KAMLA DEVI (SMT) V. VASDEV, AIR 1995 SC 985
FACTS
The appellant, Smt. Kamla Devi, is the owner of a Shop. The shop was let out to the respondent. The respondent defaulted in payment of rent. The appellant sent a demand notice on 18-5-1981 upon the respondent for recovery of arrears of rent. The respondent neither paid nor tendered the arrears of rent within the period of two months after the service of the demand notice.
On or about 2-8-1982, the appellant filed an eviction petition under clause (a) of sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958. It was admitted in the written statement that rent was due from 1-1-1980.
PROCEDURAL HISTORY
Additional Rent Controller: directed the respondent to pay entire arrears within one month of the passing of this order and continue to pay subsequent rent month by month the 15th of each succeeding month.
Thereafter the respondent paid a sum of Rs. 500 to the appellant promising to pay the arrears before expiry of the period stipulated in the order. The respondent, however, did not pay the arrears as promised. On 11-4-1984 the appellant filed an application under sub-section (7) of Section 15 of the Delhi Rent Control Act, 1958 for striking out the defence and to proceed with the hearing of the application on the ground that the tenant had failed to make payment or any deposit of the arrears of rent.
Additional Rent Controller: passed an eviction order in the favour of the petitioner.
Tribunal: remanded the case back to the Rent Controller to consider whether the delay in deposit of arrears of rent amounting to Rs. 2150 is liable to be condoned or not before deciding whether the appellant deserves to get the benefit of Section 14(2) or has rendered himself liable to be evicted.
On remand: The Rent Controller condoned the delay. It was held that the respondent was entitled to get the benefit of the provisions of Section 14(2) of the Act.
Kamla Devi appealed to the Tribunal. The only ground urged before the Tribunal was that there was no reason for condonation of the delay and the Additional Rent Controller should have struck out the defence of the respondent. The Tribunal held after review of the facts that the order of striking out the defence was uncalled for. The tenant was rightly given the benefit of Section 14(2) of the Act, it being a case of first default.
High Court: dismissed the appeal of Kamla Devi.
ISSUE
Whether on the failure on the part of the tenant to carry out the direction given by the controller u/s 15(1) of the Act, the landlord is entitled straightway to an order for striking out the defence of the tenant and consequently an order of eviction for the tenant?
JUDGEMENT
The court held,
It is not obligatory for the Rent Controller to strike out the defence of the tenant under Section 15(7) of the Delhi Act, if the tenant fails to make payment or deposit as directed by an order passed under Section 15(1). The language of sub-section (7) of Section 15 is that "the Controller may order the defence against eviction to be struck out". That clearly means, the Controller, in a given case, may not pass such an order. It must depend upon the facts of the case and the discretion of the Controller whether such a drastic order should or should not be passed.
Court referred to the similar view taken in Shyamcharan Sharma case.
Court further referred the case of Santosh Mehta v. Om Prakash, wherein it was held that the exercise of power of striking out the defence under Section 15(7) was not imperative whenever the tenant failed to deposit or pay any amount as required by Section 15. The provisions contained in Section 15(7) of the Act were directory and not mandatory. Section 15(7) was a penal provision and gave the Rent Controller discretionary power in the matter of striking out of the defence.
Therefore, the appeal failed and was dismissed.