Santosh Mehta Vs. Om Prakash & ANR
[1980] INSC 66 (2 April 1980)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
SEN, A.P. (J)
CITATION: 1980 AIR 1664 1980 SCR (3) 325 1980
SCC (3) 610
CITATOR INFO :
R 1983 SC1010 (15) RF 1984 SC1392 (9)
ACT:
Delhi Rent Control Act, 1958, Sections 15(7)
scope of Striking of defence for non-payment of arrears of rent, Court's duty.
Delhi Rent Control Act, 1958-Appeal against
order striking out defence-Correct section applicable is section 38 and not
section 25B, of the Delhi Rent Control Act.
HEADNOTE:
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 arrears of rent by cheque or in cash to her advocate who failed
either to deposit the Court or to pay to the landlord. The Rent Controller
refused to look into this and struck off her defence under section 15(7) of the
Delhi Rent Control Act, 1958. The appeal was dismissed as not maintainable in
view of section 25B of tho Act. Hence the appeal by special leave.
Allowing the appeal, the Court.
HELD :1. Rent Control laws are basically
designed to protect tenants because scarcity of accommodation is a nightmare
for those who own none and, if evicted, will be helpless. Even so, the
legislature has provided some grounds for eviction, and the Delhi law contains
an extreme provision for striking out together the defence of the tenant which
means that even if he has excellent pleas to negative the landlord's claim the
Court will not hear him.
Obviously, this is a harsh extreme and having
regard to the benign scheme of the legislation 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 vested, not a mandate imposed in Section
15(7) of the Delhi Rent Control Act. [327 C-D]
2. If a socially informed perspective is
adopted while construing the provision of Section 15(7), then it will be plain
that the Controller is armed with facultative power.
He may, or may not strike out the tenant's
defence. A Judicial discretion has built-in-self-restraint, has the scheme of
the statute in mind, cannot ignore 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 6 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 content,
indicates willful failure, deliberate default or volitional non-performance.
Secondly, the Section provides no automatic
weapon but prescribes a wise discretion, inscribes no mechanical conse- quence but
invests a power to overcome intransigence. Thus, if a tenant fails or refuses
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 resort
cannot be converted into tho first resort a punitive direction of court 326
cannot be used as a booby trap to get the tenant out. Once this teleological
interpretation dawns, the mist of misconception about matter-of-course
invocation of the power 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-B]
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 amount as required by section 15. The provisions
contained in s. 15(7) of the Act are directory and not mandatory. It cannot be
disputed that s.15(7) is a penal provision and given to the Controller
discretionary power in the matter of striking out of the defence, and that in
appropriate cases, the Controller may refuse to visit upon the tenant the
penalty of non-payment or non-deposit. The effect of striking out of the
defence under s.15(7) is that the tenant is deprived of the protection given by
s.14 and, therefore, the powers under s.15(7) of the Act must be 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 the present Act there is a deliberate modification of law in
favour of the tenant. Under Section 15(7) of the Act, it is in the liberal
discretion of the Rent Controller, whether or not to strike out the defence.
The Court should be aware of the milieu before exercise of this extreme power.
[328 B-D, 329 A-B] In the instant case, the tenant did all she could by paying
to the advocate the sums regularly but the latter betrayed her and perhaps helped
himself. To trust one's advocate is not to sin deliberately. She was innocent
but her advocate was innocent. No party can be punished because her advocate
behaved unprofessionally. The Rent Controller should have controlled himself by
a plain look at the eloquent facts and not let down the helpless woman who in
good faith believed in the basic ethic of a noble profession. She did not fail
to pay or deposit and, in any view, no case for punitive exercise of discretion
has been made out. The conclusion necessarily follows that the striking out of
the defence was not legal and the appellant should have been given an
opportunity to contest the claim of the landlord for her eviction. A sensitized
judicial appreciation was missing and unfortunately, the High Court did not
closely look at this facet of the issue. [329E-H] V. K. Varma v. Radhey Shyam,
A.I.R. 1964 S.C. 1370, referred to.
4. An order striking out the defence is
appealable under s.38. So this order is appealable. The reliance on s. 25B(8)
to negative an appeal is inept because this is not an order under that special
section but one under s. 15.
Moreover, s.25B(10) preserves the procedure
except to the extent contra-indicated in s.25B. Negation of a right of appeal
follows from s.25B(8) only if the order for recovery is made 'in accordance
with the procedure specified in this Section' (i.e. 25B). Here the
dispossession was not ordered under the special provision in s.25B but under
s.15. Nor can the theory of merger salvage the order because the legality of
the eviction order depends on the legality of the order under s.15(7). Once
that order is found illegal what follows upon that cannot be sustained. [330
A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1445 of 1979.
Appeal by Special Leave from the Judgment and
order dated 17th October, 1978 of the Delhi High Court in Revision Petition No.
689 of 1978.
327 Mrs. Shyamala Pappu, P. H. Parekh, Rain
Karanjawala and Miss Vineeta Caprihan for the Appellant.
B.D. Sharma, for the Respondents.
The following Judgment of the Court was
delivered by KRISHNA IYER, J.-A short but interesting point affecting the
validity and propriety of an order under s.
15(7) of the Delhi Rent Control Act, 1958
(for short, the Act), has been raised by counsel for the appellant. The
decision of this question is of importance and we regard it as necessary to
clarify the position so that the error committed by the trial judge may not be
repeated.
Rent Control laws are basically designed to
protect tenants because scarcity of accommodation is a nightmare for those who
own none and if evicted, will be helpless. Even so, the legislature has
provided some grounds 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 claim the court
will not hear him. Obviously, this is a harsh extreme and having regard to the
benign scheme of the legislation 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 imposed. Section 15(7) reads
thus:
"If a tenant fails to make payment or
deposit as required by this section, the Controller may order the defence
against eviction to be struck out and proceed with the hearing of the
application." We must adopt a socially informed perspective while
construing the provisions and then it will be plain that the Controller is
armed with a facultative power. He may, or not strike out the tenant's defence.
A judicial discretion has built-in-self-restraint, has the scheme of the
statute in mind, cannot ignore 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 esteem following upon a mere failure to pay rent.
First of all, there must be a failure to pay
rent which, in the context, indicates willful failure, deliberate default or
volitional non-performance. Secondly, the Section provides no automatic weapon
but prescribes a wise discretion, inscribes no mechanical consequence but
invests a power to overcome intransigence. Thus, if a tenant fails or refuses
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. The last
resort 328 cannot be converted into the first resort; a punitive direction of
court cannot be used as a booby trap to get the tenant out. Once this
teleological interpretation dawns, the mist of misconception about matter
of-course invocation of the power to strike out will vanish. Farewell to the
realities of a given case is playing truant with the duty under. J lying the
power.
There is no indication whatsoever in the Act
to show that the exercise of the power of striking out of the defence under s.
15(7) was imperative whenever the tenant failed to deposit or pay any amount as
required by s. 15.
The provisions contained in s. 15(7) of the
Act are directory and not mandatory. It cannot be disputed that s.
15(7) is a penal provision and gives to the
Controller discretionary power in the matter of striking out of the defence,
and that in appropriate cases, the Controller may refuse to visit upon the
tenant the penalty of nonpayment or non-deposit. The effect of striking out of
the defence under s. 15(7) is that the tenant is deprived of the protection
given by s. 14 and, therefore, the powers under s. 15(7) of the Act must be
exercised with due circumspection.
It will be noted that s. 15(7) of tho Act is
not couched in mandatory language. It uses the word 'may'. The difference in
the language of s. 15(7) with that of s. 13(5) of the repealed Act is significant
and indicates that in the present Act there is a deliberate modification of law
in favour of the tenant. In this connection, it would be pertinent to refer to
the observations of the Court in V. K Verma v. Radhey Shyam.(1) In that case,
the Court compared s. 13(5) of the Delhi Rent Control Act, 1952 which laid down
that on the failure of a tenant to deposit the arrears of rent within the
prescribed time, "the ' court shall order the defence against ejectment to
be struck out." with s.
15(7) of the Delhi Rent Control Act, 1958
which substitutes 'may' and observed:
"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 clearly deliberate modification in law in favour of the tenant.
Under the old Act the Court had no option but
to strike out the defence if the failure to pay or deposit the rent is proved;
under the new Act the Controller who takes the place of the Court has a
discretion in the matter, so that that in proper cases he may refuse to strike
out the defence." 329 These observations leave no doubt that under s.
15(7) of the Act, it is in the liberal discretion of the Rent Controller
whether or not to strike out the defence.
We stress the need for the Court to be aware
of the milieu before exercise of this extreme power because the present case is
illustrative of its erroneous use.
The facts in this case cry for intervention,
if one may say so. The appellant is a working woman who has to get to office
and be there between 9.00 a.m. to 5.00 p.m.
Naturally, she has a difficulty in appearing
in court for every hearing and so she prudently engaged an advocate to appear
on her behalf and take proper steps to protect her interests. It is common
ground that all the arrears of rent had been paid by her by cheque or in cash
to her advocate.
It also transpires that the amounts received
by cheque or in cash by the advocate were not deposited in court or paid to the
landlord. It is further seen that when the tenant found that the amounts were
not paid to the landlord by her advocate, she made a complaint to the Bar
Council of Delhi and the matter is pending inquiry. From these circumstances,
we are inclined to conclude-indeed, that is the only reasonable conclusion in
the circumstances-that the tenant has not failed to pay and, in any case, the
exercise of judicial discretion must persuade the court not to strike out the
defence of the tenant but give her fresh opportunity to make deposit of the
entire arrears due. In the present case the deposit has eventually been made in
this Court when it directed such deposit to be made.
The tenant did all she could by paying to the
advocate the sums regularly but the latter betrayed her and perhaps helped
himself. To trust one's advocate is not to sin deliberately. She was innocent
but her advocate was innocent. No party can be punished because her advocate
behaved unprofessionally. The Rent Controller should have controlled himself by
a plain look at the eloquent facts and not let down the helpless woman who in
good faith believed in the basic ethic of a noble profession. She did not fail
to pay or deposit and, in any view, no case for punitive exercise of discretion
has been made out. The conclusion necessarily follows that the striking out of
the defence was not legal and the appellant should have been given an
opportunity to contest the claim of the landlord for her eviction. A sensitized
judicial appreciation was missing and, unfortunately, the High Court did not
closely look at this facet of the issue. On the other hand, the appeal was
dismissed as not maintainable in view of s. 25B.
330 An order striking out the defence is
appealable under s. 38. So this order is appealable. The reliance on s. 25B(8)
to negative an appeal is inept because this is not an order under that special
section but one under s. 15.
Moreover, s. 25B(10)preserves the procedure
except to the extent contra-indicated in s. 25B. Negation of the right of appeal
follows from s. 25B(8) only if the order for recovery is made 'in accordance
with the procedure specified in this section' (i.e. 25B). Here the
dispossession was not ordered under the special provision in s. 25B but under
s. 15. Nor can the theory of merger salvage ' the order because the legality of
the eviction order depends on the legality of the order under s. 15(7). Once
that order is found illegal what follows upon that cannot be sustained.
In the view we take of the effect of s. 15(7)
we allow the appeal in exercise of our jurisdiction under Article 136 and
direct the case to go back to the Rent Controller.
Having regard to the fact that the landlord
has not been able to make out his case of bona fide requirement for long
because of the pendency of these proceedings, we direct the Rent Controller to
dispose of the petition for eviction expeditiously and, as far, as possible,
within four months from today.
Any further arrears, if accrued, will be paid
under the directions of the Rent Controller on or before a date fixed by him.
The order for eviction passed in this case after striking out the defence must
fail 13: in view of our holding that the order striking out the defence itself
is , illegal. Necessarily, the orders of the Rent Controller and of their High
Court must be and are hereby set aside. The parties will appear before the Rent
Controller on 16th April, 1980. There will be no order as to costs.
S.R. Appeal allowed.
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