M/S. Metal Fabricators vs Sh. Tej Pal Singh
2014 Latest Caselaw 4335 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CM(M) No.835/2014

%                                                     10th September, 2014

M/S. METAL FABRICATORS                                        ......Petitioner
                   Through:              Mr. D.K. Singh, Advocate with Mr.
                                         Pankaj Chauhan, Advocate.



                           VERSUS

SH. TEJ PAL SINGH                                           ...... Respondent

Through: Mr. Paramjeet Singh, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.14998/2014 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

+ C.M.(M) No.835/2014 and C.M. No.14996/2014 (stay)

2. This petition under Article 227 of the Constitution of India

impugns the order of the trial court dated 05.6.2014 which has struck off the

defence of the petitioner/defendant/tenant for non-complying with the order

of payment of interim rent/user charges dated 13.4.2010.

3. A reading of the impugned order from paras 4 to 8 shows that

petitioner was guilty of repeated defaults and repeated delays in not paying

the admitted rent. Surely, the tenants who stay in the premises must pay the

admitted rent because after all it cannot be expected that the landlord can

survive without receiving even the admitted rent of the premises. Tenants

may have difficulty as expressed on behalf of the petitioner/tenant in

depositing the rent, but that cannot take away the fact of the legal

requirement of paying the admitted rent and difficulties do not legally justify

non-payment of rent regularly.

4. The relevant aspects have been noted by the trial court in paras

4 to 8 in the impugned order dated 05.6.2014, and which read as under:-

"4. It is observed that the present application was filed in February 2013. Copy of the application was supplied to the defendant on 03.6.13 before the court. Thereafter, the matter was listed for arguments on the application. On 11.9.13 the defendant did not appear. On 28.10.13 Ld. Counsel for the defendant sought adjournment on the ground that defendant was not contacting him. On 03.01.14 Ld. Counsel for defendant appeared and submitted that the defendant has not given him any instruction and with permission of the court the vakalatnama was withdrawn by the Ld. Counsel for defendant. On 13.9.14 reply to the present application was filed. On 22.3.14 the defendant was absent. On 13.5.14 again adjournment was sought on behalf of the defendant.

5. On 26.5.14 arguments on this application were heard. The defendant relied upon certain bank deposit receipts. However, it was

observed that from the receipts it was not clear for which period the rent was deposited. Opportunity was granted to the defendant to show how much amount he has deposited and for what period.

6. On 02.6.14 an application u/s 151 CPC seeking permission to deposit the remaining arrears of rent was moved on behalf of the defendant. On 03.6.14 the application was kept pending for today i.e. date fixed.

7. Ld. Counsel for defendant submitted that the arrears of rent are Rs 60,000/-. Time is sought to deposit the same.

8. The plaintiff has submitted that no further time should be granted to the defendant to deposit the rent. The initial order dated 13.4.10 directed the defendant to deposit the arrears of rent within one month. The same was not done. Thereafter the defendant has not been depositing the rent regularly."

5. A reading of the impugned order shows that even at the stage of

arguments on the application the arrears of rent were not deposited and only

time was sought. A reading of the impugned order also shows that repeated

adjournments were taken on behalf of the petitioner/tenant to delay the

disposal of the application for striking of the defence.

6. Powers under Article 227 of the Constitution of India are

discretionary powers and are meant to be exercised in extraordinary

situations. Powers under Article 227 of the Constitution of India are not to

be exercised once a tenant refuses to regularly pay even the admitted rent of

the premises.

7. I may note that the petitioner/tenant in any case will have a right to

cross-examine the witnesses of the plaintiff/landlord as also participate in

the final arguments.

8. Dismissed.

SEPTEMBER 10, 2014                                 VALMIKI J. MEHTA, J
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