 659 of 1969 was obviously barred by time. Effort was made to satisfy the Rent Control Tribunal that the tenant had proper excuse not to file an appeal within the time- The Rent Control Tribunal, however, was not so satisfied and by its order of 8th June. 1970 held that the appeal hearing No. 659 of 1969 was barred by time and, therefore, dismissed it. No. appeal has been filed by the tenant against the order of the Rent Control Tribunal dismissing the appeal bearing No. 659 of 1969. The result is that the order of the Rent Controller dated 12th May, 1969 passed under Section 15(1) of the Act by which the tenant was directed to pay the rent at the rate of Rs. 144.59 per mensem within one month has become final.
(4) Mr. Bedi purported to re-open the said finding by contending that the condition precedent turn the passing of the order under Section 15(1) of the Act was the issuing of notice as provided by proviso (a) to Section 14 of the Act and as according to him no such notice had been issued the order under Section 15(1) of the Act was a nullity and could be ignored. The Rent Control Tribunal has even on merits found that this part of the argument had no validity and that notice was in fact served as required by the Act. That apart it is not contended that the Rent Controller had no jurisdiction to pass an order under Section 15(1) of the Act. If the contention of the learned counsel for the tenant is that the circumstances were not such that an order under Section 15(1) could have been passed that is a grievance regarding the merits of the decision and not as to the jurisdiction. Once an order had been passed under Section 15(1) of the Act by the Rent Controller, who admittedly had jurisdiction to pass it. his decision right or wrong could only be set aside in appeal and cannot be challenged by collateral means- The Rent Control Tribunal having found that the appeal against the order of 12th May. 1969 was barred by time, the order of the Rent Controller became final and it is futile for Mr. Bedi to re-open the said matter by resort to this argument. No appeal having been filed against the dismissal of appeal No. 659 of 1969 by the Rent Control Tribunal the order of 12th May. 1969 admittedly stood in the field.
(5) Appeal No. 642 of 1969 had been filed before the Rent Control Tribunal against the order of the Rent Controller, dt 2-8-1969 striking out the defense of the tenant under Section 15(7) of the Act. The Rent Control Tribunal found that no payment had been shown to have been made in compliance with Section 15(1) of the Act nor was any justification made out and, therefore, there was no reason to interfere with the order of the Rent Controller striking of the defense of the tenant. The Rent Control Tribunal has noted that even at the time of arguments before him he had given an opportunity to the tenant to produce the cheque or the amount deposited by him but none has been produced by him. Mr. Bedi. the learned counsel for the tenant had to concede that there was no proof of payment having been made as directed by the order under Section 15(1) of the Act. In that view it must be held that there was non-compliance with the order passed under Section 15(1) of the Act. No justification turn not depositing the amount as directed under Section 15(1) was given betore the courts below and none has been offered in this court also. In that view of the matter there is no escape from the conclusion that there had been non-compliance with Section 15(1) of the Act and no valid explanation having been given the Rent Controller and the Rent Control Tribunal were justified in passing an order under Section 15(7) of the Act striking out the defense of the tenant. The finding, therefore, of the courts below that the defense of the tenant should be struck out under Section 15(7) of the Act is, therefore, affirmed.
(6) Mr, Bedi, learned counsel for the tenant, appearing in appeal No. 107/70 mainly argued the matter which was argued also before the Rent Control Tribunal. The argument was that even if the order of striking out the defense against eviction of the tenant was up-held it was still open to the tenant to join in the proceedings to show that no valid notice under Section 106 of the Transfer of Property Act terminating the contractual tenancy had been issued, with the result that if he could show that the application for eviction filed by the landlord will have to be dismissed. The Rent Control Tribunal negatived this argument and held that once the defense of the tenant had been struck out it was not open to him to join the proceedings and to be allowed to plead and show that the notice terminating the tenancy had not been properly or validly issued. Grievance had also been made before the Rent Control Tribunal that the Rent Controller was not justified in straightaway passing an order for eviction even if the defense had been ordered to be struck out under Section 15(7) of the Act. This plea of the tenant was accepted by the Rent Control Tribunal who held that even after striking out the defense the court has to apply its judicial mind to determine if the landlord was entitled to the relief. He consequently partly allowed the appeal of the tenant. By this the order striking out the defense was affirmed and the case was remanded back to the trial court with a direction to decide the eviction application afresh after recording the evidence of the respondent-landlord in a way as if the case had not been defended by the appellant and then to dispose of the eviction application. S.A.O. 107/70 has been filed by the tenant against that part of the order by which the Rent Control Tribunal held that it was not open to the tenant after the defense has been struck out to join the proceedings and to show that no valid notice terminating the contractual tenancy had been issued. S-A.O. 149/70 has been filed by the landlord against that part of the order remanding the case to the trial court to decide the eviction application after recording the evidence.Mr. Bedi, learned counsel for the tenant in appeal No. 107/70 and also for the tenant in the other appeal has argued that a reading of Section 15(7) of the Act does not mean that if the defense is ordered to be struck out then the tenant cannot join the proceedings to take any defense outside the Act. His contention is that Section 14 provides for the ground on which eviction of the tenant can take place. When application is filed under Section 14 of the Act. the landlord has to prove that these grounds are satisfied and the tenant in his defense could controvert and show that none of the grounds is proved and, therefore, he is not liable to eviction. According to Mr. Bedi if the tenant does not comply with the order under Section 15(1) of the Act the result is that he makes himself liable to have his defense struck out, but that according to him is to be limited only to defenses provided in the Act. In other words according to Mr. Bedi the only result after an order has been passed under Section. 15(7) is that it is not open to the tenant to plead any defense against any of the grounds mentioned in Section 14 of the Act. But Mr. Bedi contends that as before a landlord can succeed in his eviction application he has to prove that a valid notice under Section 106 of the Transfer of Property Act terminating the tenancy had been issued it is open to the tenant to show that such a notice has not been validly issued with the result that it he does succeed he would still be able to avoid eviction. The learned counsel's contention in .short is that the words in Section 15(7) of the Act defense against eviction to be struck out should be read as defense against eviction under the Act to be struck out. In my view there is no force in this contention. Section 15(7) clearly says that if a tenant fails to make payment or to deposit as required by this Section, the Controller may order the defense against eviction to be struck out..... This language clearly envisages that the defense of the tenant which is to be struck out is the defense against eviction. There is no restrictive words suggesting that the defense against eviction which is to be struck out is limited to the defenses to the tenant provided under the Act. The clear meaning of the provision is that all the defenses which are open to the tenant to take will be struck out so that a tenant who has failed to comply with the order under Section 15(1) of the Act will be penalised by not being allowed to urge a defense against eviction. As the purpose is to penalise the tenant for not having carried out the order under Section 15(1) of the Act it does not stand to reason that only some of the defenses against eviction should be struck out while other defenses against eviction be kept intact. It is quite obvious that this provision has been made with a set purpose which is that the tenant should make payment of rent during the time the proceedings continue. It does not stand to logic that if the concession which the legislature wishes to give to the tenant of remaining in the premises during the proceedings was dependant on his complying with the directions under Section 15(1) of the Act it should have not sought to' penalise him by barring all defenses but should have kept some defenses still open to him. In my view the words 'defense against eviction' means 'all kinds of defenses which a tenant could take against eviction'. It is obvious that in an application for eviction filed against a tenant it would be open to him to plead that either his case is not covered by any of the provisions of Section 14 of the Act inasmuch as that he is not in arrears of rent or that he has not sub-let etc. and also that he is not liable to eviction because no valid notice terminating his contractual tenancy has been issued. These are all various defenses which a tenant may take. Therefore, when the tenant defaults in complying with the order under Section 15(1) of the Act and has his defense struck out under Section 15(7) of the Act the penalty cannot be limited so as not to include the defense against eviction namely of the landlord not having given a valid notice of termination. In this connection it is relevant to notice that a Division Bench of this court in Batto Mal v. Rameshwar Nuth (1970 R.C.R. 532) has held that notice under Section. 106 of the Transfer of Property Act is not a jurisdictional condition nor does the inherent jurisdiction of a court or the Rent Controller depend on the satisfaction of this condition. It has also held that it is open to the tenant to waive the requirement of this notice and that the failure of the tenant to raise an objection regarding the non-compliance with Section 106 of the Transfer of Property Act at an earlier stage of litigation would amount to a waiver of the plea by him. This authority, therefore, clearly lays down that the objection to the lack of notice under Section 106 of the Transfer of Property Act by the landlord has to be pleaded by the tenant as defense and if it is not pleaded,. it will be deemed to have been waived. If that be the situation as undoubtedly it is in view of the Division Bench judgment, then on what principle can it be said that only a limited defense under Section 15(7) of the Act is struck out. This particular defense based on Section 106 of the Transfer of Property Act is nevertheless a defense against eviction. The whole argument of Mr. Bedi is based on the assumption that a notice uder Section 106 of the Transfer of Property Act is a jurisdictional condition and is not a defense which can be taken by the tenant and, therefore, even if the defense is struck out the question of jurisdiction can be raised. But in my view there is no warrant for equating the service of notice under Section 106 of the Transfer of Property Act to a jurisdictional condition and, therefore, the argument that even if the defense is struck out the question of notice under Section 106 of the Transfer of Property Act should still be allowed to be urged as it relates to a question of jurisdiction, has no warrant and cannot possibly be sustained in view of the decision of the Division Bench of this Court.
(7) In the earlier Delhi and Ajmer Rent Control Act, 1952 (hereinafter to be called the Act of 1952) provision was also made for striking out the defense against ejectment under Section 13(5). In a case which is reported as Rala Ram v. Sultan Singh (1958 P.L.R. 540), the tenant amongst other pleas in his defense had taken the plea that the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure and because of principle of resjudicata and estoppel. He had denied the ground of ejectment. He having defaulted to carry out the direction of the court an order under Section 13(5) of the Act of 1952 striking out his defense was passed. It was sought to be urged by the tenant that in spite of the order under Section 13(5) having been paused against him it was open to him to urge other grounds as the striking out of the defense must be limited to a denial of the grounds upon which ejectment could be decreed as ordered by the court. It was also urged 'hat if the defendant tenant takes any ground of defense to the suit that is under the provision of Code of Civil Procedure or under the Court Fee Act such defenses cannot be struck out under Section 13(5) of the Act of 1952. Negativing this contention of the tenant Mehar Singh J. (as he then was) observed as under :- "ALLthat section 13(5) says is that in the contingency arising as stated therein and the Court passing an order for striking out the defense of the defendant-tenant, the defense as such is struck out and there is no justification for reading into the meaning of the sub-section that the defense may, in a given case, be only partially struck out. This would mean that while the defendant-tenant may be prohibited from resisting the claim for his ejectment by the plaintiff-landlord on the ground stated in Section 13 of the Act, he can still defeat the claim of the plaintiff-landlord for ejecting him on other grounds, which, the learned counsel for the applicant appears to think, cannot be struck out. I see no sound reason for so reading sub-section (5) of Section 13 of the Act. This ground fails."
(8) This matter also came up for decision before Deshpande J. in a case reported as Kishan Chand v. Ramesh Chander and others (1969 R.C.J. 839). (3) in that case also it was sought to be urged by the tenant that the plea of the lack of termination of tenancy by notice and the denial of title to the suit premises could stiil be raised by the tenant even after his defense has been struck out. His lordship referred with approval to Ralia Ram's case and observed as under:- "TOme. it appears that a natural meaning has to be placed on these words. The purpose of the provisions in section 15(7) is to penalise the tenant. The principle underlying the penalty is apparently the same as the one underlying Order Ii Rule 21. Civil Procedure Code. It is that the party who disobeys the order of the court is to be disabled from putting up any defense at all. In that sense, it would be correct to say that all possible defense by the party in defense is to be excluded." "THEeffect of an order u/s 15(7). therefore, is that on the one hand, the tenant is precluded from pleading and providing all grounds in defense, but the court is. on the other hand. not precluded from considering pure questions of law such as limitation and jurisdiction which do not require to be proved or pleaded by the tenant." "THEpleas which were raised by the tenant viz., the lack of notice and the lack of title in the landlord were both such that they could not be considered by the court unless they were first pleaded and then proved by the tenant. These pleas were, therefore, included in the ambit of the words 'defense against eviction' used in Section 15(7)."
(9) In D. R. Gellatly v. J. R. W. Cannon (A.T.R. 1953 Calcutta 409) a Division Bench of the Calcutta High Court also considered the similar provision of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, and negatived the contention that defense against ejectment that has to be struck of is to be limited to the grounds .mentioned in the Act. It was observed as under :- "ITwas further contended that even if his defense was liable to be struck out, it could not be the whole defense, nor could it be the whole defense against ejectment. But the defense against ejectment only has been struck out and not the whole defense. The contention was that what s. 14(4) contemplated was only defense against ejectment on the ground mentioned in S. 12(l)(i) of the Act and not also other defenses against ejectment. I am unable to give effect to that contention. The language of S, 14(4) is in no way qualified. The Policy of the section or, in deed the whole Act seems to be that the legislature is not minded to protect a tenant who will not even pay the monthly rent regularly. If the tenant on being directed to pay the currentrent month by month, does not do so. the Act quite clearly provides that he will by such conduct forfeit the special protection which the Act confers on tenants and will be relegated to his position under the general law. I do not find any justification in the language of Section 14(4) to limit the defense against ejectment contemplated by it to defense against ejectment only on the ground mentioned in Section 12(1)(i) of the Act."
(10) Mr. Bedi referred me to Ajit Kumar Sen Gupta v. Baijnath Somani and others, (65 Calcutta Weekly Notes 1110). In. my view, however that case is distinguishable. In that case Renupada Mukherjee, J. noticed the earlier case of D. R. Gellatly and pointed out that the Rent Control Act of 1950 did not make any provision for service of a notice of ejectment upon a tenant prior to the institution of the suit while the same was provided for in the 1956 Act. In the Rent Control Act of 1956 there was a provision in Section 13(6) which stated that no suit for recovery of possession should be filed unless the landlord has given to the tenant one month's notice. It was in that connection that his lordship held that even if the defense is struck out that does not debar the tenant from urging that no notice to quit which is a condition precedent to the institution of the suit has been served. It is obvious that in this case the requirement of notice was being taken as a condition precedent in the institution of the suit and was being equated as a jurisdictional requirement rather than as a defense against eviction; a ground which will have to be pleased by the tenant.
(11) The next case referred was Deo Chand Singh v. Shah Mohammad . In that case the tenant had been ordered to deposit the arrears of rent during the pendency of the proceedings and be having defaulted, his defense was ordered to be struck out. He, however, applied under Section 114 of the Transfer of Property Act seeking to persuade the court to exercise its discretion in his favor on the basis of the said provision. The question that was. therefore, to be decided was whether the tenant whose defense had been ordered to be struck out cannot be allowed to avoid eviction by filling an application seeking relief under Section 114 of the Transfer of Property Act. It was in this connection that Mukharji J. observed that the defenses against eviction under the Rent Act were to be limited to the defenses under the Act and cannot encampass the defense which was being phased on Section 114 of the Transfer of Property Act. Again it will be seen that the distinguishing feature in that case was that the relief that was being sought by asking for discretionary relief as provided under Section 114 of the Transfer of Property Act. There are of course some observations in this case which may lend some assistance to Mr. Bedi, but in fact run counter to the decision of this court and is also not born out by the provision. In this case also the Division Bench judgment of Calcutta in D. R. Gellatly's case was noticed but it was distinguished on two grounds. The first distinguishing ground was that in the Rent Act of 1956 the statute had provided that the court shall proceed with the hearing of the suit after the defense is struck out. It was presumed that this meant not only that the plaintiff will have to produce defense in support of his claim but it will permit the defendant to join and urge any plea as defense against eviction. In my view the only interpretation of this provision is that by simply striking out the defense, an application of the landlord is not automatically allowed but the plaintiff will have to make out his case before being given the relief.
(12) The second point of distinction that was relied upon in that case and on which much reliance was placed by Mr. Bedi. was that in the Rent Control Act of 1950 the words were 'shall order the defense against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim for ejectment' while the Rent Control Act of 1956 did not have the last words namely 'the tenant to be placed in the same position as if he had not defended the claim of ejectment. In my view this distinction is of no substance. The restriction as used by the words in subsequent portion that 'tenant will be placed in the position as if he had not defended the claim for ejectment' did not in any manner restrict or limit the potency of the first part of the provision. This later part which was to be found in the Rent Act of 1950 possibly has been deleted as being superfluous as the words 'defense against ejectement to be struck, could only mean that all defenses taken by the tenant are to be wiped out, with the result that the position will be as if the tenant had not defended the claim for ejectment. It may also be seen in this authority that his lordship was inclined to take the view "the relief against forfeiture for non-payment of rent claimed under Section 114 of the Transfer of Property Act was not so much as lessee's defense as relief by the court in appropriate cases and that it is not a right of defense in the proceedings that must always be granted to a tenant". It is not a defense as of right but it is a discretion with the court. This authority, therefore, proceeded on the basis that it was not a case of defense against eviction but rather a relief against forfciture and invoking the discretionary power of the court. Obviously this care is clearly distinguishable from the present case.
(13) Another case on which reliance was placed by Mr. Bedi was Shrimati Krishnahai v. Shrimati Laxmibai (1970 R.C.R. 810). (8) In that case the landlord had filed a suit for ejectment but the court had found that he failed to prove any of the grounds mentioned in Section 12 of the Madhya Pradesh Accommodation Control Act, 1961. The landlord filed an appeal before the lower appellant court and urged that as a tenant had failed to deposit the rent as required by Section 13 of the Act her defense should have been struck out by the trial court, though the lower appellats court found this contention of the landlord to be correct yet it nevertheless came to the conclusion that the burden of establishing that ground under Section 12 of the Act had not been discharged by the landlord and, therefore, dismissed the landlord's appeal. In the High Court it was urged by the landlord that as the defense of the tenant had been struck out no burden lay on the landlord to prove that any of the grounds under the Rent Act existed and that ejectment should have been ordered as a matter of course. Bhave J., who referred the matter to the Division Bench being of the opinion that the effect of striking out of the defense would preclude the tenant from putting forth any special fact on his behalf to controvert the evidence, found that there was another decision of a learned single judge in which observations had been made that the effect of striking out of the defense would be to take the case outside the Rent Act and to convert it into one under the Transfer of Property Act. He therefore, referred the two questions to the Division Bench which are as follows:-
(1)Whether the effect of striking out the defense under Section 13(6) of the M. P. Accommodation Control Act, 1961, is to take out the case from the ambit of that Act and to render that suit as one governed by the Transfer of Property Act alone ? Or (2) Whether the effect is only to preclude the tenant from adducing positive evidence to show that none of the grounds are made out but the burden of making out a prima facie case of the existence of the grounds still remaining on the plaintiff ?
(14) The Division Bench held that the landlord in order to succeed will have to prove that the contractual tenancy had been validly determined under the Transfer of Property Act and that there is no relationship of landlord and tenant or that the least one of the grounds enumerated under Section 12 of the Madhya Pradesh Accommodation Control Act, 1961 existed. Their lordships observed as under:- "TWOthings are abundantly clear from the language of sub-section (6). The first is that the defense against eviction, which is struck out is the defense against eviction of the tenant under Section 12 of the Act. Such striking out of the defense does not debar the tenant from taking any defense to which he is entitled under the Transfer of Property Act. Notwithstanding such striking out of the defense he can still show, for instance, that there is no relationship of landlord and tenant between him said the plaintiff, or that the lease was not determined as required by Section 111 of the Transfer of Property Act so that during the subsistence of the lease he cannot be ejected."
(15) They consequently held that the effect of the striking of the defense is that the landlord will still have to establish that he is entitled to a decree for eviction (a) under the general law and (b) under the M. P. Accommodation Control Act: and in spite of his defense having; been struck of under Section 13(6) the tenant could still contest the suit as regards (a). Mr. Bedi relied on this judgment to contend that this is an authority for the proposition that the defense against eviction which is to be struck out is only the defense under the Act and that it is still open to the tenant to show that the landlord has not determined his tenancy as provided by the Transfer of Property Act.
(16) It is true that this authority does make some observations which support the contention of Mr. Bedi. But with very great respect, the reasoning does not appeal to me. Firstly there is no discussion as to what the words 'defense against eviction to be struck out exactly mean. Of course it is mentioned in the judgment that the effect of striking out the defense is that the suit proceeds ex-parte so far as it relates to Section 12 but in another part of the judgment in para 25 it is stated that it is wrong to think that the grounds enumerated in Section 12 are the grounds of defense; indeed, they are grounds to constitute a cause of action. If, therefore, the grounds mentioned under Section 12 are no grounds of defense then on what principle are they to be struck out as only defense against eviction can be struck out. The only justification for not permitting the tenant to plead or to take his defense as provided in Section 12 (because of the provision of the statute which provides for the striking of the defense against eviction) is that it includes all defenses whether under the Rent Act or under the General Law. With respect it seems to me that an unnecessary distinction has been drawn in this authority between the defenses based on the provisions of the Rent Act and the defenses based otherwise than on the provision of the Rent Act. It is quite clear that when an application for eviction is brought against a tenant he is expected and entitled to take all defenses to defeat the application for eviction whether the grounds being that, (a) he is not entitled to be evicted on any of the grounds mentioned in the Rent Act or (b) that the landlord is precluded from seeking to evict him on grounds of lack service of notice terminating his tenancy and even on the ground of res judicata or estoppel. These are all defenses against eviction which a tenant is entitled to take. Once. therefore, he has to be penalised and an order is passed by which defense against eviction is to be struck out, there can be no justification to read in the provision the word 'under the Act'. With respect it seems to me that this authority when it purports to read under the act is reading something in the provision which is not to be found in the statute. It is well settled that the courts cannot supply any assumed lacuna and when the meaning of the words is clear there is no jurisdiction in the courts to assum that the legislature has omitted to mention the words which it wishes to read there. The legislature has clearly directed that if an order is passed under Section 15(7) of the Act, the result is that the court will order defenses against eviction to be struck out. It is not possible to limit or to restrict its meaning by reading after the words defenses against eviction the words under the Act. With respect, therefore, if this authority purports to lay down that it is laying down principles which are contrary to the decisions of Mehar Singh J. and Deshpande J. I am in respectful agreement with the decisions of Mehar Singh J. and Deshpande J. and would therefore, hold that the Rent Conrol Tribunal rightly held that it was not open to the tenant to plead that in spite of the order striking out his defense against eviction it was open to him to challenge the service, validity or sufficiency of the notice terminating his tenancy. The judgment of the Rent Control Tribunal, therefore, on this part is affirmed and the appeal of the tenant S.A.O. 107/70 therefore, is dismissed.
(17) In S.A.O. No. 149 of 1970 filed by the landlord the only ground urged by Mr. R. M Lal, learned counsel for the landlord, was that in view of the defense against eviction having been struck of it was open to the Rent Controller straightaway to pass a decree for eviction. But in my view, this is not a correct reading of provision of Section 15(7) of the Act which provides that after striking out the defense against eviction the court shall proceed with the hearing of the application. This obviously means that after the defense of the tenant had been struck out the court has still to be satisfied that the ground has been made out under the Rent Act before a landlord could get relief. In the case decided by Deshpande J., and also all other cases it has been held that striking out of the defense of the tenant does not mean that an automatic order in favor of the landlord has to be passed. Before an order in favor of the landlord is to be passed, he will have to satisfy the court that the grounds mentioned in Section 14 of the Act are complied with and that he is entitled to ask for a decree. In my view, therefore, the order of the Rent Control Tribunal remanding the case back to the trial court with direction to decide the eviction application afresh after recording the evidence does not suffer from any infirmity and is up-held.
(18) The result is that the appeal of the tenant i.e., S.A.O. 107/70 and the appeal of athe landlord i.e., S.A.O. 149/70 are dismissed, but there will be no order as to costs. The parties through their counsel are directed to appear before the trial court on 3rd of November, 1970.