JUDGMENT
Badar Durrez Ahmed, J.
1. Both these appeals, i.e., SAO No. 30/92 and SAO No. 31/92 are taken up together since they arise out of the common impugned judgment and/or order dated 26.8.92. In these appeals the order dated 26.8.92 passed by the Rent Control Tribunal, Delhi while dismissing RCA 63/91 and RCA 62/91 is impugned. The said RCAs in turn arose out of two orders both dated 9.1.91 in Eviction Petition 363/87 passed by the Additional Rent Controller. By the first order dated 9.1.91, the Additional Rent Controller struck off the defense of the appellant/tenant on the ground of non-payment of costs of Rs.150/- imposed on the appellant /tenant on the previous date i.e. 6.3.90. The second order dated 9.1.91 has been passed ordering eviction of the appellant/ tenant on the ground mentioned in Section 14(1)(h) of the Delhi Rent Control Act 1958 after recording the statement of the respondent as AW1 and having struck off the defense of the appellant/ tenant.
2. The facts so much as are likely are as under:
On 2.8.89 the eviction case was fixed before the Additional Rent Controller for recording of evidence of the respondent landlord on 6.3.90. On that date at the request made by the proxy counsel for the appellant/ tenant the case was postponed for 29.10.90 for recording the respondent’s evidence subject to payment of Rs. 150/- as costs. On 29.10.90 the Presiding Officer was on leave and accordingly the case was fixed for recording respondent’s evidence on 9.1.91. On that date the payment of costs of Rs.150/- was pressed for. However, as the costs of Rs.150/- had remained unpaid, the Additional Rent Controller struck off the defense of the appellant/tenant and, as stated above, after recording the statement of the respondent as AW1 ordered eviction under Clause (h) of proviso to Section 14(1) of the said Act on 9.1.91 itself.
3. Learned counsel for the appellant contends that the short point for decision in this case is whether the discretion vested in the additional Rent Controller under Section 35B of the Civil Procedure Code read with Section 148 ought not to have been exercised in his favor in the facts and circumstances of the case, particularly, in view of the fact that costs of only Rs.150/- was imposed and the appellant’s conduct hitherto has not been dilatory.
4. In the appeal filed before the Rent Control Tribunal, the appellant before this court had relied upon the Full Bench decision of the Punjab and Haryana High Court in the case of Prem Sagar and Ors. Vs. Phul Chand & Ors. , the observations which are relevant have been have been quoted in para 6 of the impugned judgment and are set out herein below:
“If on the date next following the date of the order of payment of costs the issue as to payment of costs is not raised by either of the parties or taken notice of by the Court, it cannot be said that thereafter on all or any subsequent date the same can be resuscitated or that Section 35-B would continue to apply with all its rigour thereafter as well. Indeed, it is inevitable that if on the crucial date fixed for the payment of costs i.e. the date next following the date of order of payment of costs, the question is not raised at all, then impliedly a waiver of the right arising in favor of the party entitled to costs, would necessarily follow. Therefore, on subsequent dates it would not be open to the parties to reopen the issue at their will and seek the barring of the further prosecution of the suit or the defense under Section 35-B afresh. It is axiomatic that the law is for the vigilant and not for those who blissfully sleep over their rights. 193 Rev. LR.220 (Punj & Har) and observations to the contrary in Civil Revn No. 106 of 1982 dated 25.5.82 (Punj & Har) over-ruled.
It would be obvious from the language of Section 35-B that the crucial date on which the status focuses itself is the date next following the date of the order of payment of costs. It is from the said date that the further prosecution of the suit or the defense is made conditional on the payment or tender of costs. The twin object or purpose, therefore, appears to be to avoid procrastination or delay by the parties in the already tardy pace of civil proceedings and to impose a heavy sanction for any non-compliance with the order to pay costs. Orders contemplated under Section 35-B are in essence in tarrorem so that the unscrupulous litigant may not indulge in dilatory tactics. It call for pointed notice that even here the result is not automatic and a discretion still remains with the trial judge under Section 148 to exercise his power in favor of the defaulting party.”
5. The learned counsel for the appellant submits that the observations quoted above had two elements to it. While the Rent Control Tribunal only took note of the first element, it failed to take note of the material observation which is recorded in the latter part of the quotation above i.e. that the consequence of non payment of costs as set out in Section 35-B of the Code of Civil Procedure, 1908 is not automatic and that a discretion still remains with the Trial Judge under Section 148 thereof to exercise his power in favor of the defaulting party. This aspect of the matter had not at all been considered by the Rent Control Tribunal and it is on this aspect that the learned counsel for the petitioner has drawn my attention to. It is his submission that the Additional Rent Controller had automatically struck off the defense of the appellant and had not exercised the discretion which vested in him nor had he disclosed any reason for not exercising such discretion. I have considered the arguments of the learned counsel for appellant and I would agree that the striking off of the defense of the appellant ought not to have taken place automatically, as it were, but that the trial court ought to have applied its mind to the questions whether it ought to exercise its discretion to allow or not to allow the striking off the defense.
6. Accordingly, I allow the appeals. The impugned judgment and order is set aside and the matter is remanded to the additional Rent Controller for adjudication on merits. I feel that since this is an old matter which has been pending since 1987, the trial court will proceed with the matter as expeditiously as possible after giving notice to the parties. There shall be no order as to costs.