Civil Appeal No 1445 of 1979
Appeal by Special Leave from the Judgment and order dated 17th October 1978 of the Delhi High Court in Revision Petition No 689 of 1978
327 Mrs Shyamala Pappu P H Parekh Rain Karanjawala and Miss Vineeta Caprihan for the Appellant
BD Sharma for the Respondents
The following Judgment of the Court was delivered by KRISHNA IYER J A short but interesting point affecting the validity and propriety of an order under section 157 of the Delhi Rent Control Act 1958 for short the Act has been raised by counsel for the appellant
The decision of this question is of importance and we regard it as necessary to clarify the position so that the error committed by the trial judge may not be repeated
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 an extreme provision for striking out altogether the defence of the tenant which means that even if he has excellent pleas 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 157 reads thus If a tenant fails to make payment or deposit as required by this section the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application
 We must adopt a socially informed perspective while construing the provisions and then it will be plain that the Controller is armed with a facultative power
He may or not strike out the tenant s defence
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 defence is an exceptional step not a routine visitation of a punitive esteem following upon a mere failure to pay rent
First of all there must be a failure to pay rent which in the context indicates willful 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 defence
The last resort 328 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 teleological 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 under
J lying the power
There is no indication whatsoever in the Act to show that the exercise of the power of striking out of the defence under section 157 was imperative whenever the tenant failed to deposit or pay any amount as required by section 15
The provisions contained in section 157 of the Act are directory and not mandatory
It cannot be disputed that section 157 is a penal provision and gives to the Controller discretionary power in the matter of striking out of the defence 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 defence under section 157 is that the tenant is deprived of the protection given by section 14 and therefore the powers under section 157 of the Act must be exercised with due circumspection
It will be noted that section 157 of tho Act is not couched in mandatory language
It uses the word may 
The difference in the language of section 157 with that of section 135 of the repealed Act is significant and indicates that in the present Act there is a deliberate modification of law in favour of the tenant
In this connection it would be pertinent to refer to the observations of the Court in V K Verma vs Radhey Shyam1 In that case the Court compared section 135 of the Delhi Rent Control Act 1952 which laid down that on the failure of a tenant to deposit the arrears of rent within the prescribed time the  court shall order the defence against ejectment to be struck out with section 157 of the Delhi Rent Control Act 1958 which substitutes may  and observed 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 clearly deliberate modification in law in favour of the tenant
Under the old Act the Court had no option but to strike out the defence if the failure to pay or deposit the rent is proved under the new Act the Controller who takes the place of the Court has a discretion in the matter so that that in proper cases he may refuse to strike out the defence
 329 These observations leave no doubt that under section 157 of the Act it is in the liberal discretion of the Rent Controller whether or not to strike out the defence
We stress the need for the Court to be aware of the milieu before exercise of this extreme power because the present case is illustrative of its erroneous use
The facts in this case cry for intervention if one may say so
The appellant is a working woman who has to get to office and be there between 900 am to 500 pm
Naturally she has a difficulty in appearing in court for every hearing and so she prudently engaged an advocate to appear on her behalf and take proper steps to protect her interests
It is common ground that all the arrears of rent had been paid by her by cheque or in cash to her advocate
It also transpires that the amounts received by cheque or in cash by the advocate were not deposited in court or paid to the landlord
It is further seen that when the tenant found that the amounts were not paid to the landlord by her advocate she made a complaint to the Bar Council of Delhi and the matter is pending inquiry
From these circumstances we are inclined to conclude indeed that is the only reasonable conclusion in the circumstances that the tenant has not failed to pay and in any case the exercise of judicial discretion must persuade the court not to strike out the defence of the tenant but give her fresh opportunity to make deposit of the entire arrears due
In the present case the deposit has eventually been made in this Court when it directed such deposit to be made
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 innocent
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 defence 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 and 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 section 25B 330 An order striking out the defence is appealable under section 38
So this order is appealable
The reliance on section 25B8 to negative an appeal is inept because this is not an order under that special section but one under section 15
Moreover section 25B10preserves the procedure except to the extent contra indicated in section 25B Negation of the right of appeal follows from section 25B8 only if the order for recovery is made in accordance with the procedure specified in this section  ie 25B
Here the dispossession was not ordered under the special provision in section 25B but under section 15
Nor can the theory of merger salvage  the order because the legality of the eviction order depends on the legality of the order under section 157
Once that order is found illegal what follows upon that cannot be sustained
In the view we take of the effect of section 157 we allow the appeal in exercise of our jurisdiction under Article 136 and direct the case to go back to the Rent Controller
Having regard to the fact that the landlord has not been able to make out his case of bona fide requirement for long because of the pendency of these proceedings we direct the Rent Controller to dispose of the petition for eviction expeditiously and as far as possible within four months from today
Any further arrears if accrued will be paid under the directions of the Rent Controller on or before a date fixed by him
The order for eviction passed in this case after striking out the defence must fail 13 in view of our holding that the order striking out the defence itself is  illegal
Necessarily the orders of the Rent Controller and of their High Court must be and are hereby set aside
The parties will appear before the Rent Controller on 16th April 1980
There will be no order as to costs
SR Appeal allowed


Summary:
The appellant tenant a working woman engaged an advocate to appear on her behalf and take proper steps to protect her interests as she had a difficulty in appearing in Court for every hearing
She paid all the arrears of rent by cheque or in cash to her advocate who failed either to deposit the Court or to pay to the landlord
The Rent Controller refused to look into this and struck off her defence under section 157 of the Delhi Rent Control Act 1958
The appeal was dismissed as not maintainable in view of section 25B of tho Act
Hence the appeal by special leave
Allowing the appeal the Court
 HELD 1
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 an extreme provision for striking out together the defence of the tenant which means that even if he has excellent pleas 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 vested not a mandate imposed in Section 157 of the Delhi Rent Control Act
327 C D 2
If a socially informed perspective is adopted while construing the provision of Section 157 then it will be plain that the Controller is armed with facultative power
He may or may not strike out the tenant s defence
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 6 party s defence 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 failure to pay rent which in the content indicates willful failure deliberate default or volitional non performance
Secondly the Section provides no automatic weapon but prescribes a wise discretion inscribes no mechanical conse quence 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 defence
A last resort cannot be converted into tho first resort a punitive direction of court 326 cannot be used as a booby trap to get the tenant out
Once this teleological 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
327 F H 328 A B 3
The exercise of the power of striking out of the defence under section 157 is not imperative whenever the tenant fails to deposit or pay any amount as required by section 15
The provisions contained in section 157 of the Act are directory and not mandatory
It cannot be disputed that s157 is a penal provision and given to the Controller discretionary power in the matter of striking out of the defence 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 defence under s157 is that the tenant is deprived of the protection given by s14 and therefore the powers under s157 of the Act must be exercised with due circumspection
Section 157 of the Act is not couched in mandatory language
It uses the word may
The difference in the language of Section 157 with that of Section 135 of the repealed Act is significant and indicates that in the present Act there is a deliberate modification of law in favour of the tenant
Under Section 157 of the Act it is in the liberal discretion of the Rent Controller whether or not to strike out the defence
The Court should be aware of the milieu before exercise of this extreme power
328 B D 329 A B In the instant case 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 innocent
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 defence 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 and unfortunately the High Court did not closely look at this facet of the issue
329E H V K Varma vs Radhey Shyam AIR 1964 SC 1370 referred to
An order striking out the defence is appealable under s38
So this order is appealable
The reliance on section 25B8 to negative an appeal is inept because this is not an order under that special section but one under section 15
Moreover s25B10 preserves the procedure except to the extent contra indicated in s25B Negation of a right of appeal follows from s25B8 only if the order for recovery is made in accordance with the procedure specified in this Section  ie 25B
Here the dispossession was not ordered under the special provision in s25B but under s15
Nor can the theory of merger salvage the order because the legality of the eviction order depends on the legality of the order under s157
Once that order is found illegal what follows upon that cannot be sustained
330 A C