DINA NATH (D) BY LRS & ANR. versus SUBHASH CHAND SAINI & ORS.

Citation: [2019] 12 S.C.R. 255 · Decided: 24-09-2019 · Supreme Court of India · Bench: ARUN MISHRA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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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 Rent
Controller to strike out defence of the tenant, pending eviction
petition – Nature of – Held: Power vested u/s. 15(7) is discretionary
and not mandatory – It depends on contumacious or deliberate
default and must be construed harmoniously so as to balance the
rights and obligations of the tenant and the landlord – Power u/s.
15(7) being an exception, is to be exercised with due care and
circumspection – On facts, on the date of the order passed by the
Rent Controller itself, the entire arrears as directed to be deposited
by the tenants stood paid and also on the date of the order passed
by the Rent Controller striking out his defence, rent for the entire
intervening period and even beyond had been paid – Thus, the
charge of contumacious failure and deliberate default in making
payment levelled against the tenants is ill founded – Decision of the
Rent Controller as upheld by the High Court, striking out defence
of the tenant has not been exercised judiciously and with
circumspection and thus, is unsustainable and set aside.
Allowing the appeal, the Court
HELD: 1.1 In Section 13(5) of Delhi and Ajmer Rent
Control Act, 1952 the language was that on the failure of the
tenant to deposit the rent, in terms of the mandate of law, “the
Court shall order the defence against ejectment to be struck off”.
In the Delhi Rent Control Act, 1958, Section 15(7) deals with the
matter in case of failure of the tenant to make the payment for
deposit as required by the Act. The Rent Controller has a
discretion to consider the facts and circumstances of each case
and exercise his discretion judiciously in accordance with law.
The change of the words from “the Court shall order the defence
against ejectment to be struck out” to the words “the Controller
 [2019] 12 S.C.R. 255
255
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SUPREME COURT REPORTS
[2019] 12 S.C.R.
may order the defence against eviction to be struck out” is a
deliberate modification in law in favour of the tenant. Under the
Act 1952, the Court had no option but to strike out the defence if
the failure to pay or deposit the rent is proved; under the Act,
1958, the Controller who takes the place of the Court has a
discretion in the matter, so that in proper cases, even if there is
a default in making the payment of rent, but if he is satisfied on
the 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, 1958
be that the Court would not be bound to strike out the defence
against ejectment in case of default in payment 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 the facts
of each case while exercising its discretion which obviously has
to 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 not
enough to justify an order striking out the defence. It is only a
wilful failure or deliberate default or volitional of non–performance
that can call for the exercise of the extraordinary power vested
in the Court. More importantly, the plentitude of the discretionary
power of the Court under Section 15(7) of the Act, 1958 is with
the Rent Controller whether or not to strike out the defence,
needless to say that the effect of striking out the defence under
Section 15(7) of Act, 1958 is that the tenant be deprived of the
protection available to him under Section 14 and it is imperative
that such power vested with the Rent Controller under Section
15(7) of the Act, 1958 must be exercised with due care and
circumspection. The power vested under Section 15(7) of the
Act, 1958 is discretionary and not mandatory and depends on
contumacious or deliberate default and must be construed
harmoniously so as to balance the rights and obligations of the
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. [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 by
the Rent Controller

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