*Santosh Mehta v. Om Prakash (1980) 3 SCC 610
*Not Printed
Civil Appeal No. 1445 of 1979,, decided on 02/04/1980
Headnote
(A) Delhi Rent Control Act (59 of 1958) , S.15(7)— Striking out defence – Power is discretionary – Failure to pay rent coupled with defence or gross negligence of tenant must exist – Payment of rent by tenant to his advocate – Advocate in turn out depositing same in court – Defence could not be struck out. C. R. No. 689 of 1978, D/-17-10-1978, (Delhi) Reversed.
Striking out defence of a tenant is a harsh extreme and having regard to the benign scheme of the legislation this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent. That is why a discretion is vested, not a mandate imposed. 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 must be 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 intrasigence. 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. It will be noted that S. 15 (7) is not couched in mandatory language. It uses the word “May”. There is no indication whatsoever in the Act to show that the exercise of the power of striking out of the defence under S. 15 (7) was imperative whenever the tenant failed to deposit or pay any amount as required by S. 15. The provisions contained in S. 15 (7) of the Act are directory and not mandatory. 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) must be exercised with due circumspection.(Para 2 3 4 5)
A tenant who was a working woman regularly paid rent to her advocate but he in turn did not deposit the same in court or paid to the landlord. Held in the circumstances that it could not be said that she failed to pay or deposit and in any view no case for punitive exercise of discretion to strike out the defence had been made out.
(B) Delhi Rent Control Act (59 of 1958) , S.15(7), S.25B, S.38— Striking out defence of tenant – Order falls under S. 15 and not under S.25-B – Appealable under S. 38 – S. 25-B does not operate as bar. C. R. No. 689 of 1978, D/-17-10-1978, (Delhi) Reversed.(Para9) (Para 9)
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