Supreme Court

Dina Nath (D) by L.Rs. and Ors. Vs. Subhash Chand Saini and Ors.

MANU/SC/1310/2019

24.09.2019

Tenancy

Power to strike out the defence vested in the Rent Controller is discretionary and not essential

The instant appeal has been filed against the judgment and order passed by the High Court at the instance of the Appellants (tenants) under Article 227 of the Constitution of India upholding orders of the Rent Controller striking out defence of the Appellants on account of alleged failure to pay the rent.

The moot question arises for consideration is whether the power vested with the Rent Controller under Section 15(7) of the Delhi Rent Control Act, 1958 is discretionary and has been judiciously exercised in the facts of the instant case in striking out the defence of the Appellants (tenants) in the eviction proceedings.

The inevitable result on comparison of Section 13(5) of the Delhi And Ajmer Rent Control 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.

In Smt. Kamla Devi v. Shri Vasudev, this Court reiterated that the power to strike out the defence simply vested the Rent Controller with the discretion to do so. It was not mandatory for the Rent Controller to strike out the defence simply because a default had occurred. It is imperative that exercise of discretion vested with the authority obviously depends upon the facts and circumstances of each case and is not open to be exercised under the Rule of thumb.

It clearly emerges from the exposition of law that 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.

It clearly manifests from record that on the date of the order passed by the Rent Controller dated 21st April, 2008 itself, the entire arrears as directed to be deposited by the Appellants stood paid. The facts and circumstances of the case on hand, do not suggest any negligence, defiance or contumacious non-payment of the amount payable to the landlord to warrant the taking of that "exceptional step" which is bound to render the tenant defenceless in his contest against the Respondents-landlord. The decision of the Rent Controller and confirmed by the Single Judge of the High Court is set aside. The appeal is allowed.

Relevant

Smt. Kamla Devi v. Shri Vasudev MANU/SC/0192/1995

Tags : Defence Striking off Legality

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