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CASE NO.: Appeal (civil)  6973-6974 of 2004

PETITIONER: M/s. Aero Traders Pvt. Ltd.

RESPONDENT: Ravinder Kumar Suri

DATE OF JUDGMENT: 27/10/2004

BENCH: CJI R. C. Lahoti, G. P. Mathur & P.P. Naolekar

JUDGMENT: J U D G M E N T

(Arising out of S.L.P.(Civil) Nos. 2725-2726 of 2004)

G. P. MATHUR, J.

1.      Leave granted.

2.      These appeals, by special leave, have been preferred against the  judgment and order dated 9.9.2003 of Delhi High Court by which the writ  petition filed by respondent no.1, Ravinder Kumar Suri, under Article 227 of  the Constitution was allowed, the order dated 22.5.2001 of the Additional  Rent Control Tribunal was set aside and the order dated 19.3.2001 of the  Rent Controller was restored by which the defence of the appellant was  struck off.  By the same order the writ petition filed by the tenant-appellant  was dismissed.    

3.      The appellant is a tenant of a commercial premises situate in Karol  Bagh, New Delhi on a rental of Rs.30/- per month.  The landlord, Ravinder  Kumar Suri, filed a petition for eviction of the appellant under Section  14(1)(a) of Delhi Rent Control Act, 1958 (for short "the Act") on the  ground, inter alia, that the appellant was in arrears of rent.   The Rent  Controller passed an order under Section 15(1) of the Act on 20.12.1999  directing the appellant to deposit or pay to the landlord within one month the  entire arrears of rent w.e.f. 1.6.1996 and to continue to pay the future rent by  15th of each succeeding month.   The landlord (respondent no.1)  moved an  application under Section 15(7) of the Act for striking off the defence of the  appellant (tenant) on the ground that he did not comply with the order.   The  appellant claimed that he had complied with the order and had sent the rent  by cheques but the landlord did not encash the same.   The Rent Controller  held that the appellant had neither paid the rent to the landlord nor had  deposited the amount in court.   Accordingly, he passed an order on  19.3.2001 by which the application filed by the landlord was allowed and  the defence of the appellant was struck off.    The appellant preferred an  appeal before the Rent Control Tribunal which was disposed of by the  judgment and order dated 22.5.2001 with a direction to the appellant to  deposit the whole arrears of rent along with penalty of the same amount  within 30 days, failing which his defence shall stand struck off as directed  by the Rent Controller. The landlord challenged the order passed by the Rent  Control Tribunal by filing a writ petition under Article 227 of the  Constitution before the Delhi High Court.  The appellant also filed a petition  for quashing of certain findings which were recorded against him by the  Rent Controller.   The High Court allowed the writ petition filed by the  landlord, set aside the order passed by the Rent Control Tribunal and  restored that of the Rent Controller.   The writ petition filed by the appellant  was dismissed.

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4.      In order to establish his case, the appellant placed on record a letter  dated 3.1.2000 sent by its counsel to the landlord, wherein it was mentioned  that the rent at the rate of Rs.30/- per month w.e.f. 1.6.1996 to 31.12.1999  amounting to Rs.930/- was being sent by cheque.  The landlord seriously  disputed the fact that any cheque was sent to him.   The appellant did not  lead any evidence whatsoever to establish  that any cheque for Rs.930/- was  in fact sent to the landlord on 3.1.2000.   Even otherwise, the arrears of rent  which were required to be sent were Rs.1260/- and not Rs.930/-.   The  appellant also placed on record another letter dated 30.6.2000, wherein it  was mentioned that rent for the period 1.2.2000 to 31.12.2000 was being  sent through cheque.   This was also disputed by the landlord.   The  appellant did not lead any evidence to establish the fact that the amount as  claimed in this letter was actually sent to the landlord.   The direction in the  order 20.12.1999 was that the appellant shall either pay or deposit the future  rent by 15th of every succeeding month.   Even assuming the version of the  appellant to be correct, he failed to either pay or deposit the rents for the  months of January to May 2000 by the 15th  day of each succeeding month.    On the aforesaid facts, the Rent Controller held that the order dated  20.12.1999 had not been complied with.   He also noted that even by the  time he had passed the order under Section 15(7) of the Act, the appellant  was in arrears of rent and had not paid or deposited the rent w.e.f. 1.6.1996.    He accordingly held that it was a fit case where the defence of the appellant  should be struck off.   The Rent Control Tribunal, in the appeal preferred by  the appellant, confirmed the findings recorded by the Rent Controller  regarding non-payment of rent and in fact held that the intention of the  appellant was not bona fide and rather he acted in a mischievous manner and  had tried to show that he had sent the rent by way of cheques.   However, he  held that Section 15(7) of the Act confers a discretion whether to strike off  the defence or not and since this discretion had not been exercised in  accordance with the basic principles of equity, justice and good conscience,  the order passed by the Rent Controller required modification.   He  accordingly directed the appellant to deposit the whole arrears of rent along  with penalty of same amount within 30 days and if the same was done, the  order of the Rent Controller shall stand set aside.  The High Court in the writ  petition preferred by the landlord held that the appellant had shown  a willful  and contumacious default and had set up a palpably false plea about  compliance of the order and consequently he was not entitled to any  indulgence from the Court.   The High Court accordingly set aside the order  of the Rent Control Tribunal and restored that of the Rent Controller.   

5.      The provisions of Section 15(7) of the Act have been examined by a  Three Judge Bench of this Court  in Jain Motor Car Co. v. Swayam Prabha  Jain AIR 1996 SC 2951, where, after examining the earlier decisions  rendered in Hem Chand v. Delhi Cloth & General Mills Co. Ltd. AIR 1977  SC 1986, Shyamcharan Sharma v. Dharamdas AIR 1980 SC 587, Ram  Murty v. Bhola Nath AIR 1984 SC 1392 and Kamla Devi v. Vasdev   1995  (1) SCC 356, it was held that the section confers a discretionary power on  the Rent Controller to strike out the defence of the tenant and the said power  should not be exercised mechanically without any application of mind to the  facts of the case.  

6.      The question which, therefore, requires consideration is whether the  appellant has made out any ground for exercising discretion in his favour of  not striking out his defence.  According to Black’s Law Dictionary "judicial  discretion" means the exercise of judgment by a judge or court based on  what is fair under the circumstances and guided by the rules and principles  of law; a court’s power to act or not act when a litigant is not entitled to  demand the act as a matter of right.   The word "discretion" connotes  necessarily an act of a judicial character, and, as used with reference to  discretion exercised judicially, it implies the absence of a hard-and-fast rule,  and it requires an actual exercise of judgment and a consideration of the  facts and circumstances which are necessary to make a sound, fair and just  determination, and a knowledge of the facts upon which the discretion may  properly operate. (See 27 Corpus Juris Secundum page 289).  When it is said  that something is to be done within the discretion of the authorities that

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something is to be done according to the rules of reason and justice and not  according to private opinion; according to law and not humour.   It only  gives certain latitude or liberty accorded by statute or rules, to a judge as  distinguished from a ministerial or administrative official, in adjudicating on  matters brought before him.   

7.      In the present case, the finding of the Rent Controller and also of the  Rent Control Tribunal is that the appellant set up a totally false plea of his  having sent the rent through cheques to the landlord.   Apart from pleading  that he had sent the amount through cheques, he pleaded no other fact which  could be taken into consideration by the Rent Controller for exercising  discretion in his favour.   It may be noted that the premises are commercial  and are situate in Karol Bagh, which is a prime business area of Delhi and  the rent is a paltry sum of Rs.30/- per month.  But the appellant did not pay  even this small amount of rent, which is virtually a pittance, and has  remained in arrears for a long period of time.  There is absolutely no ground  on which any discretion could be exercised in his favour. The High Court  was, therefore, perfectly justified in setting aside the order passed by the  Rent Control Tribunal and restoring that of the Rent Controller.  

8.      For the reasons discussed above, the appeals are dismissed with costs,  which we quantify at Rs.10,000/-.