Rent Controller's Power To Strike Out Defence Of Tenant On Failure To Pay Rent Is Discretionary: SC [Read Judgment]

Mere failure to pay rent on the part of the tenant is not enough to justify an order striking out the defence and 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, the bench comprising Justice Arun Mishra, Justice MR Shah and Justice Ajay Rastogi held.

The bench in Dina Nath (D ) vs. Subhash Chand Saini further held that the discretion to be exercised 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 said:

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.

Comparing Section 13(5) of the Act and Section 15(7) of the Delhi And Ajmer Rent Control Act, 1958 the bench noted that, unlike the statutory prescription in the latter, the Rent Controller under the Act 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.

The change of the words from "The Court shall order the defence against ejectment to be struck out" to the words "the Controller 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.

Referring to various earlier judgments, the bench answered the issue as follows:

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.

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