Holding

Section 15(7) provides discretionary power to the Rent Controller to strike out a defence, and such an order is appealable under Section 38; the order in this case was illegal and set aside.

Summary

The appellant, a working woman tenant, paid all rent arrears to her advocate, who failed to deposit the amounts with the court or pay the landlord. The Delhi Rent Controller, relying on Section 15(7) of the Delhi Rent Control Act, 1958, struck out the tenant's defence and proceeded with the eviction. The High Court dismissed the appeal as not maintainable under Section 2SB. The Supreme Court held that Section 15(7) confers a discretionary, not mandatory, power to strike out a defence and that such an order is appealable under Section 38, not barred by Section 2SB or 25B. Consequently, the order striking out the defence was declared illegal, the appellate orders were set aside, and the matter was remitted to the Rent Controller to dispose of the eviction petition within a stipulated period.

Issues considered

Whether an order striking out a tenant's defence under Section 15(7) of the Delhi Rent Control Act, 1958 is appealable notwithstanding Section 2SB.
Whether Section 15(7) imposes a mandatory duty to strike out the defence or merely confers discretionary power.
Whether the tenant's failure to deposit rent, attributable to the advocate's misconduct, justifies the exercise of the power under Section 15(7).

Legislation cited

Constitution of Indias. 136
Delhi Rent Control Act, 1958s. 13(5), s. 14, s. 15(7), s. 25B(10), s. 25B(8), s. 2SB, s. 38

Subjects

Delhi Rent Control ActSection 15(7)striking out defencetenant protectiondiscretionary powerappealabilityrent arrearsadvocate misconduct

Judgment

325

SANTOSH MEHTA
. v.
OM PRAKASH AND ANR.
April 2, 1980 .
[V. R. KRISHNA IYER AND A. P. SEN, JJ.]
•
Delhi Rent Control Act, 1958, Sections 15(7) scope of-Striking of] defence
for non-payment of arreaTs ·of rent, Court's duty.
Delhi Rent Control Act, 195S~Appeal against order .striking out defence-
Correct section applicable is section 38 and not section 2SB,. of tlie Delhi Rl!flt
Control Act. C
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 arreats of rent by
cheque or in cash to her advocate who failed either to deposit in the Court or
to pay to the landlord. Tho Rent Controller refused to look into this and struck
off her defence onder section 15(7) of the Delhi Rent Control Act, 1958. The I>
appeal was dismissed as noi maintainable in view of section 2SB of the Act.
Hence the appeal by special leave.
Allowing the appeal, the Court.
HELD : I. Rent Control laws are basically designed to protect tenants be-
( cause scarcity of accommodation is a nightmare for those who own none and,
if evicted, will bo helpless. Even so, the legislature has provided some groonds E
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 clahn the Court will not hear hhn. Obviously,
this is a harsh extreme and having regard to the benign scheme of the legisla•
tion 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 impos~ in Section IS (7) of the Delhi Rent Control Act.
!327 C-Dl
2. If a socially informed perspective is adopted while construing the provi-
sions of Section 15(7), then it will be plain that the Controller is armed with a
facultative power. He may, or may not strike out the tenant's defence. A judi4
cial · discretion has built-in-self-restraint, has the scheme of the statute in mind,.
cannot ignoie 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 G
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 context, indicates \\'ilful failure, deliberate
default or volitional non-performance. Second!}', the Section provides no auto-
matic weapon but prescribes a wise discretion, inscribes no mechanical conse-
qneru:e but invests a power to overcome intransigence. Thus, if a tenant fails
or ..efu.es to pay or deposit rent and the court discerns a mood of defiance or B
gross neglect, the tenant may forfeit his right to be heard in defence. A 'last
resori cannot be converted into the first resort a punitive direction of court
326 SUPREME COURT REPORTS [1980] 3 S.C.R.

A cannot be used as a booby trap to get tho tenant out. Once this telool<>Sical
interpretation dawns, the mist of misconception about matter-of-course invoca-
tion of the p<>wer 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-BJ

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 amol!Ut
B as required by section 15. The provisions contained in s. 15(7) of the Aet are
directory and not mandatory. It cannot be disputed that s.15(7) is a penal provi-
sion and given to the C.Ontroller discretionary power in the matter of striking out
of the defence, and that in appropriate cases, the Contfoller may refuse, to visit
upon the tenant the penalty of non-payment or non-deposit. The effect of Bili!<
ing out of the defence under s.15(7) is that the tenant is deprived of !be pro!e<(-
tion given by s,14 and, therefore, the powers under s.15(7) of the Act must be
.. ~
C:: 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 !be 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-BJ
D
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
tmst one9S advocate is not to sin deliberately. She was innocent but her advo-
cate was noeent. No party can be punisheq because her advocate behaved
unprofessionally. The Rent Cotttroller should have controlled himself by a plain
look at the eloquent faets and not let down the helpless woman who in good
E faith believed in the basic ethic of a noble profession. She did not fall to pay or
deposit and, in any view, no case for punitive exercise of discretion bas been
made out. The conclusion necessarily follows that the striking out of the defence
was not legal and the nppellant should have been given an opportunity to contest
the claim of the landlord for her eviction. A sensiti7.ed jll<licial appreciation was
missing and unfortunately, the High Court did not closely look at this facet of
the issue. (329 E-H]

• V. K. Varma v. Rm/hey Shyam, A.LR. 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 ;,, inept bccautle
this is not a.n order under that special section but one under .s. IS. Morover,
o.25B(l0) preserves the procedure except to the extent contra-indicated in 1.25B.
Negation of a right of appeal follows from s.25B(8) only if the order for reco-
G nry is made 'in accordance with the procednre specified in this Section' (i.e. 25B).
Here the dispossession was not ordered under tho 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 lega!iiy of the order under s.15(7). Once
that order is found illegal what follows upon that cannot be sustained. [330 A.c:J

Ov!L 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.
SANTOSH MEHTA v. OM PRAKASH AND ANR. (Krishna Iyer, /.) 327

Mrs. Shyamala Pappu, P. H. Parekh, Rain Karanjawala and Miu
Vineeta Caprihan for the Appellant.
B. D. Shqrma, for the Respondents.
The following Judgment of the Court was delivered by
KRISHNA IYER, J.-A short but interesting point affecting the
val\dity and propriety of an order under s. 15(7) of the Delhi Rent B
Control Act, 1958 (for short, the Act), has been raised bycounsel 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 com-
mitted by the trial judge may not be repeated.
.__._. Rent Control laws are basically designed to protect tenants because c
scarcity of accommodation is a nightmare for those who own i;ione 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 re- D
gard to the benign scheme of the legislation this drastic power is meant
for use in grossly recalcitrant situations where a tenant is guilty of dis-
regard in paying rent. That is why a discretion is vested, not a man-
date imposed; Section 15(7) reads thus :
"If a tenant fails to make payment or deposit as re-
B
"" quired by this section, the Controller inay order the de-
fence against eviction to be struck out and proceed 1wit!>
the hearing of the application."
_ We must adopt a socially informed perspective wlii!e construing
the provisions and then it will be plain that the Controller is armed
\ with a facultative power. H'e may, or not strike out the
'y-· 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
extreme following upon a mere failure to pay rent. First of all, there G
la. must be a failure to pay rent .which, in the context, indicates wilful
,..-. failure, deliberate default or volitional non-performance. Secondly,
the Section provides no automatic weapon but prescribes a wise dis-
cretion, inscribes no mechanical consequence but invests a power to
overcome intransigence. Thus, if a tenant fails or refuses to pay or B
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 SUPREME COURT REPORTS [1980] 3 S;C:it.

cannot be converted into the first resort; a punitive direetion of court
cannot be used as a booby trap to get the tenant out. Once this tele-
ological 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 rase is playing truant with the duty under-

• lying the power .

There is no indication whatsoever in the Act to show, that the ex-
ercise of the power of striking out of the defence under' s. I 5(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)
c 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 exer-
D
cised with due circumspection.

It will be noted that s. 15(7) of the Act is not couched in man-
datory language. It uses the word 'may'. The difference in the lan-
guage of s. 15(7) with that of s. 13(5) of the repealed Act is significaqt
and indicates that in the present Act there is a deliberate modification )
E of law in favour of the tenant. In this connection, it would be per-
tinent 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 t_ime, "the
court shall order the defence against ejectment to be struck out." with
F s. 15(7) of the Delhi Rent Control Act,1958 which substitut~s 'may' •·-~ '
~~~ed: ' ~
"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
,G. 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
ll to strike out the defence."
(I) A.LR. 1964 SC 1370.
'
SANTOBH MEHTA v. OM PRAKASH AND ANR. (Krishna Iyer,!.) 329

These ob3Crvations 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.

,•.
.1~., We stress the need for the Court to be aware of the milieu before
~·~~

•
,~ , ,, .
'.""--1''!''
exercise of this extreme power because the present case is 'illustrative
of its erroneous use . •
,•
The facts in this case cry for interv~ntion, if one may say so. The
appellant is a working woman who has to get to 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 be)lalf•and take proper steps to protect
c
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 trans-
pires that the amounts received by cheque or in cash by the advocate
were not depo~ited in court or paid to the landlord. It i& further seen
that when the tenant found that the amounts were not paid to the D
landlord by her advocate, she made a complaint to the .Bar Council
of Delhi and the matter is pending inquiry. From these circum-
filances, we are inclined to conclude-indeed, that is the only reaso-
nable conclusion in the circumstances-that the tenant has not failed •
to pay and, in any case, the exercise of judicial discretion must per-
suade 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
regnlarly 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 nocent. 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 dej,osit and,
G
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 B
-0ther hand, the appeal was dismissed as not maintainable in view of
s. 2SB.
•
330 SUPREME COURT REPORTS ,U980J 3 s.c.a.

An order sfrikitig out the defence is appealable under s. 38. So
Tus order is appealable. The reliance on s. 25B(8) to negatiYe an
appeal is inept because this is not an order llOder that special aee-
"
tion but one under s. 15. Moreover, s. 25B(l0) preserves the proce•
dure 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
B made 'in accordance with the procedure specified in this section' (i.e.
· 25B). Here the dispossession was not ordered under the special provi-
sion 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.
c
In thy 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 Contro lier. Having regard to the fact that the land-

D
lord 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 expeditio11Sly
(
and, as fa as possible, within fuu1 months from today.
Any further arrears, if accrued, will be paid under the direetions
, of the Rent Controller on or before a date fixed by him. The otder
for eviction passed in this case after striking out the defenc'e mult fail
B in view of our holding that the order striking out the defence itself is
illegal. Necessarily, the orders of the Rent Controller and of the
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.

Appeal a//(lwed. _
S.R. __,, I

MG~2S00-17-11-81l-189 SCI/80

'