Banarsi Dass & Ors. vs Bindra Ban Gupta
1998 Latest Caselaw 397 Del

ORDER

Manmohan Sarin, J.

1. This second appeal by the appellants/tenants is against the order dated 13.7.1995, of the Rent Control Tribunal. The Tribunal accepted the appeal of the respondent/landlord and directed the defense of the appellants/tenants to be struck out under Section 15(7) of the Delhi Rent Control Act, hereinafter referred to as the "Act". The Rent Control Tribunal reached the conclusion that the appellants had flouted the orders of the Additional Rent Controller (A.R.C.). The appellants' action in preferring an application before the A.R.C. for extension of time to deposit and for payment in instalments, just two days before the expiry of the stipulated period was taken as manifestation of the intention of not complying with the orders. Non deposit even after the respondent had moved an application for striking out the defense, was taken as indicative of the deliberate, wilful and contumacious non-compliance with the order under Section 15(1) of the Act.

2. The relevant facts giving rise to the present appeal may be noted:-

(i) Appellants are the legal heirs of Shri Balwant Singh, original tenant of Shop No.53-B, Khan Market, New Delhi. A notice had been served on the appellants in August, 1988, claiming the rent to be Rs.1500/- per month. An eviction petition was filed on the ground specified under Section 14 (1)(a)(b) of the Act. Appellants had been depositing the rent under Section 27 of the Act @ Rs.450/-. On 17.10.1989, an order under Section 15(1) of the Act was passed, in terms of which the appellants were directed to pay arrears of rent w.e.f. 1.4.1988 @ Rs.1500/- per month, after adjusting the amount deposited. The learned A.R.C. in passing the order had taken note of the fact that the rent @ Rs.1500/- per month had been paid upto March, 1988 voluntarily. The appellants challenged the said order in appeal before the learned Rent Control Tribunal. The learned Rent Control Tribunal set aside the impugned order and remanded the case for fixation of interim standard rent before passing of order under Section 15(1) of the Act. The respondent challenged the said order, passed by the learned Rent Control Tribunal dated 21.3.1990 and this Court in SAO. NO.26/90, vide order dated 21.8.1991, set aside the order of the Rent Control Tribunal and restored the order dated 17.10.1989, under Section 15(1) of the Act, passed by the A.R.C. This Court directed that copy of the order dated 21.8.1991 be sent to the lower court for compliance.

3. It is pertinent to notice that the appellants in pursuance to the order dated 17.10.1989, had deposited the entire arrears of rent in terms thereof. However, the appellants upon the order dated 21.3.1990, being passed by the Rent Control Tribunal, applied for and withdrew the amount deposited by them in excess of Rs.450/- per month in terms of order dated 17.10.1989.

4. Following the order dated 21.8.1991, the appellants on 19.9.1991, moved an application before the A.R.C., stating that due to financial hardship, they are not in a position to clear the entire arrears of Rs.63,000/- and sought direction to be permitted to deposit Rs.20,000/- by the next date of hearing and Rs.10,000/- every three months, in addition to Rs.1500/- per month. Respondent on 29.11.1991, while the application for direction was pending, moved application under Section 15(7) of the Act, for striking out the defense of the appellants.

5. The learned A.R.C. after hearing the parties, vide order dated 30.1.1992, held that though the appellants were required to deposit the arrears of rent within one month from the date of the order of the High Court dated 21.8.1991, however, in view of the application moved prior to expiry of the period seeking extension and directions, he held that the appellants were ready and willing to clear the arrears of rent and interest of justice would be met if some short time was given to deposit the arrears of rent. He directed appellants to deposit by 6.2.1992, failing which the defense shall be struck out.

6. Respondent as challenged the order dated 30.1.1992, the learned A.R.C. and the learned Rent Control Tribunal reversed the same and allowed the appeal directing the defense of the appellants to be struck of.

7. Learned counsel for the appellant, Mr.Masud Mirza has submitted before me that the learned A.R.C. had exercised his discretion and jurisdiction in declining the request for striking out of defense and there was no ground to interfere by the learned Rent Control Tribunal. The learned Rent Control Tribunal had grievously erred in holding that there was non-compliance and breach of the orders of deposit of rent and more so in holding the same to be wilful, deliberate and contumacious.

8. Learned senior counsel for the respondent, Mr. V.K.Makhija, submitted that the learned Rent Control Tribunal in his reasoned judgment had discussed the entire matter thread bare. He submitted that the application for grant of extension of time and payment in instalments had been deliberately moved just two days before the expiry of the period i.e. on 19.9.1991. Learned counsel also submitted that the High Court having set aside the earlier order of the Rent Control Tribunal, the order dated 17.10.1989 stood revived and no fresh order was required. The appellants were bound to deposit within one month, which they failed to do so viz. by 21.9.1991. Not only this deposit was not even made after the respondent had moved the application under Section 15(7) of the Act, to show their bonafides. Deposit was made only after the A.R.C. had passed the order dated 30.1.1992. He submitted that the excuse of financial hardship was false and in any case not a ground to be considered. Mr. Makhija submitted that the A.R.C. had no jurisdiction to extend the time for payment.

9. Having heard the learned counsel for the parties and gone through the material on record, I find considerable merit in the submissions of the learned counsel for the appellant.

10. Let us notice the legal position with regard to the exercise of discretion under Section 15(7) of the Act. In Sh.Shanti Sarup Khullar Vs. Sh.O.P.Sood & Ors (C.M.(M).11/1996), I had occasion to summarize the same.

"The legal position on the question of Section 15(7) of the Act is well-settled. The Section confers upon the Rent Controller a discretion in the matter of striking out of defense. Small and marginal delays in deposit deserve to be condoned and ignored, especially when the order is substantially complied. Moreover, if there are extenuating and mitigating circumstances, coupled with plausible explanation for default, the defense may not be struck out and delay can be condoned. However, cases of contumacious and wilful default, gross negligence, reckless conduct and indifferent attitude to order of deposit, would render the defense liable to be struck out."

Reference may also be usefully made to the decision of this Court in K.C.Sharma Vs. Sant Ram Sharma (1996 R.L.R. (Note) 13, where it was held that delay in payment of rent of a month, was not intentional or deliberate and it was neither wilful nor contumacious as only stubborn refusal to submit to orders of Court amount to contumacy. Reference may also be made to Arian Afghan Vs. Cycle Equipment (1978 R.L.R. 427. In this case, the Division Bench of this Court while noticing that passing of an order under Section 15(7) of the Act was discretionary and not mandatory, observed that striking out the defense was not intended to operate as an engine of oppression against the tenant, who must be deprived of defense, the moment there is default. The Court observed that "What then are the circumstances, which would justify an order striking out defense or which would militate against such a conclusion? While it is not possible to lay down exhaustively the circumstances in which such an order may follow for that is what the Legislature left unsaid in its wisdom, where, however, the tenant has substantially complied with the order or there are circumstances of a mitigatory nature, it would not be proper to strike out the defense and deprive the tenant of the opportunity to defend and ejectment action."

11. Let us consider the facts of the present case in the light of the above judicial pronouncements and criteria.

The appellants had earlier in compliance with the order passed on 17.10.1989 had deposited the entire arrears of rent. It was only the intervening circumstances viz., their success before the learned Rent Control Tribunal, when the order dated 17.10.1989 was reversed that the appellant sought refund of the excess amount deposited and continued to deposit @ Rs.450/- per month as before. It, therefore, cannot be said that the attitude of the appellants was one of deliberate intentional non-compliance of the order of this Court for deposit of rent. The order dated 21.8.1991 set aside the Tribunal's order of 21.3.1990 and restored the order dated 17.10.1989. The implementation of the order dated 17.10.1989 requiring deposit within one month was not a physical possibility and the only reasonable and purposeful interpretation was the same being implemented within one month of the order of this Court on 21.8.1991. Before this period of one month had expired, the appellants sought direction for extension of time and offered to clear the entire amount of arrears by making payment in instalments, which were duly indicated. By the mere factum of such an application being filed, an inference of the appellants being unwilling and intending to defy the order, as drawn by the Tribunal was totally unwarranted. The further conclusion drawn by the Tribunal that the appellants were not perturbed by filing of the application under Section 15(7) of the Act and the non-deposit after the application having been moved, again cannot be taken as manifestation of wilful and contumacious conduct. The learned A.R.C. was seized with the request for extension of time to deposit. Admittedly the entire arrears which had earlier been deposited, have again been deposited on 6.2.1992 within the time granted. The entire deposit has been made without being unduly delayed. The discretion exercised by the learned A.R.C. in declining the request for striking out the defense was in accordance with law and in conformity with the judicial pronouncements as noted above. The Rent Control Tribunal was not justified in interfering with the discretion exercised by the A.R.C. The A.R.C. was well within his power and authority in declining the request for striking out of defense for delayed deposit by 6.2.1992.

12. In view of the foregoing discussion, the appeal of the appellants is allowed. The order of the learned Rent Control Tribunal dated 13.7.1995, is set aside and the application of respondent for striking out the defense of the appellants stands rejected.

Parties to appear before the Additional Rent Controller on 26th May, 1998.