pdy Uo.% r^ m THE HON'BLE fflGH COURT OF CHHATHSGARH ATBBLASPUR ^ -(€-~^ "l fW.P. (Art. 227) No.......L'?.^.^......./2010) PETTHONER PLANTIFF VERSUS RESPONDENDS DEFENDANTS ^•^^ ^^€--""" ^^y ,y^y Smt. Sarla Maheshwari W/o. Late Nand Kishor IVtaheshwari, Aged about 44 Years, R/o. 45 Vikas Nagar Laklioli Rajnandgaon (C.G.) 1. Brij Kishor Gupta S/o. ELrishna Murari . Gupta; aged about 69 •years; Proprietor'Ms. Brij Kishoi\ Gupta., Kailash Naear Rajnandgaon (C.G.) 2. Prateek Maheshwari S/o. Late v:^.% [^^^4l^, ">>"~^. ^l :y. ^ Nand Kishor Maheshwari; aged about 20 years; R/o. Ganj Line near Bharat Mata Chowk Rajnandgaon (C.G.) WRTT PETTHON UNDERARTICLE 227 OF THE CONSTmJTION^)F mDIA ^ HIGH COURT OF CHHATTISGARH : BtLASPUfe Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastavas^. PETITiONER RESPONDENTS WRIT PETITION (227} N0.1846/2010 Smt. Sarta Maheshwari Versus Brij Kishor Gupta and anottier WRIT PETITION UNDERARTICLE 227 OF THE CONSTtTUTION OF INDIA Present: - Shri R.NJha, counsel for the petitioner. Shri Sumesh Bajaj, counsel for respondeht No<2. ORALORDER (Passed on 9th day of April, 2010) By this petition, under Articte 227 ofthe constitution of India, petitioner has calied in question the legatity and propriety of order dated 23/11/09 (Annexure P- 1) passed by learned District Judge in Civil Suit No.14-A/03 whereby petltioner's application under Section 13 Sub-Section 6 of M.P. and C.G. Accommodation Control Act, 1961 (hereinafter called the Act of 1961') for striking outdefence of respondent / defendant has been rejected. 2. Petitioner filed suit for eviction against respondent No.1. During th» pendency ofthe suit, petitioner filed an application purporting to be under Sedaon 13 Sub-Section 6 ofthe Act of 1961 stafing thatthe respondent / defendant failed to pay or deposit the rent as required under the law and therefore his defence may be struck off. In reply against the said application.respondent No.1/ defendant contested by submitting that the entire rent uptill 2009 has been deposited. ^ 3. By Impugned order, the leamed District Judge has rejected the application by recording that the entire rent uptill 2009 is paid. Though latar on, an application under Section 152 of CPC being flted, the leamed District Judge, corrected the impugned order dated 23/11/09 vide another order dated 9/12/09. in this petition, challenge is confined to the iegalify and validity of order dated 23/11/09. 4. Submission of learned counsel for the petitioner is that though ftie to^rned Court below found that the entire rent was not depo^ited in time, the defence was not struck off. It is furtfier submitted that once default ts made, provisions of Section 3 Sub-Section 6 ofthe Act of 1961 are attracted and the Court is teft with no discretion but to reject the application. By not striking ovt defence, even though there was delay on the part of respondent No.1 in dejwsiting the annual rent. it is submitted, the Court below has failed to exercise jurisdictton vested in it by law. 5. From the contente of the application filed by the petittoner, reply fited by respondent No.1 as alsoorder passed by learned Court below on 23/11/09 and order dated 9/12/09, it is revealed thatthe respondent No.1 paid Rs.1,10,00(y- in respect of 4 years and the Court below has considered it as payment of rent uptilt December 2004. Rs.22,000/- was deposited in the yeSiT 2006 and another Rs.22,000/- was deposited in the year 2007 on 27/12/2006 and 13/08Q007 respectively. On 9/11/09 an amount of Rs.44,000/- was deposited. tn tts order dated 9/12/09 leamed Court below has observed that respondent No.lAenant has deposited rent upto December 2008 till the date of filing appljcation and till the passing of order, year 2009 had not come to an end, question of non- payment of rent for the year 2009 would not arise for consideration. ^ the passing of order, year 2009 had not conae to an end, question of non" payment of rent for the year 2009 would not arise for consideration. 6. Taking into consideration that respondent No.1 deposited the entire rent up to Oecember 2008 and the actjon for non-payment of rent for the year 2CK)9 would not arise until completion of the year ieamed Court below exercteed hisii discretion in not striking out the defence. In the opinion of this Coyrt, the exercise of such discretion is based on relevant considerations and Is not so outrageous as to warrant interference by this Court under Ariicte 227 of the Constitution oflndia. Submission of tearned counsel for the peUtioner that once there is delay in payment of rent, the Court has no discretion but to strike out the, defence and the Court has no discretionary power cannot b@ accepted. Reading of provision contained in Section 13 (6) of the Act of 1961 cleariy shows ttiat ttie Court is invested with a discretion to strike off or not to strike of the defence. In the case of Kamla Devi vs. Vasdev (1985) 1 Supreme Court Cases 356, SC dealing with similar prowsion contained in Deihi RentControl Act, held" a "17. We are unabte to uphold Uiis contentton. In our ^ew, tt^ps? not obligatory for the Rent Controlter to stritee out the defenee of the tenant under Section 15(7) of the Delhi Act, if the tenant fails to make payment or deposit as direGted by an order passed under Section 15(1). The language of sub-section (7) of Section 15 is that "the Controller may oreler the defence against eviction : to be stmck out". That cleariy means, the Contpetter, in a given . case, may not pass such an order. It must depend upon ttie facts of the case and the discretion of ttie Contorolter whether r such a drastic order should or should not be passed" Reliance placed on the decision of the Supreme Court in the case of R.C. Tamrakar and another Vs. Nidl Lekha, 2002 (2) JU 69 (Supreme Couri) is ^^;s^, g ^..9i.,.. misplaced. In that case, it was held that on account of fajlure to pay rent in accordance with provisions of the law, protection against decree of eviction on the ground of arrears of rent is not available. It is not the ratio of that decision that where there is failure / delay in making payment / deposit ofejent, ne discretion is left writh the Court, except to strike out the defence undep ali circumstences. Consequenfly, 1 do not find any ground warranting interference of this Court under Article 227 of the Constitution of India. Writ petitton i& therefore summarily dismissed without notice to the other partles. Sd/- Manindra Mohan Shrivastava Judge Dffpli