Dina Nath (D) By Lrs. vs Subhash Chand Saini

2. The matter earlier was heard by a two Judge Bench of this Court 2 and there was a unanimity on the principles of law that the power to strike out the defence vested in the Rent Controller under Section 15(7) of the Delhi Rent Control Act, 1958 (hereinafter being referred to as the “Act, 1958”) is discretionary and not mandatory and it is imperative that every violation in implementation of the directions of the Rent Controller under Section 15(1) of the Act, 1958 ipso facto leave to the striking out of the defence of the tenant and it ought to be exercised only when the tenant deliberately, contumaciously or negligently fails to deposit the rent due from him but there was a divergence of opinion on the facts of the instant case and for that reason the matter has been placed before us.

3. The facts in brief which may be relevant for the present purpose and culled out from the record are that the appellants­tenants rented a shop bearing no. 1445­A, Dariba Kalan, Delhi on a monthly rent of Rs. 66/­. The respondents­plaintiffs jointly own the above­mentioned demised premises. The rent for the shop is to be paid to respondent no. 1, who holds a power of attorney, to collect rent on behalf of the respondents. In November, 2007, the respondents (landlord) filed an eviction petition under Section 14(1)(a)(b)(c) and (j) of the Act, 1958 seeking decree for recovery of possession of the rented premises on the 3 manifold reasons. We are not dilating on the grounds of eviction of the demised premises at this stage since that is the subject matter to be examined by the Rent Controller where the eviction petition is pending adjudication.

4. The appellants filed their written statement on 7 th February, 2008 disputing the allegations made by the respondents in the eviction petition. Since one of the ground on which eviction was prayed for by the respondents was non­payment of rent in which the order under Section 15(1) of the Act, 1958 came to be passed on 21 st April, 2008. It will be appropriate to quote the order dated 21 st April, 2008 ad infra:­ “RENT CONTROL TRIBUNAL ­ DELHI E­931/07 21.04.08 Arguments heard u/s 15(1) of DRC Act. The rate of rent and the relationship is not in dispute between the parties though the petitioner claims the arrears w.e.f. 01.01.2007 and the respondent states that he has paid rent upto October, 2007.

6. On account of non­compliance of the order dated 21 st April, 2008 as alleged, the respondents filed an application under Section 15(7) of the Act, 1958 on 28th April, 2009 praying for striking out the defence of the appellants.

7. The appellants filed their written response to the aforesaid application and it was specifically stated in paragraphs 3 & 4 that along with the arrears due from 1st November, 2007, in addition the advance rent of ten months was deposited and on adjustment of the advance rent deposited on 21st April, 2008, the monthly rent which was deposited at a later point of time practically paid in advance and there was no default committed of the order dated 21 st April, 2008. 5

13. One of the significant modification is that while under Section 13(5) of the Act, 1952, the application by the landlord had to be “for an order on the tenant­defendant to deposit month by month rent at a rate at which it was last paid” in all suits for ejectments. Section 15 of the Act, 1958 makes a distinction between cases where the recovery of possession is sought on, the grounds of arrears of rent having been left unpaid within two months of the service of notice of demand and other ejectment proceedings. In the first class of cases, the Controller can make an order for payment of rent at the rate at which it was last 8 paid while in the other class of cases the Controller may make an order for payment at the rate at which it was legally recoverable.

8. Taking note of the rival claims of the parties, the Rent Controller vide its Order dated 14th September, 2009 allowed the application filed by the respondents­landlord under Section 15(7) of the Act, 1958 and struck off the defence of the appellants in the pending evicting petition. Dissatisfied with the order passed by the Rent Controller, the appellants approached the Rent Control Tribunal. By an order dated 24th May, 2010, the Rent Control Tribunal dismissed the appeal and being dissatisfied, the appellants further approached the High Court invoking Article 227 of the Constitution of India and that came to be dismissed vide judgment and order dated 10 th May, 2011 which is under challenge before us in the instant civil appeal.

31. In our opinion, the decision of the Rent Controller and confirmed by the Single Judge of the High Court of Delhi under the impugned judgment 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 respondents­landlord has not been exercised judiciously and with circumspection and for the aforesaid reasons, the impugned judgment is unsustainable and deserves to be set aside.

33. In the result, the appeal succeeds and the impugned judgment of the High Court of Delhi dated 10 th May, 2011 confirming order of the 20 Rent Controller/Tribunal are hereby set aside with the observations supra. No costs.

34. Pending application(s), if any, stand disposed of.