Full Judgment Text
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PETITIONER:
SANTOSH MEHTA
Vs.
RESPONDENT:
OM PRAKASH AND ANR.
DATE OF JUDGMENT02/04/1980
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
SEN, A.P. (J)
CITATION:
1980 AIR 1664 1980 SCR (3) 325
1980 SCC (3) 610
CITATOR INFO :
R 1983 SC1010 (15)
RF 1984 SC1392 (9)
ACT:
Delhi Rent Control Act, 1958, Sections 15(7) scope of
Striking of defence for non-payment of arrears of rent,
Court’s duty.
Delhi Rent Control Act, 1958-Appeal against order
striking out defence-Correct section applicable is section
38 and not section 25B, of the Delhi Rent Control Act.
HEADNOTE:
The appellant tenant, a working woman engaged an
advocate to appear on her behalf and take proper steps to
protect her interests, as she had a difficulty in appearing
in Court for every hearing. She paid all the arrears of rent
by cheque or in cash to her advocate who failed either to
deposit the Court or to pay to the landlord. The Rent
Controller refused to look into this and struck off her
defence under section 15(7) of the Delhi Rent Control Act,
1958. The appeal was dismissed as not maintainable in view
of section 25B of tho Act. Hence the appeal by special
leave.
Allowing the appeal, the Court.
^
HELD :1. Rent Control laws are basically designed to
protect tenants because scarcity of accommodation is a
nightmare for those who own none and, if evicted, will be
helpless. Even so, the legislature has provided some grounds
for eviction, and the Delhi law contains an extreme
provision for striking out together the defence of the
tenant which means that even if he has excellent pleas to
negative the landlord’s claim the Court will not hear him.
Obviously, this is a harsh extreme and having regard to the
benign scheme of the legislation this drastic power is meant
for use in grossly recalcitrant situations where a tenant is
guilty of disregard in paying rent. That is why a discretion
vested, not a mandate imposed in Section 15(7) of the Delhi
Rent Control Act. [327 C-D]
2. If a socially informed perspective is adopted while
construing the provision of Section 15(7), then it will be
plain that the Controller is armed with facultative power.
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He may, or may not strike out the tenant’s defence. A
Judicial discretion has built-in-self-restraint, has the
scheme of the statute in mind, cannot ignore the conspectus
of circumstances which are present in the case and has the
brooding thought playing on the power, that, in a court,
striking out a 6 party’s defence is an exceptional step, not
a routine visitation of a punitive extreme following upon a
mere failure to pay rent. First of all, there must be
failure to pay rent which, in the content, indicates willful
failure, deliberate default or volitional non-performance.
Secondly, the Section provides no automatic weapon but
prescribes a wise discretion, inscribes no mechanical conse-
quence 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 defence. A last
resort cannot be converted into tho first resort a punitive
direction of court
326
cannot be used as a booby trap to get the tenant out. Once
this teleological interpretation dawns, the mist of
misconception about matter-of-course invocation of the power
to strike out will vanish. Farewell to the realities of a
given case is playing truant with the duty underlying the
power. [327 F-H, 328 A-B]
3. The exercise of the power of striking out of the
defence under section 15(7) is not imperative whenever the
tenant fails to deposit or pay any amount as required by
section 15. The provisions contained in s. 15(7) of the Act
are directory and not mandatory. It cannot be disputed that
s.15(7) is a penal provision and given to the Controller
discretionary power in the matter of striking out of the
defence, and that in appropriate cases, the Controller may
refuse to visit upon the tenant the penalty of non-payment
or non-deposit. The effect of striking out of the defence
under s.15(7) is that the tenant is deprived of the
protection given by s.14 and, therefore, the powers under
s.15(7) of the Act must be exercised with due
circumspection. Section 15(7) of the Act is not couched in
mandatory language. It uses the word "may". The difference
in the language of Section 15(7) with that of Section 13(5)
of the repealed Act is significant and indicates that in the
present Act there is a deliberate modification of law in
favour of the tenant. Under Section 15(7) of the Act, it is
in the liberal discretion of the Rent Controller, whether or
not to strike out the defence. The Court should be aware of
the milieu before exercise of this extreme power. [328 B-D,
329 A-B]
In the instant case, the tenant did all she could by
paying to the advocate the sums regularly but the latter
betrayed her and perhaps helped himself. To trust one’s
advocate is not to sin deliberately. She was innocent but
her advocate was innocent. No party can be punished because
her advocate behaved unprofessionally. The Rent Controller
should have controlled himself by a plain look at the
eloquent facts and not let down the helpless woman who in
good faith believed in the basic ethic of a noble
profession. She did not fail to pay or deposit and, in any
view, no case for punitive exercise of discretion has been
made out. The conclusion necessarily follows that the
striking out of the defence was not legal and the appellant
should have been given an opportunity to contest the claim
of the landlord for her eviction. A sensitized judicial
appreciation was missing and unfortunately, the High Court
did not closely look at this facet of the issue. [329E-H]
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V. K. Varma v. Radhey Shyam, A.I.R. 1964 S.C. 1370,
referred to.
4. An order striking out the defence is appealable
under s.38. So this order is appealable. The reliance on s.
25B(8) to negative an appeal is inept because this is not an
order under that special section but one under s. 15.
Moreover, s.25B(10) preserves the procedure except to the
extent contra-indicated in s.25B. Negation of a right of
appeal follows from s.25B(8) only if the order for recovery
is made ’in accordance with the procedure specified in this
Section’ (i.e. 25B). Here the dispossession was not ordered
under the special provision in s.25B but under s.15. Nor can
the theory of merger salvage the order because the legality
of the eviction order depends on the legality of the order
under s.15(7). Once that order is found illegal what follows
upon that cannot be sustained. [330 A-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1445 of
1979.
Appeal by Special Leave from the Judgment and order
dated 17th October, 1978 of the Delhi High Court in Revision
Petition No. 689 of 1978.
327
Mrs. Shyamala Pappu, P. H. Parekh, Rain Karanjawala and
Miss Vineeta Caprihan for the Appellant.
B.D. Sharma, for the Respondents.
The following Judgment of the Court was delivered by
KRISHNA IYER, J.-A short but interesting point
affecting the validity and propriety of an order under s.
15(7) of the Delhi Rent Control Act, 1958 (for short, the
Act), has been raised by counsel for the appellant. The
decision of this question is of importance and we regard it
as necessary to clarify the position so that the error
committed by the trial judge may not be repeated.
Rent Control laws are basically designed to protect
tenants because scarcity of accommodation is a nightmare for
those who own none and if evicted, will be helpless. Even
so, the legislature has provided some grounds for eviction,
and the Delhi law contains an extreme provision for striking
out altogether the defence of the tenant which means that
even if he has excellent pleas to negative the landlord’s
claim the court will not hear him. Obviously, this is a
harsh extreme and having regard to the benign scheme of the
legislation this drastic power is meant for use in grossly
recalcitrant situations where a tenant is guilty of
disregard in paying rent. That is why a discretion is
vested, not a mandate imposed. Section 15(7) reads thus:
"If a tenant fails to make payment or deposit as
required by this section, the Controller may order the
defence against eviction to be struck out and proceed
with the hearing of the application."
We must adopt a socially informed perspective while
construing the provisions and then it will be plain that the
Controller is armed with a facultative power. He may, or not
strike out the tenant’s defence. A judicial discretion has
built-in-self-restraint, has the scheme of the statute in
mind, cannot ignore the conspectus of circumstances which
are present in the case and has the brooding thought playing
on the power that, in a court, striking out a party’s
defence is an exceptional step, not a routine visitation of
a punitive esteem following upon a mere failure to pay rent.
First of all, there must be a failure to pay rent which, in
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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 defence. The last resort
328
cannot be converted into the first resort; a punitive
direction of court cannot be used as a booby trap to get the
tenant out. Once this teleological interpretation dawns, the
mist of misconception about matter of-course invocation of
the power to strike out will vanish. Farewell to the
realities of a given case is playing truant with the duty
under. J lying the power.
There is no indication whatsoever in the Act to show
that the exercise of the power of striking out of the
defence under s. 15(7) was imperative whenever the tenant
failed to deposit or pay any amount as required by s. 15.
The provisions contained in s. 15(7) of the Act are
directory and not mandatory. It cannot be disputed that s.
15(7) is a penal provision and gives to the Controller
discretionary power in the matter of striking out of the
defence, and that in appropriate cases, the Controller may
refuse to visit upon the tenant the penalty of non payment
or non-deposit. The effect of striking out of the defence
under s. 15(7) is that the tenant is deprived of the
protection given by s. 14 and, therefore, the powers under
s. 15(7) of the Act must be exercised with due
circumspection.
It will be noted that s. 15(7) of tho Act is not
couched in mandatory language. It uses the word ’may’. The
difference in the language of s. 15(7) with that of s. 13(5)
of the repealed Act is significant and indicates that in the
present Act there is a deliberate modification of law in
favour of the tenant. In this connection, it would be
pertinent to refer to the observations of the Court in V. K
Verma v. Radhey Shyam.(1) In that case, the Court compared
s. 13(5) of the Delhi Rent Control Act, 1952 which laid down
that on the failure of a tenant to deposit the arrears of
rent within the prescribed time, "the ’ court shall order
the defence against ejectment to be struck out." with s.
15(7) of the Delhi Rent Control Act, 1958 which substitutes
’may’ and observed:
"The change of the words from "The Court shall
order the defence against ejectment to be struck out"
to the words "the Controller may order the defence
against eviction to be struck out" is clearly
deliberate modification in law in favour of the tenant.
Under the old Act the Court had no option but to strike
out the defence if the failure to pay or deposit the
rent is proved; under the new Act the Controller who
takes the place of the Court has a discretion in the
matter, so that that in proper cases he may refuse to
strike out the defence."
329
These observations leave no doubt that under s. 15(7) of the
Act, it is in the liberal discretion of the Rent Controller
whether or not to strike out the defence.
We stress the need for the Court to be aware of the
milieu before exercise of this extreme power because the
present case is illustrative of its erroneous use.
The facts in this case cry for intervention, if one may
say so. The appellant is a working woman who has to get to
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office and be there between 9.00 a.m. to 5.00 p.m.
Naturally, she has a difficulty in appearing in court for
every hearing and so she prudently engaged an advocate to
appear on her behalf and take proper steps to protect her
interests. It is common ground that all the arrears of rent
had been paid by her by cheque or in cash to her advocate.
It also transpires that the amounts received by cheque or in
cash by the advocate were not deposited in court or paid to
the landlord. It is further seen that when the tenant found
that the amounts were not paid to the landlord by her
advocate, she made a complaint to the Bar Council of Delhi
and the matter is pending inquiry. From these circumstances,
we are inclined to conclude-indeed, that is the only
reasonable conclusion in the circumstances-that the tenant
has not failed to pay and, in any case, the exercise of
judicial discretion must persuade the court not to strike
out the defence of the tenant but give her fresh opportunity
to make deposit of the entire arrears due. In the present
case the deposit has eventually been made in this Court when
it directed such deposit to be made.
The tenant did all she could by paying to the advocate
the sums regularly but the latter betrayed her and perhaps
helped himself. To trust one’s advocate is not to sin
deliberately. She was innocent but her advocate was
innocent. No party can be punished because her advocate
behaved unprofessionally. The Rent Controller should have
controlled himself by a plain look at the eloquent facts and
not let down the helpless woman who in good faith believed
in the basic ethic of a noble profession. She did not fail
to pay or deposit and, in any view, no case for punitive
exercise of discretion has been made out. The conclusion
necessarily follows that the striking out of the defence was
not legal and the appellant should have been given an
opportunity to contest the claim of the landlord for her
eviction. A sensitized judicial appreciation was missing
and, unfortunately, the High Court did not closely look at
this facet of the issue. On the other hand, the appeal was
dismissed as not maintainable in view of s. 25B.
330
An order striking out the defence is appealable under
s. 38. So this order is appealable. The reliance on s.
25B(8) to negative an appeal is inept because this is not an
order under that special section but one under s. 15.
Moreover, s. 25B(10)preserves the procedure except to the
extent contra-indicated in s. 25B. Negation of the right of
appeal follows from s. 25B(8) only if the order for recovery
is made ’in accordance with the procedure specified in this
section’ (i.e. 25B). Here the dispossession was not ordered
under the special provision in s. 25B but under s. 15. Nor
can the theory of merger salvage ’ the order because the
legality of the eviction order depends on the legality of
the order under s. 15(7). Once that order is found illegal
what follows upon that cannot be sustained.
In the view we take of the effect of s. 15(7) we allow
the appeal in exercise of our jurisdiction under Article 136
and direct the case to go back to the Rent Controller.
Having regard to the fact that the landlord has not been
able to make out his case of bona fide requirement for long
because of the pendency of these proceedings, we direct the
Rent Controller to dispose of the petition for eviction
expeditiously and, as far, as possible, within four months
from today.
Any further arrears, if accrued, will be paid under the
directions of the Rent Controller on or before a date fixed
by him. The order for eviction passed in this case after
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striking out the defence must fail 13: in view of our
holding that the order striking out the defence itself is ,
illegal. Necessarily, the orders of the Rent Controller and
of their High Court must be and are hereby set aside. The
parties will appear before the Rent Controller on 16th
April, 1980. There will be no order as to costs.
S.R. Appeal allowed.
331