( 1 ) THIS petition under Article 227 of the Constitution of India has been filed by EKTA Garments, hereinafter referred to as the petitioner challenging the order of the Rent Control Tribunal dated 14. 2. 1990 whereby the order of the Addl. Rent Controller dated 13. 12. 89 striking out the defence of the petitioner was confirmed and the appeal against that order was dismessed.

( 2 ) IN brief, the facts of the case are that the Addl. Rent Controller passed an order under Section 15 (1) of the Delhi Rent Control Act on 24. 2. 1987 directing the petitioner tenant to pay or deposit the arrears of rent w. e. f. , I. I 1. 85 at the rate of Rs. 240. 00 per month. The arrears were to be paid within one month from the date of the order and future rent month by month by 15th of each succeeding month. The petitioner, as per the order of the court, paid a sum of Rs. 4080. 00 as arrears of rent to the landlady but failed to pay or deposit rent for October, 1988 onwards in the court of the concerned Addl. Rent Controller necessitating the respondent landlady to file an application under Section 15 (7) of the Delhi Rent Control Act for striking out the defence of the tenant petitioner herein.

( 3 ) IN his reply to that application the tenant pleaded that he has been tendering rent to the landlady regularly and paid Rs. 4080. 00 as arrears from 1. 11. 1985 to 9. 3. 1987 and also continued to pay future rent upto September, 1988. Thereafter the landlady avoided to accept the rent and to issue rent receipts and he sent the rent by money order but the landlady refused to accept the same and ultimately he deposited the rent in the court of Gurdeep Kumar, Addl. Rent Controller. He denied that there was any willful or contumacious default on his part.

( 4 ) BOTH the courts below found that the application under Section 15 (7) of the Delhi Rent Control Act was filed on 1. 12. 88 and the tenant, petitioner herein, was duly served with the notice of the application and appeared on 23. 3. 89. Neither the tenant filed any reply to the application nor depostited the rent of which he was alleged to be in default. It was on 15. 5. 89 that the tenant deposited the anears of rent upto May, 1989 in another court of the Addl. Rent Controller under Section 27 of the Delhi Rent Control Act. Both the court came to the conclusion that the delay in deposit of rent on the part of the tenant and that too in another court of the Addl Rent Controller was not satisfactrily explained and according to them the default was willful and contumacious and in such circumstances the defence of the petitioner was struck off.

( 5 ) AGGRIEVED, this petition has been filed. Section 15 (7) of the Delhi Rent Control Act reads as under:

"if a tenant fails to make payment or depostit as required by this section, the Controller may order the defence against eviction to be struck out and proced with the hearing of the application".

( 6 ) IT will be noted that Section 15 (7) is not couched in mandatory language. It uses the word "may". It has been observed in Miss Santosh Mehta vs 0m Parkash-1980 Rajdhani Law Reporter 355

"the harsh, drastic power of striking out defence is an exceptional step and being directory and discretionary should not be mechanically applied in all cases of default but should be applied where non-deposit is deliberate and wilful. Only a recalciitrent, defiant or negligent tenant deserves this penalty. First of all, there must be a failure to pay rent which, in the context, indicates wilful failure, deliberate default or violitional 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 fefuses 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 coverted into the first resort, a punitive