Nirmal Kapoor vs Sushila Devi Jain And Ors.
1986 Latest Caselaw 66 Del

JUDGMENT

G.C. Jain, J.

(1) This second appeal is directed against the order of the Rent Control Tribunal dated March 18, 1985.

(2) On April 14, 1980 Dr. P.L. Johar brought a petition for eviction of the appellant Smt. Nirmal Kapoor from the premises in dispute, i.e. a portion of property No. T-22 Green Park, New Delhi on the allegations that the said premises had been let out to the appellant on a monthly rent of Rs. 175.00 on December 1, 1970 and a sum of Rs. 2875 was due towards rent for the period ending March, 1980 which the tenant had neither paid nor tendered within two months of the. service of the notice of demand.

(3) The tenant admitted the relationship of landlord and tenant between the parties. The agreed rate of rent was also not disputed. She, however, pleaded that only a sum of Rs. 2.505.00 was due towards rent up to March 31,1980.

(4) On October 13, 1980 the Additional Rent Controller made an order under Section 15(1) of the Delhi Rent Control Act, 1958 (for short 'the Act') directing the tenant to deposit a sum of Rs. 3,225.00 towards rent up to May 1980 and further arrears from 1st June, 1980 to the end of the month previous to that in which deposit is made at the rate of Rs. 175.00 per month within one month from the order and also to deposit future rent month by month by the 15th of each following month. Appeal filed against the said order was dismissed by the Tribunal on March 26, 1981. Second appeal was also dismissed by this court on July 16, 1981.

(5) On February 9, 1981 the landlord Dr. Johar made an application under Section 15(7) of the Act for striking out the deface of the tenant on the ground that he had not complied with the order under Section 15(1) of the Act. The tenant averred that the rent had been deposited in terms of the orders dated November 24, 1980 made by the Tribunal. The Additional Controller, held that though the order under Section 15(1) had not been complied with but the default was due to bona fide mistake and the defense was not liable to be struck out and consequently dismissed the said application on April 27,1981.

(6) Dr. P.L. Johar, during the pendency of the petition sold the property in favor of Smt. Sushila Devi Jain and Smt. Indu Jain respondents herein, by means of a sale deed dated June 24, 1983. The vendees moved an application under Order 22 Rule 10, Code of Civil Procedure for being substituted in place of Dr. Johar which was allowed by the Addl. Controller on February 20,1984.

(7) On September 13, 1984 the present respondents, who had been substituted in place of Dr. Johar, moved another application under Section 15(7) of the Act for striking out the defense of the tenant. It was alleged that the tenant had not deposited the rent after July 13, 1983 and that the defaults committed by her were willful and contumacious.

(8) The tenant resisted the application. It was averred that the present respondent could not get the benefit of the order made under Section 15(1) as their locus standi to get themselves substituted under Order 22 Rule 10, Code of Civil Procedure, was under challenge before the Supreme Court. It was further averred that the appellant had moved an application for setting aside the order under Section 15(1) of the Act which was dismissed on February 20, 1984. The appeals before the Tribunal and the High Court had also been dismissed and she was now taking steps to file Special Leave petition before the Supreme Court. It was next pleaded that she was depositing up to date rent subject to the above pleas. She also averred that the present respondents and their predecessor-in-interest Dr. Johar had forcibly and tortuously obtained possession of a portion of the demised premises between April 22, 1983 and May 24, 1983 during her ambience and had constructed a room there they had demolished the bath room, latrine and a tank through which she was getting supply of water and she was, therefore, entitled to suspend the rent.

(9) Learned Additional Controller by his order dated February 14, 1985, holding that the tenant had committed default in compliance of the order under Section 15(1) of the Act and that the defaults were contumacious and willful, struck out her defense. Appeal filed against the said order was dismissed by the Tribunal in liming on March 18, 1985. Hence, this second appeal.

(10) SUB-SECTION (7) of Section 15 of the Act reads as under : "15(7)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".

(11) These provisions empower the Controller to strike out the defense in case of non-compliance of the order under Section 15(1) of the Act. Striking out the defense, however, is not a mandatory requirement. It is clear from the word 'may' used in the section. It cannot be denied that the order striking out the defense is a harsh order. It deprives the tenant of his right to defend the case against him. The power to strikeout the defense, therefore, has to be exercised sparingly and in extreme cases of contumacious and deliberate default and when the court discerns the mood of defiance or gross negleck) (See Santosh Mehta v. 0m Prakash, 1980 (1) Rcj, 697.)

(12) The landladies sought the order of striking out the defense of the tenant on the allegation that the tenant had not deposited rent after July 13, 1983 and had thus committed default of the order made under Section 15(1). Admittedly the rent for July, 1983 to September 1984 (except for September 1983) was deposited on December 6, 1984. Thus there was a delay of 15 months to about 2 months in the deposit of the rent for these months. These default however, did not oblige the Addl. Controller to strike out the defense automatically. He was bound to consider the representation or explanation made by the tenant in this behalf. If on examination of the explanation it was found that the default was willful or contumacious only then the defense could be struck out.

(13) In the present case, the explanation rendered by the tenant is that during her absence from Delhi between April 22, 1983 and May 24, 1983 \, the landladies forcibly and tortuously obtained possession of a portion of the demised premises and constructed a room there. They also demolished bath room, latrine and a water tank through which she was getting water supply. She lodged a report with the police in this behalf. On account of this tortuous act she was advised by her counsel that she was entitled to suspend the rent and consequently she did not deposit the rent for the said months. It was deposited when so advised by the counsel later on. In this court her counsel also filed an affidavit staling that he had given the advice that she was entitled to suspend the rent in these circumitances. Later on she was advised to deposit the rent subject to her plea of suspension of rent.

(14) Neither of the courts below recorded any finding regarding the alleged tortuous deprivation. Learned Addl. Controller simply observed that the tenant could not unilaterally-suspend the rent. She did not make any application to the court for about a year and half after the alleged deprivation and in these circumstances, the defaults were willful and contumacious. The Tribunal also held that the rent could not be suspended unilaterally. The tenant was not justified in taking the law in her hands and therefore the learned Addl. Controller was justified in striking out the defense.

(15) It is correct that the tenant could not unilaterally suspend the deposit of rent and if she does so, she commits breach of the order under Section 15(1) of the Act. (See B.P.N. Shrivastava v. Poori Bai, . However, this breach alone would not lead to the conclusion that the default willful or contumacious. The Addl Controller and the Tribunal fell in a error in coming to the conclusion that because of this breach the default was willful or contumacious. They were required to examine the circumstances due to which default occurred. The tenant, as is clear from her affidavit and the affidavit of her counsel, did not deposit the rent for the said months because of the advise given to her by her counsel. Default committed on the advice given to her by her counsel cannot be termed willful or contumacious. The default was due to bona fide belief, based on the advice of the counsel, that she was entitled to suspend the rent and need not deposit the rent in compliance of the order under Section 15(1) of the Act. It may be mentioned that prior to July, 1983 the tenant duly complied the order. "

(16) Learned counsel for the respondents pointed out that the rent for September 1983 was deposited on December 6, 1984 and for October and November, 1984 was deposited only on January 21, 1985therentfor December, 1984 and January, 1985 was deposited on February 8, 1985 and March 2, 1985 respectively and rent for February, 1985 was deposited on April 9, 1985. The tenant, thus, had committed deliberate default in the deposit of the rent for these months.

(17) Explanation given by the tenant is that the challans for July, 1983 October and November 1984 had been misplaced. New challans Were got prepared on December 7, 1984. The tenant, however, on receipt of a telephonic message on December 6, 1984 that her mother was seriously ill, left for Barabanki and returned on February 4, 1985 when she was informed that the amounts for July 1983, October and November, 1984 had been deposited by the counsel from his own pocket. As regards rent for December, 1984, January and February, 1985 it was explained that the amount had been given to the clerk of the counsel who spent it on the illness of his mother and deposited the same as and when the money became available to him. This explanation is supported by her affidavit. Keeping in view the facts that she had deposited about Rs. 2500.00 on December 6. 1984 it was not expected of the tenant not to deposit the rent for July, 1983 on that very date intentionally. Similarly, there could not be any intention in not depositing the rent from October, 1984 to February, 1985 in time. The explanation appears to be satisfactory.

(18) Keeping in view all the facts and circumstances in my opinion the defaults committed by the tenant were not willful or contumacious. Her "defense was not liable to be struck out.

(19) I, consequently, accept the appeal, set aside the impugned order and instead dismiss the application for striking out the defense of the tenant Parties are liable to bear their own costs.