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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