# DINA NATH (D) BY LRS. &ANR v. SUB HASH CHAND SAINI & ORS

- **Citation:** [2014] 14 S.C.R. 1564
- **Court:** Supreme Court of India
- **Decided:** 2014-04-16
- **Case number:** Civil Appeal No. A· 4563 of 2014
- **Bench:** T.S. Thakur, JAGDISH SING!i KHEHAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dina-nath-d-by-lrs-anr-v-sub-hash-chand-saini-ors-29710
- **Pages:** 46

## Headnote

Delhi Rent Control Act, 1958 - s.15(7) -Application
C under - By landlord - For striking out the defence of the
tenants taken by them in eviction proceedings - On the
ground that there was delay in depositing the future rent as
directed by Rent Controller- Propriety of- HELD: In view of
difference of opinion, matter referred to three Judge Bench -
D Per Khehar, J.: - Appeal liable to be dismissed -
The
discretion u/s. 15(7), in the facts of the case, was rightly
exercised by the competent authority by striking out the
defence of the tenant - Per Thakur, J.: Appeal· lia~le to be
allowed -
The facts of the case do not suggest any
E negligence, defiance or contumacious non-payment of the
amount due to the landlord, to render the tenant defenceless.
Referring the matter to three Judge Bench, the
Court
F
Held:
Per Khehar, J. (Dismissing the appeal):
1. The power vested uls. 15(7) of the Rent Act to
strike off the defence of a tenant, is discretionary and
G not mandatory. Therefore every violation in
implementation of the direction(s) issued by a Rent
Controller u/s. 15(1) of the Rent Act, will not ipso facto
lead to the striking out the defence of a tenant. A Rent
Controller must exercise his discretion, keeping in mind
H
1564
DINA NATH (D) BY LRS. & ANR. v. SUBHASH CHAND
1565
SAINl&ORS.
the nature of the non-compliance. If the non-compliance A
is not serious, or is based on good reason, a Rent
Controller would not strike off the defence of the tenant.
· Only when the non-compliance of the order passed by
the Rent Controller u/s. 15(1) of the Rent Act, depicts
irrational disregard to the order, or when the nonB
compliance is repeated, or when no justification has been
expressed for the same, or for such other similar
reason(s), the discretion vested in s.15(7) of the Rent Act,
would entitle the Rent Controller to strike off the defence
of a tenant. Judicial discretion exercised in such a matter C
mu.st be tempered with self-restraint, keeping in mind,
that striking out a tenant's defence is an exceptionally
harsh step, which ought not be taken in a routine and
casual manner. The Court must carefully evaluate the D
facts of the given case, before exercising its discretion.
[Para 11][1587-D-H; 1588-A)
2. Payments made by the appellants-tenants, for
future rent payable upto 15.4.2009 (for the month of
March, 2009), after the date of filing of the application E
are not relevant, for determining the issue in hand i.e.
striking out the defence of the tenants. The date on
which the Rent Controller passed the order striking out
the defence of the appellants-tenants, i.e.14.9.2009, has
absolutely no nexus to the consideration contemplated F
in s.15(7) of the Rent Act. S. 15(7) of the Rent Act does
not contemplate condonation of payments made in
violation of the directions issued by the Rent Controller,
by subsequent payments, even where the tenant accepts
to make a voluntary payment, many folds more than what G
is due to the landlord. The only exception is when there
is a reasonable explanation for delayed payment.
[Para 17][1595-D-G]
H
1566
SUPREME COURT REPORTS
(2014) 14 S.C.R.
A
3. In the present case, the appellants treated the
directions of the Rent Controller dated 21.4.2008, with
absolute casualness. This is not a case of a single lapse,
but of persistent repeated and unrelenting default in the
payment of future rent, for all the months intervening the
B date when the order u/s.15(1) of the Rent Act was passed,
and the date when the application u/s. 15(7) was filed by
the respondents-landlords. It is not possible to condone
such indifference, insensitivity, disinterest and apathy
to judicial directions. Judicial discretion in such a matter,
C taking into consideration the defaults committed by the
appellants-tenants, was legitimately exercised by the
Courts below, by striking out the defence of the
appellants-tenants. The legislative purpose was, to curb
0
tendencies of tenants, from abusing the legal process.
[Paras 16 and 18][1594

## Text

_Characters 0–39,816 of 89,311. This is a partial read: ask again with offset=39816 for what follows._

B
[2014] 14 S.C.R. ·1564
DINA NATH (D) BY LRS. &ANR.
v.
SUB HASH CHAND SAINI & ORS.
(Civil Appeal No,4563 of 2014)
APRIL 16, 2014
[T.S. THAKUR AND JAGDISH SING!i KHEHAR, JJ.]
Delhi Rent Control Act, 1958 - s.15(7) -Application
C under - By landlord - For striking out the defence of the
tenants taken by them in eviction proceedings - On the
ground that there was delay in depositing the future rent as
directed by Rent Controller- Propriety of- HELD: In view of
difference of opinion, matter referred to three Judge Bench -
D Per Khehar, J.: - Appeal liable to be dismissed -
The
discretion u/s. 15(7), in the facts of the case, was rightly
exercised by the competent authority by striking out the
defence of the tenant - Per Thakur, J.: Appeal· lia~le to be
allowed -
The facts of the case do not suggest any
E negligence, defiance or contumacious non-payment of the
amount due to the landlord, to render the tenant defenceless.
Referring the matter to three Judge Bench, the
Court
F
Held:
Per Khehar, J. (Dismissing the appeal):
1. The power vested uls. 15(7) of the Rent Act to
strike off the defence of a tenant, is discretionary and
G not mandatory. Therefore every violation in
implementation of the direction(s) issued by a Rent
Controller u/s. 15(1) of the Rent Act, will not ipso facto
lead to the striking out the defence of a tenant. A Rent
Controller must exercise his discretion, keeping in mind
H
1564
DINA NATH (D) BY LRS. & ANR. v. SUBHASH CHAND
1565
SAINl&ORS.
the nature of the non-compliance. If the non-compliance A
is not serious, or is based on good reason, a Rent
Controller would not strike off the defence of the tenant.
· Only when the non-compliance of the order passed by
the Rent Controller u/s. 15(1) of the Rent Act, depicts
irrational disregard to the order, or when the nonB
compliance is repeated, or when no justification has been
expressed for the same, or for such other similar
reason(s), the discretion vested in s.15(7) of the Rent Act,
would entitle the Rent Controller to strike off the defence
of a tenant. Judicial discretion exercised in such a matter C
mu.st be tempered with self-restraint, keeping in mind,
that striking out a tenant's defence is an exceptionally
harsh step, which ought not be taken in a routine and
casual manner. The Court must carefully evaluate the D
facts of the given case, before exercising its discretion.
[Para 11][1587-D-H; 1588-A)
2. Payments made by the appellants-tenants, for
future rent payable upto 15.4.2009 (for the month of
March, 2009), after the date of filing of the application E
are not relevant, for determining the issue in hand i.e.
striking out the defence of the tenants. The date on
which the Rent Controller passed the order striking out
the defence of the appellants-tenants, i.e.14.9.2009, has
absolutely no nexus to the consideration contemplated F
in s.15(7) of the Rent Act. S. 15(7) of the Rent Act does
not contemplate condonation of payments made in
violation of the directions issued by the Rent Controller,
by subsequent payments, even where the tenant accepts
to make a voluntary payment, many folds more than what G
is due to the landlord. The only exception is when there
is a reasonable explanation for delayed payment.
[Para 17][1595-D-G]
H
1566
SUPREME COURT REPORTS
(2014) 14 S.C.R.
A
3. In the present case, the appellants treated the
directions of the Rent Controller dated 21.4.2008, with
absolute casualness. This is not a case of a single lapse,
but of persistent repeated and unrelenting default in the
payment of future rent, for all the months intervening the
B date when the order u/s.15(1) of the Rent Act was passed,
and the date when the application u/s. 15(7) was filed by
the respondents-landlords. It is not possible to condone
such indifference, insensitivity, disinterest and apathy
to judicial directions. Judicial discretion in such a matter,
C taking into consideration the defaults committed by the
appellants-tenants, was legitimately exercised by the
Courts below, by striking out the defence of the
appellants-tenants. The legislative purpose was, to curb
0
tendencies of tenants, from abusing the legal process.
[Paras 16 and 18][1594-F-H; 1595-A-B; 1596-B]
E
F
Miss Santosh Mehta vs. Om Prakash and Ors.
(1980) 3 sec 610: 1980 (3) SCR 325; Kam/a
Devi vs. Vasdev (1995) 1 SCC 356: 1994 (6)
Suppl. SCR 603; Jain Motor Car Co., Delhi vs.
Swayam Prabha Jain (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) 15 SCC 510 - relied on.
Per Thakur, J. (Allowing the appeal):
1. S.15(7) of the Delhi Rent Control Act leaves wide
discretion with the Trial Court whether or not to strike
out the defence of the tenant even where a default is
G proved. Exercise of that discretion in turn depends upon
whether or not the default in payment of rent is seen by
the Courts to be deliberate or contumacious in nature.
That is because s.15(7) cannot be so interpreted as to
H
DINA NATH (D) BY LRS. & ANR. v. SUBHASH CHAND
1567
SAINl&ORS.
negate or frustrate the spirit of the legislation which aims A
at granting protection to the tenants from eviction. The
provision must be so construed as to promote the object
underlying the Act. [Para 9][1603-G-H; 1604-A·B]
2. The facts and circumstances of the case at hand B
do not, suggest any negligence, defiance or
contumacious non-payment of the amount due to the
landlord to warrant the taking of that "exceptional step"
which is bound to render the tenant defenceless in his
contest against the landlord. [Para 15][16{}9-A·B]
c
Miss Santosh Mehta vs. Om Prakash and Ors.
(1980) 3 sec 610 : 1980 (3) scR 325; smt.
Kam/a Devi vs. Shri Vasudev"(1995) 1 SCC 356:
1994 (6) Suppl. SCR 603; Mis. Jain Motor Car
Co., Delhi v. Smt. Swayam Prabha Jain & Anr.
D
(1996) 3 SCC 55: 1996 (2) SCR 663 - referred
to.
Nagindas Ramdas vs. Dalpatram lchharam @
Brijram and Ors. (1974) 1 SCC 242: 1974 (2)
E
SCR 544 ; D. C. Bhatia and Ors. vs. Union of India
andAnr. (1995) 1SCC104: 1994 (4) Suppl. SCR
539; Ashoka Marketing Ltd. and Anr. vs. Punjab
National Bank and Ors. (1990) 4 SCC 406: 1990
(3) SCR 649; Mis Rahabhar Productions Pvt. Ltd.
F
vs. Rajendra K. Tandon (1998) 4 SCC 49: 1998 (
2) SCR 470; Mst. Bega Begum and Ors. vs. Abdul
Ahad Khan (Dead) by LRs. and Ors. (1979) 1 SCC
273: 1979 (2) SCR 1; Mis Central Tobacoo Co. ·
Bangalore vs. Chandra Pakash 1969 (2) UJ 432;
G
Phiroze Bamanji Desai vs. Chandrakant N. Patel
and Ors. 1974 (1) SCC 661: 1974 (3) SCR 267;
H
15EHL
SUPREME COURT REPORTS
(2014) 14 S.C.R.
A
Mohd. Ayub and Anr. vs. Mukesh Chand (2012) 2 ' •
SCC 155: 2012 (1) SCR 12:' Bhimanagouda
Basanagouda Patil vs. Mohd. Gudusaheb (2003)
"
3 sec 101 - referred to.
B
CASE LAW REFERENCE
In.the judgment of Khehar, J.:
1980 (3) SCR 325
. relied on
Para 10.1 ·
1994 (6) Suppl. SCR 603 relied on
Para 10.2
c 1996 (2) SCR 663
relied on
Para 10.3
(2004) 8 sec 301
relied on
Para 10.4
(2010) 15 sec 510
relied on
Para 10.5
'
D
lri the judgment of Thakur, J.:
1974 (2) SCR 544
referred to ·
Para 3
1994 (4) Suppl. SCR 539 referred to
Para 4
1990 (3) SCR 649
referred to '
Para 4
E 1998 (2) SCR 470
referred to
Para 6
1979 (2) SCR 1
referred to
Para 7
1969 (2) UJ 432
referred to
Para 7
F 1974 (3) SCR 267
referred to
Para 7
2012 (1) SCR 12
referred to ·
Para 7
c2003) 3 sec 101
referred to
Para 7
1980 (3) SCR 325
relied on·
Para 10
G 1994 (6) Suppl. SCR 603 referred to
Par.a 12
1996 (2) SCR 663
relied on
Para 12
H
DINA NATH (D) BY LRS. & ANR. v. SUBHASH CHAND
1569
SAINl&ORS.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. A·
4563 of 2014.
From the judgment and order dated 10.05.2011 of the
High Court of Delhi at New Delhi in CM No. 44 of 2011.
Brahmn S. Nagar and Ashok Mathur, Advs., for the
B
Appellants.
Amitabh Krishn and·Pranesh, Advs., for the
Respondents.
The Judgments of the Court were delivered by
c
JAGDISH SINGH KHEHAR, J. 1. Leave granted.
2. It is not a matter of dispute that the appellants rented a
shop bearing no. 1445-A, Dariba Kalan, Delhi, wherein the
monthly payable rent is Rs. 66/-. The 25 respondents jointly D
own the abovementioned tenanted premises. The rent for the
shop is paid to respondent no. 1, who holds a power of attorney
to collect rent (on behalf of the respondents). In November
2007, the respondents filed an eviction petition under Section
14 (1) (a) (b) (c) and Q) of the Delhi Rent Control Act, 1958 E
(hereinafter referred to as "the Rent Act") seeking
repossession of the rented premises, for a variety of reasons.
It was, inter alia, alleged, that the appellants had neither paid
nor tendered rent with effect from January, 2007, despite the
service of a demand notice, requiring the tenants to pay F
arrears of rent. It was also asserted, that the appellants had
sublet the tenanted premises to his son. In this behalf, it was
alleged that the appellant's son was using the shop for running
a "halwai" (traditionai Indian sweetmeat maker) business. The
shop was originally let out for selling cold drinks, biscuits etc.
G
On the issue of usage, it was pointed out, that since the shop
was now being used for running "halwai" business, the
H
1570
. SUPREME COURT REPORTS
[2014] 14 S.C.R.
A
appellants were using LPG cylinders in the rented premises.
This, according to the respondents, had damaged the old
construction. Additionally it was alleged, that the appellants
had also raised illegal constructions, and had thereby altered
the structure of the rented shop. In this behalf it was asserted,
B that the appellants had lowered the floor of the premises (by
approximately 3 feet below the plinth level) by excavating and
dismantling the flooring. It was also alleged, that a 'chabutra'
(a covered sitting platform) measuring about 4.5 feet and a
'chhajja' (over hanging cover) measuring 7.8 feet, had also
C been constructed unauthorizedly by the appellants. It was also
asserted, that the appellants had demolished the side pillars
of the constructed portion of the rented premises, and had also
removed both the side walls on which the entire roof, and upper
0
storeys were resting. It was also alleged, that the appellants
had demolished the front door wall, and had installed a loft in
the shop. Likewise, the appellants were alleged to have
demolished the back wall of the shop to increase.the length of
the tenanted premises.
E
F
3. The appellants entered appearance before the Rent
Controller and contested the eviction petition. For the said
purpose, the appellants filed a written statement on 7 .2.2008,
denying and disputing all the allegations made by the
respondents in the eviction petition.
4. Since one of the grounds on which the eviction of the
appellants was sought, was on account of non-payment of rent
with effect from January, 2007; the Rent Controller passed an
order dated 21.4.2008 under Section 15(1) of the Rent Act,
G requiring the appellants to deposit the undisputed arrears of
rent, and to pay future rent. The aforesaid order of the Rent
Controller is being extracted hereunder :-
H
DINA NATH (D) BYLRS. &ANR. v. SUBHASH CHAND
1571
SAINI &.ORS. [JAGDISH SINGH KHEHAR, J.]
"E-931/2007
A
21.04.08
Arguments heard u/s 15( 1) of DRC Act. The rate of rent
and the relationship is not in dispute between the parties
though the petitioner claims the arrears w.e.f. 01.01.2007
B
and the respondent states that he has paid rent upto
October, 2007.
Since the orders u/s 15( 1) of DRC Act are to be passed
on the admitted facts, the respondent is directed to pay
or deposit the arrears of rent w:e.f 01.11.2007 till date@ C
Rs.66/-pm within 30 days from today and further continue
to pay or deposit the future rent at the said rate month by
mo.nth before 15'h of each succeeding English Calendar
month.
SD/-
ARC/DELHl/21.04.2008"
A perusal of the order dated 21.4.2008 reveals, that
D
the Rent Controller having taken into consideration, the
E
assertion made in the written statement, that the appellants
have already paid rent from 1.1.2007 up to October 2007,
directed the appellants to pay rent only with effect from
1.11.2007. The arrears were ordered to be paid within 30 days
(of 21.4.2008). Future rent was ordered to be paid every month
F
(i.e., "month by month") before the 15th day of each succeeding
English calendar month.
5. On account of the Ron-compliance of the. order dated
21.4.2008, the respondents filed an application under Section
15(7) of the Rent Act on 28.4.2009, praying for striking out the G
defence of the appellants. The appellants filed a reply to the
aforesaid application on 17.8.2009. Before filing the aforesaid
reply, on 1.5.2009 i.e., on the very day the appellants came to
know of the filing of the application under Section 15(7) of the
.
.
I
H
1572
SUPREME COURT REPORTS
, [2014] 14 S.C.R.
A
Rent Act, the appellants deposited rent before the Rent
Controller, for the period from November, 2009 to July, 201 O.
In making the aforesaid deposit, the appellants had mistakenly
mentioned that the rent was being deposited from November,
2009, although they oughi to have deposited rent from
B
November, 2008. Immediately on realizing the aforesaid ·
mistake, the appellants again deposited rent before the Rent
Controller for the period from November, 2008 to October 2009
on 5.5.2009.
c
6. For an effective determination of the controversy
before us, it is essential to extract herein the factual position
indicated by the appellants in their reply dated 17 .8.2009 (to
the application filed by the respondents under Section 15(7)
of the Rent Act). Accordingly, paragraphs 3, 4 and 6 of the
o abovementioned reply, are being reproduced hereunder:-
E
F
"3. Para 3 of the application in so far it states about
contents of the written statement is a matter of record:
However, it is specifically denied that the respondent has
made any false statementorfumished a false information
before this Hon'ble Court. In fact the rent was paid from
Januarv 2007 to October 2007 to the petitioner No.1
but he deliberately did not issue any rent receipt and
because the respondent had no proof about the payment
of rent in writing. io avoid any kind of controversy, the
rent for the period with effect from Januarv 2007 onwards
was paid by respondent No.1 to petitioner No.1 vide
receipt dated 21.4.2008.
4. Para 4 of the application is admitted. It would not be
G
out of place to mention that the Petitioner No.1 used to
collect rent from the respondent No.1 not every month
but after 3 months or 6 months or years time. The
respondent No.1, atthe time when the order u/s. 15(1) of
DRC Act was passed, was not present in the Court.·
H
DINA NATH (D) BY LRS. & ANR. v. SUBHASH CHAND
1573
SAINI & ORS. [JAG DISH SINGH KHEHAR, J.]
However, passing of the order was duly communicated
A
through the clerk of the counsel to the respondent No.1.
In the evening of 21.4.2008 the Qetitioner No.1 12ersonally
went to the res12ondent No.1 and collected the rent from
him with effect from 1.1.2007 to 30.4.2008. He did not
adjust the rent already paid and has already submitted B
the rate of rent being too meager and the respondent
No.1 was not interested to enter into any controversy,
the rent for the period with effect from 1.1.2007 to
30.4.2008 was paid by the respondent No.1 to the c
petitionerNo.1 against Receipt No. 21 dated 21.4.2008
which also included the house tax for the years 20072008 and 2008-2009. The petiiioner No.1 also stated to
the respondent No. 1 that he may not deposit rent in the
court as he will directly receive the rent from him. by D
issuing receipts. The respondent No.1 being an old and
•
.,.
aged person, not knowing the intricacies of law and also
the repercussions of non-deposit of rent every month
believed the petitioner No.1 in good faith. Though on
21.4.2008 the respondent No. 1 offered to pay advance
E
rent for a years time yet the petitioner No.1 refused to
accept the same. It was, however, a fault on the part of
respondent No.1 for not depositing the rent in the court.
After 21.4.2008 the Qetitioner No.1 again collected the
rent for the month of May 2008 in the end of May 2008 F
but issued the receiQt subseguently which was dated
27 .6.2008. Thereafter desQite reguest of the res12ondent
No.1 the 12etitioner No.1 12rocrastinated the acce12tance
of rent and finally in the month of October 2008 he
acceQted the rent for the Qeriod with effect from 1.6.2008 G
to 31.10.2008 and again he did not issue a rent receiQt.
The rent receiQt was later on issued in the month of
December 2008 when the res12ondent No.1 asked for
the same, number of times. After October 2008 the
H
1574
SUPREME COURT REPORTS
[2014) 14 S.C.R.
A
petitioner No. 1 did not accept the rent from the
respondent No.2 because due to his illness the
respondent No.1 was not coming to the shop for some
time. It was only because of serious iliness of respondent
No.1, due to which the counsel could not be contacted
B
by him so as to deposit the rent in the court. On 28.4.2009
the petitioner No.1 taking advantage of the situation has
filed the present application.
xxx
xxx
xxx
c
6. Para 6 of the application is not admitted as such and
hence denied. As already submitted herein above the
rent till the month of March 2008 was paid in October
2008 itself but the petitioner No.1 deliberately issued
receipt in the month of December 2008 and now for his
D
· own deliberate attempt and the ignorance of respondent.·
No.1 the petitioner No.1 is trying to take advantage. There
has never been a deliberate attempt on the part of
respondent No.1 of noncompliance of the orders passed
by this Hon'ble Court but it was only account of
E
misrepresentation of petitioner No.1. non-intentional
violation occurred."
(emphasis is mine)
7. By an order dated 14.9.2009 the Rent Controller
F allowed the application filed by the respondents under Section
15(7) of the Rent Act, and thereby, struck off the defence of the
appellants in the pending eviction petition. Dissatisfied with
the order passed by the Rent Controller, the appellants
approached the Rent Control Tribunal. By an order dated
G 24.5.2010, the Rent Control Tribunal dismissed the appeal
preferred by the appellants. Dissatisfied, the appellants
approached the High Court of Delhi (hereinafter referred to as
"the High Court") by filing a petition under Article 227 of the·
Constitution of India, wherein, the appellants assailed the order
H passed by the Rent Controller dated 14.9.2009, as well as,
DINA NATH (D)BYLRS. &ANR. v. SUBHASH CHAND
1575
SAINI & ORS. [JAGDISH SINGH KHEHAR, J:]
the order of the Rent Control Tribunal dated 24.5.2010. The A
High Court dismissed the petition filed under Article 227 on
10.5.2011. It is, therefore, that the appellants approached this
Court, by filing a Petition for Special Leave to Appeal (C) no.
26941 of 2011, wherein we have now granted leave.
8. The question for this Court's consideration is, whether
it was just and appropriate for the succeeding courts (the Rent
Controller, Rent Control Tribunal and the High Court) to have
accepted the prayer made by the respondents, for striking out
B
the defence of the appellants, in the eviction proceedings. For
determining the issue in hand, it is essential to extract herein C
Section 15 of the Rent Act. The same is being reproduced
hereunder:-
"15. When a tenant can get the benefit of protection
against eviction. -
D
(1) In every proceeding of the recovery of possession of
any premises on the ground specified in clause (a) of
the proviso to sub-section (1) of Section 14, the
Controller shall, after giving the parties an opportunity
of being heard, make an order directing the tenant to ·E
pay to the landlord or deposit with the Controller within
one month of the date of the order, an amount
calculated at the rate of rent at which it was last paid
for the period for which the arrears of the rent were
legally recoverable from the tenant including the period
F
subsequent thereto up to the end of the month previous
to that in which payment or deposit is made and to
continue to pay or deposit, month by month, by the
fifteenth of each succe.eding month, a sum equivalent
to the rent at that rate.
G
(2) If, in any proceeding for the recovery of possession
of any premises on any ground other than that referred .
to in sub-section (1 ), the tenant contests the claim for,
eviction, the landlord may, at any stage of the
H
1576
A
8
c
D
E
F
G
H
SUPREME COURT REPORTS
. [2014) 14 S.C.R.
proceeding, make an ap~lication to the Controller for
an order on the tenant to pay to the landlord the amount
of rent .legally recoverable from the tenant and the
Controller may, after giving the parties an oppor-tunity
of being heard, make an order in accordance with the
provisions of the said sub--section.
(3) If, in any proceeding referred to in sub-section (1) or
sub-section (2), there is any dispute as to the amount
of rent payable by the tenant, the Controller shall, within
fifteen days of the date of the first hearing of the
proceeding, fix an interim rent in relation to .the
premises to be paid or deposited in accordance with
the provisions of sub-section (1) or sub-section (2),
as the case may be until the standard rent in relation
thereto is fixed having regard to the provisions of this·
Act, and the amount of arrears if any, calculated on
the basis of the standard rent shall be paid or
deposited by the tenant within one month of the date
on which the standard rent is fixed or such further time
as the Controller may allow iri this behalf.
(4) If, in any proceeding referred to in sub-section (1) or
sub-section (2), (there is any dispute as to the person
or persons to whom the rent is payable, the Controller
may direct the tenant to deposit with the Controller the
·amount payable by him under sub-section (1 )or subsection (2) or sub-section (3), as the case may be,
and in such a .case, no person shall be entitled to
withdraw the amount in deposit until the Controller
decides the dispute and makes an order for payment
of the same.
(5) If the Controller is satisfied that any dispute referred
to in sub-section (4) has been raised by a tenant for
reasons which are false or frivolous, the Controller may
order the defence against eviction to be struck out and
proceed with the hearing of the application.
'
DINA NATH (D) BY LRS. &ANR. v. SUBHASH CHAND
1577
SAINI & ORS. [JAG DISH SINGH KHEHAR, J.]
(6) If a tenant makes payment or deposit as required by A
sub-section (1) or sub-section (3), no order shall be
mad'e for the recovery of possession on the ground of
defa.ult in the payment of rent by the tenant, but the
Controller may allow such costs as he may deem fit to
the landlord.
B
(7) 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."
9. It is not a matter of dispute, that the Rent Controller,
had passed an order dated 21.4.2008 under Section 15(1) of
c
the Rent Act. By the above order, the Rent Controller had
required the appellants to pay arrears of rent to the respondents
from October 2007 upto date, within 30 days (i.e., by 21 ''of D
May, 2008). The appellants were required to pay future rent at
the rate of Rs. 66/- per month, "month by month", by the 1_5th
day of each succeeding English calendar month. Even though
I will deal with the actual details of the delay in payment of
future rent, "month by month", it is clear from the acknowledged
E
factual position disclosed by the appellants in their reply dated
17.8.2009, that there was delay in doing so. Despite thi~
acknowledged position, the issue that arises for consideration
is, whether the said delay would be sufficient by itself, in tenns
of the mandate contained under Section 15(7) of the Rent Act, . F
to strike out the defence of the appellants. Insofar as the instant .
issue is concerned reference may be made to the provision
itself (Section 15(7) of the Rent Act), which clearly uses the
word "may" with reference to striking out the defence of a tenant.
The use of the word "may'' postulates, that a discretion is vested G
with the Rent Controller to strike out (or not to strike out) the
defence of a tenant, who has committed breach of an order
passed under Section 15(1) of the Rent Act. It is therefore
apparent, that despite non-compliance by a tenant, of
directions issued under Section 15(1) of the Rent Act, there H
1578
SUPREME COURT REPORTS
(2014] 14 S.C.R.
A
would be situations wherein the defence of a tenant would not
be struck off. The issue in hand is no longer resintegra. This
Court has had various occasions to interpret Section 15(7) of
the Rent Act, wherein it has laid down the parameters to be
tak~n into consideration, while passing an order for striking
B
outthe defence of the tenant (under Section 15(7) of the Rent
Act). I have endeavoured to examine a few of those judgments,
in the following paragraph.
10.1. The power of the Rent Controller under Section
15(7) of the Rent Act to strike out a tenant's defence in an
C eviction petition on her failure to deposit rent, came to be
examined by this Court in Miss Santosh Mehta Vs. Om Prakash
and Others, (1980) 3 SCC 610. In the aforesaid judgment,
this Court held as under:-
D
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F
G
H
"3. 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
may n9t 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 extrem§? following upon
a mere failure to pay rent. First of all, there 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 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 cannot be converted
into the first resort; a punitive direction of court cannot
DINA NATH (D) BY LRS. & ANR. v. SUBHASH CHAND
1579
SAINI & ORS. [JAG DISH SINGH KHEHAR, J.]
be used as a booby trap to get the tenant out. Once this
A
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.
B
4. There is no indication whatsoever in the Act to show
that the exercise of the power of striking out of the defence
under Section 15(7) was imperative whenever the tenant
. failed to deposit or pay any amount as required by
Section 15. The provisions contained in Section 15(7) of C
the Act are directory and not mandatory. It cannot be
disputed that Section 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
D
penalty of non-payment or non-deposit. The effect of
striking out of the defence under Section 15(7) is that the
tenant is deprived of the protection given by
Section 14 and, therefore. the powers under
Section 15(7) of the Act must be exercised with due E
circumspection."
(emphasis is mine)
. 10.2. On the issue in hand, reference may also be made
tothejudgmentofthis Court in Kamla Devi Vs. Vasdev, (1995)
F
1 SCC 356. In the instant judgment, this Court opined that
sub-section (7) of Section 15 of the RentAct allows a discretion
to the Rent Controller, to strike out the tenant's defence, in case
of non-compliance of direction to deposit rent. It was clearly
opined, that Section 15(7) of the Rent Act did not postulate a G
mandatory provision for striking out the defence of the tenant,
on account of failure to make payment or deposit pursuant to
an order passed by the Rent Controller under Section 15(1) of
the Rent Act. While so holding, this Court observed as under:-
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SUPREME COURT REPORTS
[2014] 14 S.C.R.
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"17. We are unable to uphold this contention. In our view,
it is not obligatory for the Rent Controller to strike out the
defence of the tenant under Section 15(7) of the Delhi
Act, if the tenant fails to make payment or deposit as
directed by an order passed under Section 15(1 ). The
B
language of Sub-section (7) of Section 15 is that 'the
Controller may orderthe defence against eviction to be
struck out'. That clearly means. the Controller, in a given
case, may not pass such an order. It must depend upon
the facts of the case and the discretion of the Controller
C
whether such a drastic order should or should not be
passed.
D
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G
H
xxx
xxx
xxx
22. The unreasonableness of the construction suggested ·
by the appellant, is well illustrated by the case of Santosh
Mehta v. Om Prakash and Anr: (1980) 3 SCR 325 . In
that case, the tenant was a working woman, who had
engaged an advocate to represent her in a dispute with
the landlord. She duly paid all the arrears of rent by
cheque or in cash to her advocate, who failed to deposit
the amount or to pay to the landlord, as directed by the
Rent Controller. On an application made by the landlord,
the Rent Controller struck out the defence of the tenant
under Section 15(7) of the Delhi Rent Control Act. A
Bench of two Judges of this Court held that the exercise
of power of striking out the defence under
Section 15(7) was not imperative whenever the tenant
failed to deposit or pay any amount as required by
Section 15. The provisions contained in Section 15(7) of
the Act were directory and ·not ·mandatory.
Section 15(7) was a penal provision and gave the Rent
Controller discretionary power in the matter of striking
out of the defence. It was ultimately held that the order of
the Rent Controller striking out the defence of the tenant
DINA NATH (D) BY LRS. &ANR. v. SUBHASH CHAND
1581
SAINI & ORS. (JAGDISH SINGH KHEHAR, J.]
in the facts of that case was improper. The consequential A
order of eviction was set aside.
23. We are unable to uphold the contention of the
appellant that the case of Ram Murti v. Bhola Nath and
Anr.: (AIR (1984) SC 1392), was wrongly decided and
reliance was wrongly placed in that case on the decision
B
of a Bench of three Judges of this Court in the case of
Shyamcharan Sharma v. Dharamdas: (1980) 2 SCR
334. In our view, Sub-section (7) of Section 15 of the
Delhi Rent Control Act, 1958 gives a discretion to the
Rent Controller and does not contain a mandatory C
provision for striking out the defence of the tenant against
eviction. The Rent Controller may or may not pass an
order striking out the defence. The exercise of this
discretion will depend upon the facts and circumstances
of each case. If the Rent Controller is of the view that in
D
the facts of a particular case the time to make payment
or deposit pursuant to an order passed under Subsection (1) of Section 15 should be extended, he may
do so by passing a suitable order. Similarly, if he is not
satisfied about the case made out by the tenant. he may E
order the defence against eviction to be struck out. But.
the power to strike out the defence against eviction is
discretionary and must not be mechanically exercised.
without any application of mind to the facts of the case."
F
(emphasis is mine)
10.3. On the issue in hand, reference was also made to
the decision rendered by this Court in Jain Motor Car Co.,
Delhi Vs. Swayam Prabha Jain, (1996) 3 SCC 55. Therein,
this Court examined a case where a single default had been
G
committed by the tenant. The tenant had not deposited rent
for the month of February 1972. On the issue of striking out
the defence of the tenant under Section 15(7) of the Rent Act,
this Court held as under:-
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SUPREME COURT REPORTS
[2014] 14 S.C.R.
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"21.
Applying the above principles to the instant case,
it cannot but be held that the view expressed by the Rent
Controller, the Rent Control Tribunal as also the High
Court that the time under Section 15(1) for depositing
the rent could not be extended nor could the delay be
B
condoned was wholly erroneous. The whole approach,
therefore, from the beginning, was based on wrong
premises. The High Court went a step further. While the
Rent Controller and the Rent Control Tribunal had not
struck out the defence of the appellant on the ground that
c
15 days' default in depositing the rent for February, 1972
was not wilful or contumacious, the High Court, oh an
corneous view, struck out the defence. We have already
noticed above that striking out of defence under
Section 15(7) of the Act is in the discretion of the Rent
D
Controller. Since the discretion appears to have been
properly exercised by the Rent Controller as also by the
Rent Control Tribunal. the High Court, in the particular
circumstances of the case. was not justified in interfering
with that discretion and striking out the defence of the
E
appellant. The High Court, while considering this
question, has observed as under:
'In the other appeal S.A.O. No. 193 of 1973 of the
landlord challenging the Judgment and order of the
Tribunal dismissing his application under
F
Section 15(7) of the Act, the defence of the appellant
tenant was not struck off by the Controller. In other
words the tenant was allowed to defend the eviction
case. He was allowed to lead evidence and take part
during the trial of the eviction proceedings. The
G
appellant had claimed condonation for the purpose of
Section 15(7) of the Acton the ground that the attorney
of the appellant had fallen ill and the partner of the firm
Ajit Prasad had forgotten the date of deposit on
account of being busy in connection with the election
H
DINA NATH (D)BYLRS. &ANR. v. SUBHASH CHAND
1583
SAINI & ORS. [JAG DISH SINGH KHEHAR, J.]
in which his brother was also a candidate. These facts
A
are not sufficient to condone the delay in deposit of
rent. These acts amount to negligence on the part of
the appellant which is a partnership firm. The attorney
had fallen ill and one partner had forgotten the date of
deposit, there were other partners and other officials B
of the firm who ought to have taken steps to deposit
the rent within time. I am, therefore, of the view that it
wa.s not a fit case for refusing to strike off the defence
of the appellant tenant under Section 15(7) of the Act.
I, therefore, set aside the Judgment and order of the c
Tribunal and the Controller and strike off the defence
of the appellant.'
22. The High Court thus struck out the defence by
substituting its own discretion in place of the Rent
Controller and the Tribunal both of whom had held that D
the default by the appellant was _not wilful. The main
question was whether the appellant was entitled to
extension of time in depositing the rent or should he be
evicted for not depositing the rent for only one month in
time particularly when the default was not wilful or E
contumacious. At one time. we were inclined to remand
the case to the Rent Controller so that the appellant's
plea regarding extension of time in depositing the rent
for the month of February. 1972 may be considered but
having regard to the fact that the appellant had already
F
pleaded those facts which have already been considered
by the High Court. we feel that it would not be in the
interest of justice now to remand the case as the High
Court appears to be justified in coming to the conclusion
that the appellant was negligent and careless as the rent G
could still be deposited by any other partner. if the attorney
had fallen ill or one partner had forgotten the date of
deposit. Any other explanation offered by the appellant
would be obviously an after thought and, therefore, as
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[2014) 14 S.C.R.
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pointed out earlier, it will not serve any purpose to remand
the case to the Rent Controller. The result is that the
appeal has to be dismissed and is hereby dismissed
but without any order as to costs allowing three months
time to the appellant to vacate the premises on filing the
B
usual undertaking to this effect in this Court failing which
the respondent-landlady will be entitled to recover
possession from the appellant through police force."
(emphasis is mine)
c
A perusal of the above conclusions, recorded in Jain
Motor Co., Delhi's case (supra) reveals, that even a single
willful default, could be sufficient in striking out ·a tenant's
defence.
10.4: The interpretation with reference to striking out the
D defence of a tenant under Section 15(7) of the ReQtAct, also
came up for consideration before this Court in Aero Traders
(P) Ltd. Vs. Ravinder Kumar Suri, (2004) 8 SCC 307, wherein,
this Court opined as under:-
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"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
necessari to make a sound, fair and just determination.
and a knowledge of the facts upon which the discretion
DINA NATH (D) BY LRS. & ANR. v: SUBHASH CHAND
1585
SAINI & ORS. [JAG DISH SINGH KHEHAR, J.]
may properly operate. (See 27 Corpus Juris Secundum A
page 289). When it is said that something is to be done
within the discretion of the authorities that 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 B
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 C
set up a totally false plea of his having sent the rent through
cheques to the landlord.Apartfrom 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 D
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 paltrv 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
E
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."
F
(emphasis is mine)
10.5. L;:1<:t of all reference may be made to the recent
decision of this Court inAmrit Lal Vs. Shiv Narain Gupta, (2010)
15 SCC 510. In the instant case the Rent Controller in exercise G
of the discretion vested in him under Section 15(7) of the Rent
Act, had struck off the defence of the tenant.