SUDERSHAN LAL WADHAWAN Vs. DEVI DAS

JUDGEMENT

(1.) [Respondent had sued the appellant for eviction on various grounds on 10.6.1964. Rent Controller on 27.1.66 passed an order U/S 15 (2) that arrears of rent should be deposited within a month and monthly rent by the 15th of following month. Rent was deposited in time upto July, 1966. then monthly rent was not deposited from 1.8.65 to 30.8.68 for 23 months. In July, 68 rent was deposited from August, 66 to December, 68. Again there was no deposit from January, 69 to April, 69. On 19.5.69, landlord applied for striking out of defence of appellant and appellant deposited rent from January, 69 to June, 69 on 21.5.69. Rent Controller held that as tenant had deposited all the rent due though late, his defense should not be struck out. In appeal the Tribunal held that there was no justification for not depositing monthly rent in time and accepted the appeal. Tenant appealed to the High Court. It was dismissed.] Para 5 of the Judgement is :-

(2.) MR. Mahajan, the learned counsel for the respondent, contended that there was no justification at all for the tenant to have defaulted in making payment of the rent month to month for the period from August, 1 966 to 31-7-68 and then from January to April, 1969. He submits that though section 15 (7) is discretionary in the sense that it is not incumbent on the Rent Controller to pass an order striking out the defence of tenant if there is a default by a tenant in the payment of rent as directed by section 15 (2) of the Act the same is not an uncanalised discretion as the discretion has to be exercised judicially and in accordance with law and not whimsically. It is his contention that no reasons were advanced and no explanation has been given as to why the appellant defaulted in the payment of rent month to month for all this period. His contention is that the only ground on which the trial court refused to pass an order striking out the defence was that the tenant had paid the rent later on. According to the learned counsel the Act does not contemplate that the tenant can with impunity go on making default and not comply with the directions given under section 15 (2) of the Act, but later on when an application is moved for striking out his defence, plea that no order should be passed against him only on the ground that he has deposited the rent. According to the learned counsel such a plea will make the provision of section 15 (7) of the Act completely nugatory because it would be a very rare case where a tenant would not pay up his rent when an application is moved. He submits that something more than mere deposit is necessary to be proved by the tenant before discretion can be exercised in his favour by not striking out his defence. In my view the submission of the learned counsel for the respondent is correct and the tenant in order to persuade the Rent Controller not to pass an order striking out his defence under section 15 (7) of the Act must give some reasonable explanation indicating why he did not comply with the order passed by the Rent Controller. He cannot be allowed to disregard the directions given with impunity and hope to avoid the legal consequence of section 15(7) of the Act merely by paying and depositing the amount when action is sought to be taken against him under section 15(7). A clear direction was made by the Rent Controller by his order dated 27-1-66. The appellant was directed to pay rent for month to month in future. He defaulted every time in not depositing the rent month to month from 1-8 66 to 30-6-68 and again from January to April, 1969. Even during the course of the arguments before me no explanation was forthcoming as to what reason was there for his default. In such circumstances it seems to me that the Rent Control Tribunal was justified in holding that the discretion exercised by the Rent Controller was perverse and cannot be upheld. If the tenant refused to comply with the order, the court would be justified in striking out the defence as was upheld in B. C. Kame v. Nemi Chand Join. 1970 R.C.I. 475. Where it is found that there is a defau lt on the part of the tenant to deposit the amount as directed by section 15 (2) he becomes liable to have an order passed against him under section 15 (7) of the Act. No doubt the court has a discretion in the matter but as held in Sheo Kumar v. Lahrisingh 1969. RCJ 263 that such discretion has to be exercised judicially having regard to the circumstances of each case. It was also held in that case that before refusing to strike out the defence the court should consider whether the tenant made out any circumstance for condonation of the default on his part. In the present case nowhere during these proceedings has any reason or circumstance been mentioned explaining or justifying the default committed by the tenant in depositing the amount as directed by the Rent Controller. It is true that striking out of the defence is a very serious matter and may be restored to sparingly. But in a case like the present where the appellant has contumaciously committed over 27 defaults in the payment of rent and when the same is accompanied by complete lack of any explanation much less justification there can be no alternative Left but to strike out the defence of the appellant. After all a person cannot be permitted to treat with such scant respect and indifference the orders passed by the courts. When the record is bereft of any such explanation it is impossible to accept the argument that as an order under section 15 (7) is discretionary it is open to the Rent Controller to refuse to pass an order striking out the defence on his personal whims. In my view, therefore the Rent Control Tribunal was justified in setting aside the order of l he Rent Controller.