Ekta Garments vs Swatantar Kaur And Anr.
1992 Latest Caselaw 36 Del

JUDGMENT

S.C. Jain, J.

(1) This petition under Article 227 of the Constitution of India has been filed by Ekta Garments, hereinafter referred to as the petitioner challenging the order of the Rent Control Tribunal dated 14.2.1990 whereby the order of the Addl. Rent Controller dated 13.12.89 striking out the defense of the petitioner was confirmed and the appeal against that order was dismessed.

(2) In brief, the facts of the case are that the Addl. Rent Controller passed an order under Section 15 of the Delhi Rent Control Act on 24.2.1987 directing the petitioner tenant to pay or deposit the arrears of rent w.e.f., 11.1.85 at the rate of Rs.240.00 per month. The arrears were to be paid within one month from the date of the order and future rent month by month by 15th of each succeeding month. The petitioner, as per the order of the court, paid a sum of Rs. 4080.00 as arrears of rent to the landlady but failed to pay or deposit rent for October, 1988 onwards in the court of the concerned Addl. Rent Controller necessitating the respondent landlady to file an application under Section 15(7) of the Delhi Rent Control Act for striking out the defense of the tenant petitioner herein.

(3) In his reply to that application the tenant pleaded that he has been tendering rent to the landlady regularly and paid Rs.4080.00 as arrears from 1.11.1985 to 9.3.1987 and also continued to pay future rent up to September, 1988. Thereafter the landlady avoided to accept the rent and to issue rent receipts and he sent the rent by money order but the landlady refused to accept the same and ultimately he deposited the rent in the court of Gurdeep Kumar, Addl. Rent Controller. He denied that there was any willful or contumacious default on his part.

(4) Both the courts below found that the application under Section 15 of the Delhi Rent Control Act was filed on 1.12.88 and the tenant, petitioner herein, was duly served with the notice of the application and appeared on 23.3.89. Neither the tenant filed any reply to the application nor deposited the rent of which he was alleged to be in default. It was on 15.5.89 that the tenant deposited the arrears of rent up to May, 1989 in another court of the Addl. Rent Controller under Section 27 of the Delhi Rent Control Act. Both the court came to the conclusion that the delay in deposit of rent on the part of the tenant and that too in another court of the Addl Rent Controller was not satisfactorily explained and according to them the default was willful and contumacious and in such circumstances the defense of the petitioner was struck off.

(5) Aggrieved, this petition has been filed. Section 15 of the Delhi Rent Control Act reads as under:    "IF a tenant fails to make payment or depostit 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".  

(6) It will be noted that Section 15 is not couched in mandatory language. It uses the word "may". It has been observed in Miss Santosh Mehta vs 0m Parkash-1980 Rajdhani Law Reporter 355    "THEharsh, drastic power of striking out defense is an exceptional step and being directory and discretionary should not be mechanically applied in all cases of default but should be applied where non-deposit is deliberate and willful. Only a recalciitrent, defiant or negligent tenant deserves this penalty. 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 defense. The last resort cannot be converted into the first resort, a punitive direction of court cannot be used as a body trap to get the tenant out. "  

(7) In this case the record shows and as also observed by both the courts below that in compliance of the order passed under Section 15 of the Act, the petitioner paid Rs. 4080.00 as arrears of rent from 1.11.1985 to 31.3.87 to the landlady directly and also continued to pay future rent regularly without any default up to September, 1988. It was from October, 1988 onwards that the courts below found that the tenant committed default in paying the rent as ordered and they found that the act of the tenant was willful, and contumacious.   

(8) In this regard, it is on the record and has also been found by the courts below that the rent for October, 1988 onwards was deposited by the tenant petitioner herein in the court of Shri Gurdeep Kumar Addl. Rent Controller on 15.5.89 under Section 27 of the Act. The explanation offered by the tenant is that after September, 1988, the landlady avoided to accept the rent from him directly and refused to issue rent receipts and thereafter he sent the rent by money order but the landlady refused to accept the same. When the rent was not accepted by the landlady sent to her by money order, the tenant depostited the same in the court of Addl. Rent Controller by filing an application under Section 27 of the Act. According to the explanation given by him rent stands fully deposited and that there was no intention what to say mala fide not to comply with the order passed by the Addl Rent Controller under Section 15 of the Delhi Rent Control Act. This explanation, I feel is satisfactory and that both the courts below have committed jurisdictional error in not accepting this explanation which is plausible and satisfactory. On the date when the order of striking out the defense was passed the petitioner was not in arrears of rent. This default cannot be said to be contumacious or willful. When the tenant complied with the order of the court by regularly paying the rent to the landlady till she issued receipt but when she refused to issue rent receipt, the tenant took the step to send the rent by money order but when she refused to accept the rent by money order, the tenant moved an application under Section 27 for deposit of the same. That application was marked to Shri Gurdeep Kumar, Addl. Rent Controller. Therefore, he deposited the rent up to date. From this act of the tenant it is apparent that he had no intention to defy or not to comply with the order of the Addl. Rent Controller. Rather it is apparent that the landlady avoided to accept the rent after September, 1988 just to create a ground for evicting the tenant for non compliance of the order under Section 15. I, therefore, accept this revision petition and set aside the impugned order by holding that both the courts below have committed jurisdictional error in striking out the defense of the petitioner tenant. The petitioner is allowed to defend the eviction petition on merits. The counsel for the parties are directed to appear before the Addl. Rent Controller on 11-2-1992