JUDGMENT

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.

2. 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 landlords 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."

3. We must adopt a socially informed perspective while construing the provisions and then it will be plain that the Controller is armed with a facilitative power. He may or may not strike out the tenants 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 partys 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 a failure to pay rent which, in the context, indicates wilful 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 cannot be converted into the first resort; a punitive direction of court cannot be used as a bobby 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.

4. 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 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 power under S. 15(7) of the Act must be exercised with due circumspection.

5. It will be noted that S.15 (7) of the Act is not couched in mandatory language. It uses the word may. The difference in the language of S.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. In this connection, it would be pertinent to refer to the observations of the