LexSANTOSH MEHTA versus OM PRAKASH AND ANR.
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( 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 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 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 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 E G B 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 fa
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