IMPORTANT POINT
Striking out defence of defendant – Judicial discretion must not be exercised in favour of a party indulging in contumacious defiance.

ORDER (CAV)

The petitioners/plaintiffs are before this Court calling in question an order dated 05-07-2024 passed by the LXIV Additional City Civil & Sessions Judge, Bengaluru City on I.A.No.X in O.S.No.5660 of 2022, rejecting the application filed by the petitioners, filed under Order VI Rule 16 r/w Section 151 of the Code of Civil Procedure, seeking striking off the defence of the defendant.

2. Heard Smt. Shweta Krishnappa, learned counsel appearing for the petitioners and Sri T.H.Avin, learned counsel appearing for the respondent.

3. Facts, in brief, germane are as follows: -

The petitioners are the owners of the suit schedule property. They let it out on tenancy to the respondent who runs a pre-school in the name and style of ‘Oranges Play Home and Vidyadarpan Tutorials’. The tenant defaults in payment of rents. The petitioners institute an eviction suit in O.S.No.5660 of 2022 on 30-08-2022 and file two applications – one seeking temporary injunction restraining the respondent/defendant from continuing further in the suit schedule property and I.A.No.2 for deposit of rents. On 02-03-2023 the defendant files her written statement and counter claim. The petitioners also file objections to the counter claim filed by the defendant. Earlier to it, on 20-01-2023, an application under Order XXXIX Rule 10 of the CPC, seeking a direction to deposit arrears of rent between 01-03-2020 and 30-08-2022 was filed by the plaintiffs. The concerned Court, partly allows the application on 15-07-2023 and direct the respondent to pay arrears of rent at Rs.82,431/- per month from 01-06-2020 to 30-08-2022. The concerned Court also noted that the respondent by choosing not to pay rent despite expiry of the prescribed period is illegally squatting over the property.

3.1. The order directing deposit of rent is called in question before this Court in M.F.A.No.6772 of 2023. The appeal comes to be dismissed on 09-02-2024. Even then, the rent was not paid. Therefore, the petitioners then prefer application in I.A.No.X under Order VI Rule 16 seeking the trial Court to strike off the defence of the respondent that was taken in the written statement filed in O.S.No.5560 of 2024 on her failure to pay and comply with the order dated 15-07-2023. The concerned Court rejects the application of striking off defence which has driven the plaintiffs to this Court in the subject petition.

4. The learned counsel for the petitioners, taking this Court through the documents appended to the petition, would vehemently contend that the respondent is squatting over the property without paying a rupee of rent for the last five years. The total arrears of rent, as on today, has mounted close to Rs.50/- lakhs. The concerned Court’s order directing deposit of rent was challenged before this Court in an appeal, which also comes to be rejected. Notwithstanding all these, not a rupee of rent is paid. Therefore, the petitioners had appropriately filed the application seeking striking off the defence, as the orders of this Court and the concerned Court were blatantly violated, which ought to have been answered in favour of the petitioners, more so, in the light of the fact that there is already a counter claim by the respondent.

5. Per contra, the learned counsel appearing for the respondent would submit that she has a case for waiver of rent between 2020 and 2022, as it was during COVID-19 and the school did not function though the respondent was in possession of the property. That issue is not answered by the plaintiffs and the entire arrears has mounted only for the said period. The respondent now is not in a position to pay the rent, unless the school commences. The learned counsel would further contend that if reasonable time is granted, the respondent would pay arrears of rent and continue the school. The reasonable time, according to the respondent, is about two years to clear the arrears.

6. The learned counsel for the petitioners would put up vehement opposition in her re