DINA NATH (D) BY LRS & ANR. versus SUBHASH CHAND SAINI & ORS. on 24 September 2019

DINA NATH (D) BY LRS & ANR.

v.

SUBHASH CHAND SAINI & ORS.

(Civil Appeal No. 4563 of 2014)

SEPTEMBER 24, 2019

[ARUN MISHRA, M. R. SHAH AND AJAY RASTOGI, JJ.]

Delhi Rent Control Act, 1958: s. 15(7) – Power of the RentController to strike out defence of the tenant, pending evictionpetition – Nature of – Held: Power vested u/s. 15(7) is discretionaryand not mandatory – It depends on contumacious or deliberatedefault and must be construed harmoniously so as to balance therights and obligations of the tenant and the landlord – Power u/s.15(7) being an exception, is to be exercised with due care andcircumspection – On facts, on the date of the order passed by theRent Controller itself, the entire arrears as directed to be depositedby the tenants stood paid and also on the date of the order passedby the Rent Controller striking out his defence, rent for the entireintervening period and even beyond had been paid – Thus, thecharge of contumacious failure and deliberate default in makingpayment levelled against the tenants is ill founded – Decision of theRent Controller as upheld by the High Court, striking out defenceof the tenant has not been exercised judiciously and withcircumspection and thus, is unsustainable and set aside.

Allowing the appeal, the Court

HELD: 1.1 In Section 13(5) of Delhi and Ajmer RentControl Act, 1952 the language was that on the failure of thetenant to deposit the rent, in terms of the mandate of law, “theCourt shall order the defence against ejectment to be struck off”.In the Delhi Rent Control Act, 1958, Section 15(7) deals with thematter in case of failure of the tenant to make the payment fordeposit as required by the Act. The Rent Controller has adiscretion to consider the facts and circumstances of each caseand exercise his discretion judiciously in accordance with law.The change of the words from “the Court shall order the defenceagainst ejectment to be struck out” to the words “the Controller

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Amayorder the defence against eviction to be struck out” is adeliberate modification in law in favour of the tenant. Under theAct 1952, the Court had no option but to strike out the defence ifthe failure to pay or deposit the rent is proved; under the Act,1958, the Controller who takes the place of the Court has aBdiscretion in the matter, so that in proper cases, even if there isa default in making the payment of rent, but if he is satisfied onthe basis of the material on record in exercise of judicial discretion,may refuse to strike out the defence in the given facts &circumstances of the case. The inevitable result on comparison of Section 13(5) of the Act, 1952 and Section 15(7) of Act, 1958Cbe that the Court would not be bound to strike out the defenceagainst ejectment in case of default in payment of rent incompliance to the order passed under Section 15(1) of the Act,1958 and it is always open to the Controller to examine the factsof each case while exercising its discretion which obviously has Dto be judicious in approach and with circumspection.[Para 14, 15, 17][262-E-F; 263-E-F; 264-D-E]

1.2 Mere failure to pay rent on the part of the tenant is notenough to justify an order striking out the defence. It is only awilful failure or deliberate default or volitional of non–performanceEthat can call for the exercise of the extraordinary power vestedin the Court. More importantly, the plentitude of the discretionarypower of the Court under Section 15(7) of the Act, 1958 is withthe Rent Controller whether or not to strike out the defence,needless to say that the effect of striking out the defence underSection 15(7) of Act, 1958 is that the tenant be deprived of theFprotection available to him under Section 14 and it is imperativethat such power vested with the Rent Controller under Section15(7) of the Act, 1958 must be exercised with due care andcircumspection. The power vested under Section 15(7) of theAct, 1958 is discretionary and not mandatory and depends onGcontumacious or deliberate default and must be construedharmoniously so as to balance the rights and obligations of thetenant and the landlord and the power under Section 15(7) ofAct, 1958 being an exception to be exercised with due care andcircumspection. [Para 19, 24][265-F-G; 266-G; 267-A]

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2.1 In the instant case, on the date of the order passed bythe Rent Controller itself, the entire arrears as directed to bedeposited by the appellants stood paid and also on the date of theorder passed by the Rent Controller striking out his defence,rent for the entire intervening period and even beyond had beenpaid and what it appears is that suitable reconciliation andadjustments were required to be made against the months forwhich rent was payable but what cannot be disputed is that theamount which the appellants were called upon to pay and whatthey have, pursuant to the directions of the Rent Controller waspaid/deposited at all relevant point of time in excess of what waspayable to the landlord. In the given circumstances, the chargeof contumacious failure and deliberate default in making paymentlevelled against the appellants–tenants is, thus, ill founded. [Para29][268-E-G]

2.2 The amount of rent payable for the demised premisesmay be a factor which cannot be brushed aside, but the facts andcircumstances of the case on hand, do not suggest any negligence,defiance or contumacious non–payment of the amount payable tothe landlord to warrant the taking of that “exceptional step” whichis bound to render the tenant defenceless in his contest againstthe landlord. [Para 30][268-H; 269-A]

2.3 The decision of the Rent Controller and confirmed bythe Single Judge of the High Court upholding the decision ofstriking out of the defence of the appellants which certainly entailsadverse consequences in depriving of taking their defence andto contest the eviction application filed by the landlord has notbeen exercised judiciously and with circumspection and thus, theimpugned judgment is unsustainable and is set aside. [Para31][269-B-C]

Ashoka Marketing Ltd. and Anr. v. Punjab NationalBank and Ors. (1990) 4 SCC 406 : [1990] 3 SCR 649;Miss. Santosh Mehta v. Om Prakash and Ors.(1980)3SCC 610 : [1980] 3 SCR 325; Smt. Kamla Devi v. ShriVasudev(1995)1 SCC 356 : [1994] 6 Suppl. SCR 603; AB

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AM/s. Jain Motor Car Co., Delhi Vs. Smt. Swayam PrabhaJain & Anr. (1996) 3 SCC 55 : [1996] 2 SCR 663;Aero Traders (P) Ltd. Vs. Ravinder Kumar Suri (2004)8 SCC 307;Amrit Lal Vs. Shiv Narain Gupta(2010) 15SCC 510 – referred to.

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Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4563Dof 2014.

From the Judgment and Order dated 10.05.2011 of the High Courtof Delhi at New Delhi in Civil Misc. (M) No. 44 of 2011.

Brahm S. Nagar and Ashok Mathur, Advs. for the Appellants.

EAmitabh Krishn, Pranesh, Rohit Kumar and S. S. Bandhopadhya,Advs. for the Respondents.

The Judgment of the Court was delivered by RASTOGI, J.

1. The instant appeal has been filed against the judgment andorder dated 10[th] May, 2011 passed by the High Court of Delhi in CivilMiscellaneous (M) No. 44 of 2011 at the instance of the appellants(tenants) under Article 227 of the Constitution of India upholding ordersof the Rent Controller striking out defence of the appellants on accountof alleged failure to pay the rent.

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2. The matter earlier was heard by a two Judge Bench of thisCourt and there was a unanimity on the principles of law that the powerto strike out the defence vested in the Rent Controller under Section15(7) of the Delhi Rent Control Act, 1958 (hereinafter being referred toas the “Act, 1958”) is discretionary and not mandatory and it is imperative H

that every violation in implementation of the directions of the RentController under Section 15(1) of the Act, 1958 ipso facto leave to thestriking out of the defence of the tenant and it ought to be exercised onlywhen the tenant deliberately, contumaciously or negligently fails to depositthe rent due from him but there was a divergence of opinion on the factsof the instant case and for that reason the matter has been placed beforeus.

3. The facts in brief which may be relevant for the present purposeand culled out from the record are that the appellants-tenants rented ashop bearing no. 1445-A, Dariba Kalan, Delhi on a monthly rent of Rs.66/-. The respondents-plaintiffs jointly own the above-mentioned demisedpremises. The rent for the shop is to be paid to respondent no. 1, whoholds a power of attorney, to collect rent on behalf of the respondents.In November, 2007, the respondents (landlord) filed an eviction petitionunder Section 14(1)(a)(b)(c) and (j) of the Act, 1958 seeking decree forrecovery of possession of the rented premises on the manifold reasons.We are not dilating on the grounds of eviction of the demised premisesat this stage since that is the subject matter to be examined by the RentController where the eviction petition is pending adjudication.

4. The appellants filed their written statement on 7[th] February,2008 disputing the allegations made by the respondents in the evictionpetition. Since one of the ground on which eviction was prayed for bythe respondents was non-payment of rent in which the order under Section15(1) of the Act, 1958 came to be passed on 21[st] April, 2008. It will beappropriate to quote the order dated 21[st] April, 2008 ad infra:- “RENT CONTROL TRIBUNAL - DELHI

E-931/07

21.04.08

Arguments heard u/s 15(1) of DRC Act. The rate of rent andthe relationship is not in dispute between the parties though thepetitioner claims the arrears w.e.f. 01.01.2007 and the respondentstates that he has paid rent upto October, 2007.

Since the orders u/s 15(1) of DRC Act are to be passed on theadmitted facts, the respondent is directed to pay or deposit thearrears of rent w.e.f. 01.11.2007 till date @ Rs. 66/-pm within 30days from today and further continue to pay or deposit the future A

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rent at the said rate month by month before 15[th] of each succeedingEnglish Calendar month.

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ARC/DELHI/21.04.2008"

B5. In terms of the order under Section 15(1) of Act, 1958, theappellants-tenants have to pay or deposit the arrears of rent w.e.f. 1[st]November, 2007 till date @ Rs. 66/- p.m. within 30 days from 1[st]November, 2007 and further continue to pay or deposit the future rent atthe said rate month by month before 15[th] of each succeeding EnglishCalendar month.

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6. On account of non-compliance of the order dated 21[st] April,2008 as alleged, the respondents filed an application under Section 15(7)of the Act, 1958 on 28[th] April, 2009 praying for striking out the defenceof the appellants.

7. The appellants filed their written response to the aforesaidDapplication and it was specifically stated in paragraphs 3 & 4 that alongwith the arrears due from 1[st] November, 2007, in addition the advancerent of ten months was deposited and on adjustment of the advance rentdeposited on 21[st] April, 2008, the monthly rent which was deposited at alater point of time practically paid in advance and there was no defaultEcommitted of the order dated 21[st] April, 2008.

8. Taking note of the rival claims of the parties, the Rent Controllervide its Order dated 14[th] September, 2009 allowed the application filedby the respondents-landlord under Section 15(7) of the Act, 1958 andstruck off the defence of the appellants in the pending evicting petition.Dissatisfied with the order passed by the Rent Controller, the appellantsFapproached the Rent Control Tribunal. By an order dated 24[th] May,2010, the Rent Control Tribunal dismissed the appeal and beingdissatisfied, the appellants further approached the High Court invokingArticle 227 of the Constitution of India and that came to be dismissedvide judgment and order dated 10[th] May, 2011 which is under challengeGbefore us in the instant civil appeal.

9. The moot question arises for consideration is whether the powervested with the Rent Controller under Section 15(7) of the Act, 1958 isdiscretionary and has been judiciously exercised in the facts of the instantcase in striking out the defence of the appellants(tenants) in the evictionproceedings.H

10. Before adverting to the factual matrix relevant to the questionof striking out the tenant’s defence, it will be apposite for us to take noteof the scheme of the Act, 1958.

11. The statement of objects and reasons of the Act, 1958 fell forconsideration before the Constitution Bench of this Court in AshokaMarketing Ltd. and Anr. Vs. Punjab National Bank and Ors.[1],wherein this Court held that the purpose of the Act, inter alia, is to givethe tenants a larger measure of protection against eviction. This Courtobserved:

“…The Statement of objects and reasons for the enactment ofthe Rent Control Act, indicates that it has been enacted with aview :

(a) to devise a suitable machinery for expeditious adjudication ofproceedings between landlords and tenants; (b) to provide for the determination of the standard rent payableby tenants of the various categories of premises which should befair to the tenants, and at the same time, provide incentive forkeeping the existing houses in good repairs, and for furtherinvestment in house construction; and

(c) to give tenants a larger measure of protection against eviction.

This indicates that the object underlying the Rent ControlAct is to make a provision for expeditious adjudication of disputesbetween landlords and tenants, determination of standard rentpayable by tenants and giving protection against eviction to tenants.The premises belonging to the Government are excluded fromthe ambit of the Rent Control Act which means that theAct hasbeen enacted primarily to regulate the private relationship betweenlandlords and tenants with a view to confer certain benefits onthe tenants and at the same time to balance the interest of thelandlords by providing for expeditious adjudication of proceedingsbetween landlords and tenant…”

(emphasis supplied)

12. Prior to the enactment of Act, 1958, the matter pertaining torent and eviction in the State of Delhi was governed by The Delhi and 1 1990 (4) SCC 406

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AAjmer Rent Control Act, 1952(hereinafter being referred to as the “Act,1952”). Apart from the ground of eviction provided under Section 13 ofthe Act, 1952 which is corresponding to the grounds for protection of atenant against eviction has been enumerated under Section 14 of theAct, 1958. The corresponding provision of Section 13(5) of Act, 1952has been provided under Section 15(7) with certain modifications underBAct, 1958.

13. One of the significant modification is that while under Section13(5) of the Act, 1952, the application by the landlord had to be “for anorder on the tenant-defendant to deposit month by month rent at a rateat which it was last paid” in all suits for ejectments. Section 15 of theCAct, 1958 makes a distinction between cases where the recovery ofpossession is sought on, the grounds of arrears of rent having been leftunpaid within two months of the service of notice of demand and otherejectment proceedings. In the first class of cases, the Controller canmake an order for payment of rent at the rate at which it was last paid Dwhile in the other class of cases the Controller may make an order forpayment at the rate at which it was legally recoverable.

14. The other notable difference is that under Section 13(5) of theAct, 1952, failure of the tenant to deposit the arrears of rent within 15days of the date of the order or to deposit the rent for any month by theE15[th] of the next following month made it incumbent on the Court to strikeout the defence against ejectment. The language was that on the failureof the tenant to deposit the rent, in terms of the mandate of law, “theCourt shall order the defence against ejectment to be struck off”. In theAct 1958, Section 15(7) deals with the matter in case of failure of thetenant to make the payment for deposit as required by the Act. TheFRent Controller has a discretion to consider the facts and circumstancesof each case and exercise his discretion judiciously in accordance withlaw. It will be appropriate to notice Section 13(5) of Act, 1952 and Section15(7) of Act, 1958, which are as under:- THE DELHI AND AJMER RENTCONTROLACT, 1952G

“13 - Protection of a tenant against eviction

(5) If the tenant contests the suit as regards the claim for ejectment,the plaintiff-landlord may make an application at any stage of thesuit for an order on the tenant-defendant to deposit month bymonth rent at a rate at which it was last paid and also the arrears H

of rent, if any, and the court, after giving an opportunity to theparties to be heard, may make an order for the deposit of rent atsuch rate month by month as it thinks fit and the arrears of rent, ifany, and on the failure of the tenant to deposit the arrears of rentwithin fifteen days of the date of the order or to deposit the rent atsuch rate for any month by the 15th of the next following month,the court shallorder the defence against ejectment to be struckout and the tenant to be placed in the same position as if he hadnot defended the claim to ejectment; and the landlord maywithdraw the amount of money in deposit without prejudice to hisclaim to any decree or order for recovery of possession of thepremises.”

DELHI RENTCONTROLACT, 1958

“Section 15 - When a tenant can get the benefit of protectionagainst eviction

(7) If a tenant fails to make payment or deposit as required by thissection, the Controllermay order the defence against eviction tobe struck out and proceed with the hearing of the application.”

(emphasis supplied)

15. The change of the words from “The Court shall order thedefence against ejectment to be struck out” to the words “the Controllermay order the defence against eviction to be struck out” is a deliberatemodification in law in favour of the tenant. Under the Act 1952, theCourt had no option but to strike out the defence if the failure to pay ordeposit the rent is proved; under the Act, 1958, the Controller who takesthe place of the Court has a discretion in the matter, so that in propercases, even if there is a default in making the payment of rent, but if heis satisfied on the basis of the material on record in exercise of judicialdiscretion, may refuse to strike out the defence in the given facts &circumstances of the case.

16. Broadly speaking, the perusal of Act, 1952 with Act, 1958shows primarily the following changes:-

(i) Section 13(5) of the Act, 1952 was meant to safeguard theinterest of the landlord only. Section 15(1) of the Act, 1958 ismeant primarily by way of benefit to the tenant who getsanother opportunity to avoid his eviction by complying with A

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the order passed under Section 15(1). The tenant also bycomplying with the order passed under Section 15(1) avoidsthe consequence of his default of payment or tender beforefiling of the petition.

(ii) Under Section 13(5) of the Act 1952, in case of default, theBCourt was bound to strike out the defence whereas underSection 15(7) of the Act 1958, in case of default in compliancewith the order passed under Section 15(1) or Section 15(2),the Controller has a discretion to strike out the defence and itis always open to be examined on the facts and circumstancesof each case.

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(iii) Under the Act, 1958 by complying with the order underSection 15(1), the tenant can defeat the eviction application,whereas under the Act 1952, the tenant did not have thisadvantage even if he complied with the order under Section13(5) of the Act 1952.D

17. The inevitable result on comparison of Section 13(5) of theAct, 1952 and Section 15(7) of Act, 1958 be that the Court would not bebound to strike out the defence against ejectment in case of default inpayment of rent in compliance to the order passed under Section 15(1)of the Act, 1958 and it is always open to the Controller to examine theEfacts of each case while exercising its discretion which obviously has tobe judicious in approach and with circumspection.

18. While interpreting Section 15(7) of Act 1958, V.R. KrishnaIyer, J. in Miss. Santosh Mehta Vs. Om Prakash and Ors.[2] held thatthe power to strike out a party’s defence is an exceptional step and hasFonly to be exercised where a “mood of defiance” and “gross negligence”on the part of the tenant is detected. This Court warned against thelandlord using Section 15(7) as a “booby trap” to get the tenant evicted.It would be better to reproduce the passage which indicate the approachwhich has to be adopted in such matters by the Court. The relevantGparas 3 & 4 are as under:- “3. We must adopt a socially informed perspective while construingthe provisions and then it will be plain that the Controller is armedwith a facultative power. He may, or may not strike out the tenant’s H2 1980(3) SCC 610

defence. A judicial discretion has built-in-self-restraint, has thescheme of the statute in mind, cannot ignore the conspectus ofcircumstances which are present in the case and has the broodingthought playing on the power that, in a court, striking out a party’sdefence is an exceptional step, not a routine visitation of a punitiveextreme following upon a mere failure to pay rent. First of all,there must be a failure to pay rent which, in the context, indicateswilful failure, deliberate default or volitional non-performance.Secondly, the section provides no automatic weapon but prescribesa wise discretion, inscribes no mechanical consequence but investsa power to overcome intransigence. Thus, if a tenant fails orrefuses to pay or deposit rent and the court discerns a mood ofdefiance or gross neglect, the tenant may forfeit his right to beheard in defence. The last resort cannot be converted into thefirst resort; a punitive direction of court cannot be used as a boobytrap to get the tenant out. Once this teleological interpretationdawns, the mist of misconception about matter-of-courseinvocation of the power to strike out will vanish. Farewell to therealities of a given case is playing truant with the duty underlyingthe power.

4. …..The effect of striking out of the defence under Section15(7) is that the tenant is deprived of the protection given by Section14 and, therefore, the powers under Section 15(7) of the Act mustbe exercised with due circumspection.”

19. Subsequent decisions rendered on the subject also recognisesthat mere failure to pay rent on the part of the tenant is not enough tojustify an order striking out the defence. It is only a wilful failure ordeliberate default or volitional of non-performance that can call for theexercise of the extraordinary power vested in the Court. More importantly,the plentitude of the discretionary power of the Court under Section15(7) of the Act, 1958 is with the Rent Controller whether or not tostrike out the defence, needless to say that the effect of striking out thedefence under Section 15(7) of Act, 1958 is that the tenant be deprivedof the protection available to him under Section 14 and it is imperativethat such power vested with the Rent Controller under Section 15(7) ofthe Act, 1958 must be exercised with due care and circumspection.

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A20. In Smt. Kamla Devi Vs. Shri Vasudev[3], this Court reiteratedthat the power to strike out the defence simply vested the Rent Controllerwith the discretion to do so. It was not mandatory for the Rent Controllerto strike out the defence simply because a default had occurred. It isimperative that exercise of discretion vested with the authority obviouslydepends upon the facts and circumstances of each case and is not openBto be exercised under the rule of thumb.

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21. The later decision in M/s. Jain Motor Car Co., Delhi Vs.Smt. Swayam Prabha Jain &Anr.[4] does not disturb the legal parametersregulating the exercise of the power but deals more on the facts andcircumstances of that case in which the power was found to have beenCrightly exercised.

22. The interpretation with reference to striking out the defenceof a tenant under Section 15(7) of the Act, 1958 later came up forconsideration before this Court in Aero Traders (P) Ltd.Vs. RavinderKumar Suri[5].D

23. Reference may be made to a later decision of this Court inAmrit Lal Vs. Shiv Narain Gupta[6] wherein it was held that sub-section(7) of Section 15 of the Act, 1958 confers a discretion with the RentController who may order the defence against eviction to be struck offand proceed with the hearing of the application if a tenant fails to makeEpayment or deposit, as required under Section 15 of Act, 1958. It hasbeen further held that every violation under Section 15(1) of the Act,1958 will not ipso facto lead to the striking out the defence of a tenant.The discretion vested with the Controller under Section 15(7) of Act,1958 has to be exercised judiciously and if the non-compliance of theForder under Section 15(1) of the Act, 1958 depicts irrational disregard tothe order, or when the non-compliance is repeated, or when no reasonablejustification is tendered, or for such other similar reasons, wilful,contumacious, or negligent and careless behaviour, could lead to thestriking out of a tenant’s defence.

G 24. It clearly emerges from the exposition of law that powervested under Section 15(7) of the Act, 1958 is discretionary and notmandatory and depends on contumacious or deliberate default and must 3 1995(1) SCC 3564 1996(3) SCC 555 2004(8) SCC 307H6 2010(15) SCC 510

be construed harmoniously so as to balance the rights and obligations ofthe tenant and the landlord and the power under Section 15(7) of Act,1958 being an exception to be exercised with due care and circumspection.

25. Coming to the case on hand, there are distinct aspects fromwhich the question of default in payment of rent has to be viewed. In thefirst instance, the question is whether the arrears which the Courtdetermined and directed the appellant to pay were paid. The answerindeed is in the affirmative. The Rent Controller passed an order dated21[st] April, 2008 directing the appellants to deposit arrears of rent from1[st] November, 2007 to April, 2008 and to continue to pay future rent @Rs. 66/- p.m. by the 15[th] of each succeeding month. It is not in disputethat the appellants had complied with the order of deposit of arrears on21[st] April, 2008. In fact, they paid ten months advance rent in addition toarrears from November, 2007 to April, 2008 in compliance of the orderdated 21[st] April, 2008.

26. The second limb which in fact has been missed at all the threestages is that in addition to the arrears of rent i.e. from November, 2007to April, 2008, the appellants paid an amount equivalent to ten months’advance rent, although there was neither any legal obligation to do sonor was any direction issued by the Rent Controller for making suchpayment. It is not disputed that the additional rent paid by the appellantsof ten months advance rent did not represent any admitted liability, andthe fact is that the additional rent of ten months which was paid by theappellants over the period from 1[st ]November, 2007 to April, 2008 wasneither adjusted against future rent nor was it refunded to the appellants.

27. It may be relevant to note that although the respondents-landlordhave claimed arrears for the period 1[st] January 2007 to October 2007,but that was disputed by the appellants as it revealed from the orderdated 21[st] April, 2008, but as we are examining the question regardingstriking of defence because of non-compliance of the order passed bythe Rent Controller in exercise of his power under Section 15(1) of Act,1958, the arrear in terms of order dated 21[st] April, 2008 was to be paidfrom November, 2007 to April, 2008 and additional rent of ten monthspaid on 21[st] April, 2008 was indeed to be adjusted by the respondentstowards future rent for the period commencing from 1[st] May, 2008 andit was the only legal option and having that excess amount beingacknowledged by the respondents-landlord, the same must have been,in absence of a direction from the Court, be deemed to have been received A

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Aand held by the respondents-landlord for the benefit of the appellants-tenants and adjustment of such excess amount against future liability inthat view is the only possible and legally valid method of appropriation ofthat amount. Viewed thus, the amount paid by the appellants on 21[st]April, 2008 covered the period of future rent commencing from May2008 to February, 2009(ten months).B

28. The further limb of the factual matrix is also indisputed fromthe record that after adjustment of the rent paid upto February, 2009, themonthly rent deposited on 27[th] June, 2008 of one month and 17[th]December, 2008 for five months will cover the period till 31[st] August,2009. That means, the appellants have paid advance rent upto 31[st] August,C2009. Not only that, the further two deposits made by them, first on 1[st]May, 2009 and second on 5[th] May, 2009, if these payments would havebeen taken into consideration, the appellants discharged the entire rentliability commencing from 1[st] September, 2009. The rent which was paid/deposited by the appellants on 21[st] April, 2008 followed with 27[th] June,D2008, 17[th] December, 2008, 1[st] May, 2009 and 5[th] May, 2009 is not indispute and that covers the rent for a period of one year and nine monthscommencing from 1[st] September, 2009.

29. It clearly manifests from record that on the date of the orderpassed by the Rent Controller dated 21[st] April, 2008 itself, the entireEarrears as directed to be deposited by the appellants stood paid and alsoon the date of the order passed by the Rent Controller striking out hisdefence, rent for the entire intervening period and even beyond hadbeen paid and what it appears is that suitable reconciliation andadjustments were required to be made against the months for whichrent was payable but what cannot be disputed is that the amount whichFthe appellants were called upon to pay and what they have, pursuant tothe directions of the Rent Controller was paid/deposited at all relevantpoint of time in excess of what was payable to the landlord. In the givencircumstances, the charge of contumacious failure and deliberate defaultin making payment levelled against the appellants-tenants is, therefore,Gill founded.

30. The question is whether the tenants were guilty ofcontumacious conduct in withholding such payment. While answeringthat question, the amount of rent payable for the demised premises maybe a factor which cannot be brushed aside, but the facts andHcircumstances of the case on hand, do not suggest any negligence, defiance or contumacious non-payment of the amount payable to thelandlord to warrant the taking of that “exceptional step” which is boundto render the tenant defenceless in his contest against the respondents-landlord.

31. In our opinion, the decision of the Rent Controller and confirmedby the Single Judge of the High Court of Delhi under the impugnedjudgment upholding the decision of striking out of the defence of theappellants which certainly entails adverse consequences in depriving oftaking their defence and to contest the eviction application filed by therespondents-landlord has not been exercised judiciously and withcircumspection and for the aforesaid reasons, the impugned judgment isunsustainable and deserves to be set aside.

32. It appears that the eviction application was filed by therespondents in the year 2007 and almost 12 years have rolled by and thematter could not be proceeded because of the pendency of theproceedings in this Court, we consider it appropriate to observe that theRent Controller/Competent Authority may proceed with the matter anddecide the pending eviction application expeditiously on merits but in nocase later than one year in accordance with law.

33. In the result, the appeal succeeds and the impugned judgmentof the High Court of Delhi dated 10[th] May, 2011 confirming order of theRent Controller/Tribunal are hereby set aside with the observations supra.No costs.

34. Pending application(s), if any, stand disposed of.

Nidhi Jain

Appeal allowed.

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