IMPORTANT POINT
Power vested under Section 15(7) is discretionary and not mandatory. It 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. It must be exercised with due care and circumspection.

JUDGMENT :

Rastogi, J.

1. The instant appeal has been filed against the judgment and order dated 10th May, 2011 passed by the High Court of Delhi in Civil Miscellaneous (M) No. 44 of 2011 at the instance of the appellants (tenants) under Article 227 of the Constitution of India upholding orders of the Rent Controller striking out defence of the appellants on account of alleged failure to pay the rent.

2. The matter earlier was heard by a two Judge Bench of this Court and there was a unanimity on the principles of law that the power to strike out the defence vested in the Rent Controller under Section 15(7) of the Delhi Rent Control Act, 1958 (hereinafter being referred to as the “Act, 1958”) is discretionary and not mandatory and it is imperative that every violation in implementation of the directions of the Rent Controller under Section 15(1) of the Act, 1958 ipso facto leave to the striking out of the defence of the tenant and it ought to be exercised only when the tenant deliberately, contumaciously or negligently fails to deposit the rent due from him but there was a divergence of opinion on the facts of the instant case and for that reason the matter has been placed before us.

3. The facts in brief which may be relevant for the present purpose and culled out from the record are that the appellants-tenants rented a shop bearing no. 1445A, Dariba Kalan, Delhi on a monthly rent of Rs. 66/-. The respondents-plaintiffs jointly own the abovementioned demised premises. The rent for the shop is to be paid to respondent no. 1, who holds a power of attorney, to collect rent on behalf of the respondents. In November, 2007, the respondents (landlord) filed an eviction petition under Section 14(1)(a)(b)(c) and (j) of the Act, 1958 seeking decree for recovery of possession of the rented premises on the manifold reasons. We are not dilating on the grounds of eviction of the demised premises at this stage since that is the subject matter to be examined by the Rent Controller where the eviction petition is pending adjudication.

4. The appellants filed their written statement on 7th February, 2008 disputing the allegations made by the respondents in the eviction petition. Since one of the ground on which eviction was prayed for by the respondents was nonpayment of rent in which the order under Section 15(1) of the Act, 1958 came to be passed on 21st April, 2008. It will be appropriate to quote the order dated 21st April, 2008 ad infra:

“RENT CONTROL TRIBUNAL - DELHI

E-931/07

21.04.08

Arguments heard u/s 15(1) of DRC Act. The rate of rent and the relationship is not in dispute between the parties though the petitioner claims the arrears w.e.f. 01.01.2007 and the respondent states that he has paid rent upto October, 2007.

Since the orders u/s 15(1) of DRC Act are to be passed on the admitted facts, the respondent is directed to pay or deposit the arrears of rent w.e.f. 01.11.2007 till date @ Rs. 66/-pm within 30 days from today and further continue to pay or deposit the future rent at the said rate month by month before 15th of each succeeding English Calendar month.

SD/-

ARC/DELHI/21.04.2008”

5. In terms of the order under Section 15(1) of Act, 1958, the appellants-tenants have to pay or deposit the arrears of rent w.e.f. 1st November, 2007 till date @ Rs. 66/-p.m. within 30 days from 1st November, 2007 and further continue to pay or deposit the future rent at the said rate month by month before 15th of each succeeding English Calendar month.

6. On account of non-compliance of the order dated 21st April, 2008 as alleged, the respondents filed an application under Section 15(7) of the Act, 1958 on 28th April, 2009 praying for striking out the defence of the appellants.

7. The appellants filed their written response to the aforesaid application and it was specifically stated in paragraphs 3 & 4 that along with the arrears due from 1st November, 2007, in addition the advance rent of ten months was deposited and on adjustment of the advance rent deposited on