JUDGMENT
N.P. Gupta, J.
1. By this revision, the petitioners-defendants seek to assail the orders of the two learned courts below whereby the plaintiffs application Under Section 13(5) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be referred as the Act) has been accepted and the petitioners’ defence against the eviction has been struck off, while petitioner’s application Under Section 13(4) of the Act read with Section 5 of the Limitation Act has been dismissed.
2. The brief facts of the case are that the plaintiff non-petitioner filed a suit for eviction against the petitioner inter alia on the ground of default as contemplated by Section 13(1)(a) of the Act. The learned trial court made provisional determination of rent, that amount was deposited. However, thereafter, since 8.10.1994 the defendant did not or could not deposit the monthly rent. However the rent for the period 1.10.1994 to 30.9.1995 was deposited by the petitioners on 3.6.1995. It is at this time i.e. on 3.6.1995 that the petitioner filed an application Under Section 13(5) of the Act read with Section 5 of the Limitation Act, inter alia contending that a copy of the challan and tender dt. 7.10.1994 was lost by the petitioner and thereafter he got busy in connection with his daughter’s engagement, in which connection he had often to go outside Bhilwara. The daughter was ultimately married on 8.5.1995. Thereafter on 24.5.1995 when he met his counsel he was told that monthly rent has not been deposited. On these premises the petitioner sought condonation of delay for the period upto 3.6.1995.
3. After filing of this application, on 29.7.1995 the plaintiff non-petitioner filed an application Under Section 13(5), refuting the averments of the petitioner, and contending that since the defendant has not deposited rent in time, and there is no sufficient cause whereby he was prevented from depositing monthly rent in time, his defence against the eviction is required to be struck out. These two applications have been disposed of by the impugned order, whereby the petitioner’s application Under Section 13(4) of the Act read with Section 5 of the Limitation Act has been dismissed and accepting the plaintiffs application the petitioner’s defence against the eviction has been struck out. The learned trial court recorded a positive finding on appreciation of the facts that the explanation given out by the petitioner is not satisfactory, inasmuch as in the application the petitioner has not disclosed as to when he did go outside the town in connection with his daughter’s engagement. Likewise admittedly his daughter was married on 8.5.1995 still he has deposited the rent on 12.7.1995 only, while, as he was relieved of the responsibility of marriage on 8.5.1995 itself, and therefore, if he wanted to deposit the rent, and was vigilant about deposit of rent, he could have deposited it immediately thereafter. Not only this, in any case when he had come to know of non-deposit of rent on 24.5.1995 itself, still no satisfactory reason has been shown as to why did he deposit the rent on 12.7.1995. On the basis of these facts it was concluded that the delay caused in depositing the rent cannot be accepted to be bonafide one. It was concluded that for good long period of 8 months the petitioner had been careless. Inter alia with these findings the learned trial court also held that though the provisions of Section 13(5) of the Act are not mandatory and are directory, still in view of the facts the petitioner is not entitled to exercise of discretion or sympathy in his favour.
4. On appeal the learned lower Appellate Court endorsed these findings and found that even if the rent is assumed to have been deposited on 3.6.1995, as against the finding of the learned trial court about the rent to have been deposited on 12.7.1995, still it is not of much consequence, inasmuch as there is no explanation for the delay at least from 24.5.1995. The learned lower Appellate Court further found that there is no reason as to why did he not make efforts to deposit the rent during the period while he was in Bhilwara, and thus it is clear that the petitioner has been negligent in depositing the rent which is synonym of wilful and contumacious default and thus the appeal was dismissed.
5. In the first instance the learned Counsel for the petitioner assailed the findings of the learned courts below on the question of delay, and contended that since the petitioner had lost the earlier tender, and then he got busy in connection with engagement of his daughter, and after she was married, he met the lawyer on the date of hearing being 24.5.1995, and learnt about rent having not been deposited, and soon thereafter he deposited the rent, and thus there was sufficient cause entitling him to have the delay condoned. It is contended that the provisions of condonation of delay in the matters Under Section 13(4) and 13(5) are required to be liberally construed. Then it was contended that admittedly it was the petitioner who first moved the application seeking to deposit the rent and seeking condonation of delay, as the application was filed by him on 3.6.1995, and on that very day he had deposited the entire arrears of rent, and it was thereafter only that as late as on 29.7.1995, that the plaintiff filed an application for striking out the defence, getting conscious of the default on the petitioner’s filing application seeking condonation of delay, which is a weighty circumstance in favour of not exercising discretion to strike out the defence, and the order striking out the defence is required to be set aside. Likewise it was also contended that admittedly as on the date of the filing of the application for striking out defence no amount of rent was in arrears, and therefore, in view of the judgments cited by him, the defence was not required’ to be struck off. In support of his contentions learned Counsel relied on Shyamcharan Sharma v. Dharamdas , Miss Santosh Mehta v. Om Prakash , Ram Murti v. Bhola Nath , M/s. B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick , Vishandas v. Savitri Devi reported in RLW 1988(1) 365, KamlaDevi v. Shri Vasdev reported in 1995 (1) RCR 411, M/s. Sunmoon Stationers v. Banshi Lal reported in 1993(1) WLN 231, Amar Singh v. Doongar Singh reported in RLW 1997 (1) Raj. 210, Smt. Rekha Bhandari v. Deepak Surana reported in RLW 1998(3)Raj. 2008 and Collector! Land Acquisition v. Mst. Katyi .
6. Learned Counsel for the non-petitioner on the other hand supported the impugned order and contended that the two learned courts below have closely examined the cause given out by the petitioner for condonation of delay and in right and legitimate considerations have been found that cause to be not tantamounting to sufficient cause which does not require any interference by this Court as the finding does not suffer from any jurisdictional error. The learned Counsel contended that in this view of the matter the learned courts below have rightly struck out the defence of the petitioner against eviction. The learned Counsel placed reliance on the judgments in Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj , Jai Narain v. Satya Narain reported in 1995 DNJ (Raj.) 373 and Basti Chand v. Pukhraj reported in RLR 1998 (2)729.
7. I have heard learned Counsel for the parties, and have gone through the various judgments cited on either side so also the relevant provisions of law.
8. Before starting with the discussion it would be gainful to reproduce the relevant parts of the provisions of Section 13(3), 13(4), 13(5), 13(6) and 13(7) of the Act.
(3) In a suit for eviction on the ground set forth in Clause (a)of Sub-section (1) with or without any of the other grounds referred to in that sub-section, the court shall, on the first date of hearing or on any other date as the court may fix in this behalf which shall not be more than three months after filing of the written statement and shall be before the framing of the issues, after hearing the parties and on the basis of material on record provisionally determine the amount of rent to be deposited in court or paid to the landlord by the tenant. Such amount shall be calculated at the rate of rent at which it was last paid or was payable for the period for which the tenant may have made default including the period subsequent thereto upto the end of the months previous to that in which such determination is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable upto the date of determination.
Provided that while determining the amount under this Sub-section, the court shall not take into account the amount of rent which was barred by limitation on the date of the filing of the suit.
(4) The tenant shall deposit in court or pay to the landlord the amount determined by the court under Sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the court. The tenant shall also continue to deposit in court or pay to the landlord, month by month the monthly rent subsequent to the period upto which determination has been made, by the fifteenth of each succeeding month or within such further time; not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the court under Sub-section (3).
(5) If tenant fails to deposit or pay any amount referred to in Sub-section (4) on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit.
(6) If a tenant makes deposit or payment as required by Sub-section (4) no decree for eviction on the ground specified in Clause (a) of Sub-section (1) shall be passed by the court against him.
Provided that a tenant shall not be entitled to any relief under this Sub-section, if having obtained such benefit or benefits Under Section
13-A in respect of any such accommodation if he again makes a default in the payment of rent of that accommodation for six months.
(7) If in any suit referred to in Sub-section (3), there is any dispute as to the amount of rent payable by the tenant, the court shall decide the dispute finally at the time of decision of the suit and may, at that time, pass such orders regarding costs or interest, as having regard to the circumstances of the case, it deems fit.
9. I may recapitulate that these provisions of Sub-sections (3), (4), (5) and (6) are out come of amendments introduced by the Rajasthan Ordinance No. 26 of 1975, later on replaced by the Rajasthan Amending Act No. 14 of 1976. Prior to the amendment, it was the tenant’s duty on the first date of hearing to himself calculate the arrears of rent and interest etc. thereon and to deposit it, while in case of there being any dispute, such dispute was required to be raised on the first date of hearing itself, in which event the arrears of rent was required to be determined by the court under the then Section 13(5) and then thereafter the tenant was required to deposit and to continue to deposit or pay the monthly rent month by month. By the aforesaid amendment vide ordinance of 26 of 1975 those two erstwhile Sub-section were substituted, and uniform provision was made in Section 13(3) reproduced above, wherein, irrespective of the fact as to whether there is any dispute or not as to the amount of arrears of rent, a duty is caste on the court to make provisional determination of rent together with interest. Such determination is required to be made on the first date of hearing, or on any other date as the court may fix in this behalf, not later than three months after filing of the written statement, and is to be before framing of the issues. After such determination having been made, by virtue of Section 13(4) the tenant is to deposit the amount and continue to deposit the rent month by month by the fifteenth of each succeeding month, or within such further time not exceeding fifteen days, as may be extended by the court. Then Sub-section (5) requires the defence against the eviction to be struck out in the event of failure on the part of the tenant to deposit or pay the amount or amounts referred to in Sub-section (4). The word used in Sub-section (5) by the legislature is “shall”, and therefore, this provision was consistently construed by this Court to be mandatory, in the sense that in the event of defendant failing to pay or deposit the amount or amounts referred to in Sub-section (4) the Court had no option but to straightway struck out the defence.
10. On the question of effect of striking out of defence also there were divergent view of this Court in as much as some times it was held that it has the effect of completely striking out all the defence of the tenant against the eviction, while some times it was held that it has the effect of stocking out only the defence available under the Act, while the defence available under the general law still remain available, then in some cases it was Held that even after striking out the defence, the tenant is put in a position not worse than exparte, and that landlord will still have to prove the existence of the ground of eviction claimed in the plaint, but then the defendant will not be entitled to lead any evidence to rebut the plaintiffs evidence on any of the grounds arid may simply cross-examine the plaintiff and his witnesses. Then subsequently the view was taken that the effect of striking out the defence has the effect of striking out his defence only so far as it relates to the ground of default, and therefore, all other defences on all other grounds will remain available to the tenant, on which defence he will be entitled to lead evidence also, and at the same time the plaintiff will have to prove the defendant to have committed default in payment of rent as required by Section 13(1)(a) of the Act. But then with respect to this ground the defendant will be entitled only to cross-examine the plaintiff and his witnesses, but will not be entitled to lead any evidence to establish that he has not committed any default within the meaning of Section 13(1)(a). Be that as it may. The latest view prevailing is the last one in the above. In the present case I am not concerned with the controversy as to what should be the effect of the striking out of the defence, therefore, I am not referring to any precise citations and judgments of this Court taking a different view.
11. However, the fact remains that over all reading of the various Sub-sections (3), (4), (5) and (6) of Section 13 does make it clear that these provisions have been made to provide locus poenitentiae to the tenant, and give relief to a bonafide tenant against eviction on the ground of default, inasmuch as it does visualise that there may be circumstances and circumstances where the tenant may become a defaulter within the meaning of Section 13(1)(a), despite his not being intending to be defaulter, yet by circumstances or technical interpretations of law or otherwise, he may become defaulter, but then in older to protect him from eviction on the ground of default one more opportunity was sought to be given by the legislature to purge the default whereby, after the provisional determination of rent is made by the Court Under Section 13(3) the tenant can deposit the amount, and thereby get rid of the earlier default. But then in that event he is also to continue to deposit the future rent month by month within the time stipulated by Section 13(4).
12. It is in this background that Section 13(5) comes in, which provides, to use the words of Hon’ble Supreme Court “a harsh extreme” and a punitive extreme following upon a mere failure to pay rent. It is in this background that notwithstanding the user of word “shall” in the language of Section 13(5), notwithstanding the consistent interpretation having been taken by this Court about this provision being mandatory, it appears that the judicial conscious of the court was regularly pricking in view of this provision being punitive. The obvious result was that the view of the courts including Hon’ble the Supreme Court started diluting.
13. In Hem Chand v. Delhi Cloth & General Mills Co. Ltd. the Hon’ble Supreme Court was considering the provisions of Sections 14 and 15 of the Delhi Rent Control Act, wherein the word used was “may” as against “shall” as used in the Rajasthan Act, the Hon’ble Supreme Court interpreted the provisions and held that:
…in the event of failure of the tenant to deposit the rent Under Section 15(1) Rent Controller is bound to pass an order for recovery of possession for it yet remains for the landlord to prove his case that there was non-compliance of Section 14(1)(a). It is clear from Section 15(7) that an inquiry will have to be proceeded with even when the defence of the tenant has been struck out. More so this procedure is applicable when the defence is not struck out but only there is a failure to comply with an order Under Section 15(1).
Then while agreeing with the Full Bench view of the Delhi High Court that the Controller has no power to condone the failure of the tenant to pay arrears of the rent as required Under Section 15(1), it was held that the Full Bench fell into error in holding that the right to obtain an order for recovery of possession accrued to landlord. In para 8 itself the Hon’ble Supreme Court further noticed that even where there is default or non-compliance of Section 15(1), before striking out the defence the tenant is entitled to be given an opportunity of hearing, and finding the same to have not been given, the Hon’ble Supreme Court observed that the High Court ought to have considered and decided in appeal whether the striking out of the defence by the Rent Controller was right or not, and further held that if the striking out was right then the order directing possession to be given to the landlord ought to be upheld, but in the event of the High Court holding that the order striking out the defence by the Rent Controller was erroneous then the order directing recovery of possession should be set aside and the petition of the landlord heard by the Rent Controller after providing an opportunity to the tenant to raise his defence. Inter alia with these findings the Hon’ble Supreme Court further posed a question as to whether the Rent Controller has any discretion to extend the time prescribed in Section 15(1), which requires the Controller, after hearing the parties to make an order directing tenant to pay to the landlord to deposit that amount within one month of the date of the order, the arrears of rent, with a direction that he should continue to pay or deposit month by month a sum equivalent to rent and it was held:
This is a second opportunity given to the tenant to pay arrears of rent. Without the protection given under the Act the landlord can on 15 days’ notice ending with the month get the tenant evicted. The Rent Control Act protects the tenant from such eviction and gives him an opportunity to pay the arrears of rent within two months from the date of notice of demand as provided in Section 14(1)(a). Even if he fails to pay, a further opportunity is given to the tenant to pay or deposit the arrears within one month Under Section 15(1). Such payment or deposit in compliance with the order Under Section 15(1) takes away the right of the landlord to claim recovery of possession on the ground of default in payment of rent. The legislature has given statutory protection to the tenant by affording him an opportunity to pay the arrears of rent within one month from the date of the order. This statutory provision cannot be modified as rights of parties depend on the compliance with an order Under Section 15(1). In the circumstances, we agree with the Full Bench that the Rent Controller has not discretion to extend the time prescribed Under Section 15(1).
14. Then came the judgment of Hon’ble Supreme Court in Shyamcharan Sharma v. Dharamdas (supra) wherein the Hon’ble Supreme Court was considering the provisions of M.P. Rent Control Act where also in Section 13(6) thereof the word used was “may.” Interpreting those provisions it was held as under:
It does not, however, follow any failure to pay or deposit a sum equivalent to the rent to the 15th of every month, subsequent to the filing of the suit for eviction, will entitle the landlord, straightway, to a decree for eviction…. Section 13(6) does not clothe the landlord with an automatic right to a decree for eviction; nor does it visit the tenant with the penalty of a decree for eviction being straightway passed against him. Section 13(6) vests, in the court, the discretion to order the tricking out of the defence against eviction. In other words, the court, having regard to all the circumstances of the case, may or may not strike out the defence. If Section 13 were to be construed as mandatory and not as vesting a discretion in the court, it might result in the situation that a tenant who has deposited the arrears of rent within the time stipulated by Section 13(1) but who fails to deposit thereafter the monthly rent on a single occasion for a cause beyond his control may have his defence struck out and be liable to summary eviction. We think that Section 13 quite clearly confers a discretion, on the court, to strike out or not to strike out the defence, if default is made in deposit or payment of rent as required by Section 13(1).
15. After holding this, assuming discretion in the Court as to whether to strike out the defence or not to strike out the defence, the Hon’ble Supreme Court further held as under:
If the court has the discretion not to strike out the defence of a tenant committing default in payment or deposit as required by Section 13(1), the court surely has the further discretion to condone the default and extend the time for payment or deposit. Such a discretion is a necessary implication of the discretion not to strike out the defence. Another construction may lead, in some cases, to a perversion of the object of the Act, namely, ‘the adequate protection of the tenant’. Section 12(3) entitles a tenant to claim protection against eviction on the ground specified in Section 12(1)(a) if the tenant makes payment or deposit as required by Section 13. On our construction of Section 13 that the court has the power to extend the time for payment or deposit, it must follow that payment or deposit within the extended time will entitle the tenant to claim the protection of Section 12(3).
16. Thus, this judgment firstly proceeded in view of the power to strike out defence being discretionary, and the discretion was presumed also because of the consideration that the bonafide tenant may fail to deposit on a single occasion for a cause beyond its control. Considering these circumstances primarily it was held that the Court should exercise discretion as to whether it should strike out defence or not and since the court was considering the discretion, by implication it was found that the Court also has power to condone the default and extend the time for deposit.
17. Then came the judgment of Hon’ble the Supreme Court in Miss Santosh Mehta v. Om Prakash wherein Hon’ble the Supreme Court was considering the provisions of Delhi Rent Control Act which contains the word “may”. A look at this judgment shows that the Hon’ble Supreme Court was also considering the basic object of the Rent Control legislation and the consequences of striking out of the defence and purported to adopt “a socially informed perspective” and found that:
the Controller is armed with a facilitative power. He may or may not strike out the tenant’s 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.
18. It was found that striking out a party’s defence is an exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent. According to Hon’ble the Supreme Court, first of all, there must be 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. And it was held that if the 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. Accordingly it was also held that the last resort cannot be converted into the first resort; a punitive direction of court cannot be used as a body trap to get the tenant out. The Hon’ble Supreme Court further held that there is no indication whatsoever in the Act to show that the exercise of the power of striking out of the defence Under Section 15(7) was imperative whenever the tenant failed to deposit or pay any amount as required by Section 15. The provisions contained in Section 15(7) of the Act are directory and not mandatory as undisputedly it 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 refused to visit upon the tenant the penalty of non-payment or non-deposit. It was further held that “the effect of striking out of the defence Under Section 15(7) is that the tenant is deprived of the protection given by Section 14, and therefore, the powers Under Section 15(7) of the Act must be exercised with the circumspection. Thus these cases though dealing with the provisions couched with the discretion in language, it visualises a tenant placed in unforeseen circumstances likely to be visited with the penal provisions and interpreted the provisions benevolently.
19. Then came the judgment of Hon’ble Supreme Court in Ganesh Prasad Sah Kesari v. Lakshmi Narayan wherein Hon’ble the Supreme Court was considering the provisions of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 wherein the word used was “shall” like the one in Rajasthan Premises (Control of Rent and Eviction) Act.
20. The facts in the aforesaid Ganesh Prasad’s case were that the trial court made an order on 23.4.1973 Under Section 11-A of that Act directing the tenant to deposit the rent for the period upto inclusive of June, 1973 @ Rs. 32/- per month and thereafter to continue to deposit the rent from month to month @ Rs. 12.20 per month. A revision against this order was dismissed on 26.3.1974. The suit was fixed for hearing on 28.1.1975. The tenant moved an application for adjournment which was rejected, the plaintiffs witnesses were examined and the suit was decreed exparte on 30.1.1975. On the application of the defendant Under Order 9 Rule 13 the said exparte decree was set aside and the suit was set down for proceeding further from the stage where it was decreed exparte. In this background on 5.1.1976 the landlord moved an application alleging irregularity in depositing rent for months of August to October, 1975, praying for defence of the tenant to be struck off. This application was rejected on the ground that as the earlier order was made prior to the order when the suit was decreed exparte, on the setting aside of the exparte decree and revival of the suit, the order giving direction for deposit of future rent does not per se revive and therefore, even if there was some default on the part of the tenant, his defence cannot be struck off. On plaintiffs revision the High Court set aside that order and directed the learned trial court to note that the defence of the appellant will be deemed to have been struck off due to non-compliance of the order dt. 23.4.1973. It is in the background of these facts, Hon’ble the Supreme Court, by referring to various case law in para 9 held that the relevant part of the provisions of Section 11-A is directory and not mandatory, and that the word “shall” must be read as “may”. And then in para 12 it was held:
failure to comply with an earlier direction should not necessarily visit the tenant with the consequence of his defence being struck off because there might to myriad situations in which default may be committed. The court should adopt such a construction as would not render the court powerless in a situation in which ends of justice demand relief being granted.
(emphasis supplied)
21. Then in para 15, on facts it was held that there was some irregularity in making the deposit but it was not of such a nature as to visit the tenant with the consequence of striking off his defence. Therefore, the judgment of the High Court directing that the defence be deemed to be struck off was set aside and the order of the learned trial Judge was restored for the reasons therein stated.
22. Thereafter came the judgment of Hon’ble the Supreme Court in B.P. Khemka Pvt. Ltd: v. Birendra Kumar Bhowmick . In this case the Hon’ble Supreme Court was considering the provisions of West Bengal Premises Tenancy Act, where again the word used in Section 17(3) was “shall” and after referring to the earlier judgments of the Hon’ble Supreme Court in Shyamcharan Sharma’s case, Santosh Mehta’s case, Ganesh Prasad’s case, Ram Murti’s case and various other cases, it was held that the provision is directory and the word “shall” has to be read as “may”. In that case the delayed payment was only for the months of September, 1968 and March, 1969. It was held that the default pertained to belated payments of rent for two months and not for non-payment of arrears of rent and was, therefore, a default in the technical sense than in the real sense and hence of an inconsequential nature. Having regard to the intendment of the Act and the nature of the provisions. It was held that the delayed payment of rent did not constitute such defaults as necessarily warranted the striking out of the defence Under Section 17.
23. Taking inspiration from these judgments a Full Bench of this Court in Vishandas v. Savitri Devi reported in RLW 1988 (1) 365 reconsidering the legal position as was prevailing, this Court on a reference being made by the learned Single Judge on three questions; (1) Whether the provisions of Section 5 of the Limitation Act can be applied in the matter of depositing of rent Under Section 13(4) of the Act, 1950?, (2) Whether the court has no power even in the interest of justice and equity, to extend time beyond the limit prescribed Under Section 13(4) of the Act?. (3) Whether Section 13(5) of the Act is directory? After reviewing certain case law including the three judgments in Shyamcharan Sharma’s case, Santosh Mehta’s case, Ganesh Prasad’s case and M/s. B.P. Khemka’s case proceeded to read the word “shall” as “may” and then held that the provisions of Section 5 of the Limitation Act can be applied in the matter of deposit of the rent Under Section 13(4) of the Act, and as a necessary corollary held that the Court has power, in the interest of justice and equity, to extend the time beyond the limit prescribed Under Section 13(4) of the Act and further held that Section 13(5) is directory and not mandatory.
24. Likewise in Kamla Devi v. Shri Vasdev reported in 1995(1) RCR 411 the Hon’ble Supreme Court was again considering the provisions of Delhi Rent Control Act wherein after referring to the aforesaid judgments of Hon’ble the Supreme Court in Hemchand’s case, Santosh Mehta’s case, Shyamcharan Sharma’s case and Ram Murti’s case it was held that:
the exercise of this discretion will depend upon the facts and circumstances of each case. If the Rent Controller is of the view that in the facts of a particular case the time to make payment or deposit pursuant to an order passed under Sub-Section (1) of Section 15 should be extended, he may do so by passing a suitable order. Similarly, if he is not satisfied about the case made out by the tenant, he may order the defence against eviction to be struck out. But, the power to strike out the defence against eviction is discretionary and must not be mechanically exercised without any application of mind to the facts of the case.(emphasis supplied)
25. After the judgment of Full Bench of this Court in Vishan Das’s case, the Court started considering the cases of non-compliance of Sections 13(3) and (4) by the tenant by applying the provisions of Section 5 of the Limitation Act, wherever invoked, and in the event of declining to condone the delay, the defence against eviction is struck out, and where the delay is condoned the striking of the defence is declined. And in that process ofcourse view was taken that the provisions of Section 5 are to be liberally construed, and in the case of even slightest bonafide ground, the delay should be condoned. Learned Counsel for the petitioner in this regard also pressed into service the observations of Hon’ble the Supreme Court in Collector, Land Acquisition v. Mst. Katyi .
26. At this stage I may further refer to the remaining judgments cited by the learned Counsel for the petitioner.
27. In M/s. Sunmoon Stationers v. Banshi Lal reported In 1993 (1) WLN 231, it was held that the power to strike out defence being discretionary, it is to be construed as enabling provisions, such discretion must be exercised judicially. With these observations in para 34 it was held as under:
Right to defend the suit is very valuable right and before the same is taken away very strong ground must exist. It is only when the court comes to conclusion that default in making payment in terms of Sections 13(3) or 13(4) of the Act was wilful and contumacious, the court ought to exercise discretion to strike out the defence.
28. Then in Amar Singh’s case again it was held as under:
…a discretion has been conferred upon the Court Under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act to strike out defence if in the facts and circumstances of the case the Court feels it proper to do so. On the other hand if the circumstances of the case do not justify in striking out of the defence then the Court may decline to strike out the defence. The discretion Under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction), Act being a judicial discretion, it is necessary that the Court should exercise this discretion in the matter of striking out defence in a judicial manner. Since both the lower courts have come to the conclusion that the story given by the petitioner regarding payment of rent for the month of December, 1986 to Dungar Singh is unreliable, this Court cannot interfere with that finding of the fact. The learned trial Court as well as learned First Appellate Court appear to have given much emphasis to the fact that the story advanced by the petitioner about payment of rent to Dungar Singh was not proved. It appears that they have failed to exercise judicial discretion Under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act on above mentioned ground. There appears to be error in the exercise of their judicial discretion Under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act.
29. Thereafter this Court proceeded to set aside the order striking out defence.
30. In Smt. Rekha Bhandari v. Deepak Surana reported in RLW 1998(3) Raj. 2008, this Court found that by mistake of the employee the cheques were deposited in Bajaj Nagar Branch of State Bank of India instead of Tonk Road Branch though the same account number was mentioned and the cheques were accepted by the Bank debiting the amount in routine manner while, in case of rent for one month though the amount was deposited in Tonk Road branch of State Bank of India, but inadvertently plaintiffs account number could not be mentioned and therefore, the amount was not credited in the plaintiffs account and thus there was default. This Court held that:
The learned court below in my view took harsh view in striking out the defence of the defendant. Looking to the facts of the case it cannot be inferred that the defendant was guilty of disregard in payment of rent. The situation was also not grossly recalcitrant. The defendant properly explained the cause of delay in depositing the rent. The tenant cannot be penalized in such a situation where two months rent was deposited by her in addition to what was provisionally determined by the trial court.
31. From the survey of the various case law referred to above, this much is definitely settled that the Court has power by Section 5 of the Limitation Act to condone the delay in making deposit Under Section 13(3) or 13(4). Likewise it is also settled that the power to strike out the defence Under Section 13(5) is not mandatory or mechanical in nature but is directory and in striking out the defence, the Court is to exercise the discretion judicially as to whether in the facts and circumstances of the case the defence should be struck out or not.
32. In my view, for the ensuing reasons, these two aspects are entirely independent of each other, inasmuch as, of course where the court condones the delay or default by exercising power Under Section 5 of the Limitation Act, the defence cannot be struck out. On the other hand on survey of the various judgments referred to above, I am not inclined to take a view that in view of the consequences flowing from striking out the defence or riot striking out the defence without condoning the delay, even where the court is not inclined to condone the delay, the Court is not always bound to strike out the defence and in appropriate case the court may exercise its discretion in favour of declining to strike out the defence.
33. As observed by me above that in the scheme of things, the provisions of Sections 13(3), (4) and (6) give a second opportunity, a locus poenitentiae to the tenant, to get over his earlier defaults by fulfilling certain requirements i.e. by depositing the provisionally determined rent, and by continuing to deposit the subsequent rent month by month.
34. But then it is to be grasped that ground of default Under Section 13(1)(a) is as good ground of eviction as any other ground, mentioned in other clauses of Section 13(1), and only in cases of ground of default the tenant is given an additional opportunity by way of a benefit, to get over that ground. Here itself I may recapitulate that Hon’ble the Supreme Court in Santosh Mehta’s case has clearly observed and held the striking out of the defence to be “punitive extreme” and a “harsh extreme” and has cautioned it to be used in a grossly recalcitrant situation. Likewise this Court also in M/s. Sunmoon Stationers’ ease has held that the “right to defend the suit is very valuable right” and before the same is taken away a very strong ground must exist i.e. it is only when the court comes to the conclusion that the default in making payment in terms of Section 13(3) or (4) was wilful and contumacious that the court ought to exercise the discretion to strike out the defence. Thus, the anxiety of the various decisions holding in favour of exercising the discretion by not striking out the defence is that the action to strike out the defence is punitive, and extreme harsh, and takes away a very valuable right of the defendant to defend the suit even on the ground of default. I whole heartedly associate with the feeling and agree with the same, but at the same time I am of the view that the power to condone or not to condone delay depending on the existence or want of sufficient cause, and the discretion to or not to strike out defence need not be always interlinked. Inasmuch as if the tenant makes out sufficient cause for condonation of delay, the delay is to be condoned, and then obviously the defence cannot be struck out, on the other hand if the tenant fails to make out the sufficient cause, the Court need not condone the delay, and then even after declining to condone the delay, rather only after declining to condone the delay, the court is to exercise judicial discretion, on the question, as to whether in the facts and circumstances it would like to strike out the defence or not? In other words merely because, the court declines to condone the delay, it need not mandatorily or mechanically strike out the defence.
35. This view, in my opinion adequately takes care of the scheme and purpose of the legislature as well as the requirement and feeling of benevolence felt and expressed by Hon’ble the Supreme Court and this Court in the above cited cases.
36. I may elaborate that if the defence is struck out, as observed by Hon’ble the Supreme Court, the tenant suffers a punishment, “a harsh extreme”, namely that despite the fact that he may not have committed the default as claimed by the plaintiff, still on account of some lapse committed during pendency of the suit, which the Court might not find to be on account of sufficient cause, he is deprived of an opportunity to prove that he did not commit default as claimed by the landlord. While if the defence is not struck out, all that would happen is that he will just get an opportunity to prove his version also about his having not committed the default. This may include various circumstances like, valid tender of rent prior to filing of the suit, sometimes even valid payment of rent to the landlord, sometimes on ‘proper proof of receipt by the landlord by getting the document of receipt examined by the handwriting expert, sometimes by proving valid deposit of rent Under Section 19-A by requisitioning the record which otherwise may even have falsely been denied by the landlord and so on and so forth.
37. The question then arises is, and requires to be considered is on account of typical situation of advantages and disadvantages, created or assumed, under the scheme of the language of Section 13(5) and 13(6). Inasmuch as one situation confers extreme advantage to the landlord by imposing extreme penalty on the tenant, while the other situation (simply assumed without its genuine existence) the undue advantage to the tenant in the event of defence being not struck out. It is this dilemma which indirectly works in the mind of the courts in deciding the question, as to whether the delay should be condoned or not, so also as to whether the defence could be struck off or not? Inasmuch as it is of course clear that in the event of defence being struck out, though the landlord will have to prove the tenant to have committed default, but then the tenant will not have an opportunity to defend himself on this ground and will not be entitled to lead evidence. On the other hand it is assumed that in the event of defence being not struck out, even though the delay may not be condoned, the tenant will get the benefit of Section 13(6) of the Act, and the landlord will not get decree on the ground of default.
38. The learned Counsel for the petitioner at this place relied upon the judgment in Ram Murti’s case and submitted that in case the defence is not strike out, the tenant would be entitled to the benefit of Section 13(6) of the Act.
39. In Ram Murti’s case referring to the provisions of Sections 14 and 15 of the Delhi Rent Control Act, it was contended that Section 14 thereof is in parimateria with Section 13(6) of the present Act, with a difference that the requirement of Section 13(6) of the Act Is payment or deposit as required by Section 13(4), while under Delhi Act, the requirement of Section 14(2) is the payment or deposit as required by Section 15. According to Section 15 of the Delhi Act, under Sub-section (1) the Controller is to make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order an amount calculated at the rate of rent at which it was last aid for the period for which the arrears of rent were legally recoverable from the tenant, including the period subsequent thereto upto the end of the month previous to that in which payment or deposit is made, and to continue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate. This order is to be passed after giving an opportunity of hearing to the parties. Thus, this provision is more or less in parimateria with the provisions of Section 13(4) of the Act. Then according to Sub-section (2) where, if in any proceeding for the recovery of possession of any premises on any ground other than that referred to in Sub-section (1), the tenant contests the claim for eviction, the landlord may, at any stage of the proceeding, make an application to the Controller for an order on the tenant to pay to the landlord the amount of rent legally recoverable from the tenant, and the Controller may make an order in accordance with the provisions of this Sub-section (2). Then according to Sub-section (3) if in any proceeding referred to in Sub-section (1) or (2) there is any dispute as to the rent payable, the Controller is to fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of Sub-section (1) or (2) as the case may be, until the standard rent in relation thereto is fixed having regard to the provisions of the Act. Then Sub-section (4) comprehends the eventuality of the dispute about the person to whom rent is payable. Then Sub-section (6) provides that if a tenant makes payment or deposit as required by Sub-section (1) or Sub-section (3), no order shall be made for recovery of possession on the ground of default in payment of rent by the tenant, but the Controller may allow such costs as he may deem fit, then Sub-section (7) provides that if the tenant fails to make payment of rent as required by Section 15, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. Learned Counsel for the petitioner invited pointed attention to para 16, wherein Hon’ble the Supreme Court has observed that it would be incongruous to hold that even if the defence of the tenant is not to be struck out Under Section 15(7), the tenant must still be visited with the punishment of being deprived of the protection Under Section 14(2), and on that basis it was contended that thus in case the defence is not struck out, of necessity the defendant is to be entitled to the benefit of Section 13(6) of the Act.
40. In my humble view this assumption part does not find support even from Ram Murti’s case and has to be clarified.
41. So far as Ram Murti’s case is concerned suffice it to say that in this very para 16, after referring to the other judgments like Hemchand’s case, it was found that even if the defence of the tenant is struck out, Rent Controller could not straightway make an order for eviction in favour of the landlord Under Section 14(1)(a), and therefore, the landlord has still to make out a case before the Rent Controller that he was entitled to an order for eviction of the tenant Under Section 14(1)(a). It was further held that surely the tenant has the right to participate in the proceedings and cross-examine the landlord. In this view of the matter, it was held as under:
It must logically follow as a necessary corollary that if the defence is not to be struck out Under Section 15(7) it means that the tenant has still the defences open to him under the Act. In the premises, the conclusion is irresistible that he has the right to claim protection Under Section 14(2). What is of essence of Sections 14(2) and of 15(6) is “whether there has been a substantial compliance with the order passed Under Section 15(1)” in these provisions must be construed in a reasonable manner. If the Rent Controller has the discretion Under Section 15(7) not to strike out the defence of the tenant, he necessarily has the power to extend the time for payment of future rent Under Section 15(1) where the failure of the tenant to make such payment or deposit was due to circumstances beyond his control.
42. Thus, this judgment also does not help the petitioner in the manner as sought to be contended, inasmuch as Section 14(2) of the Delhi Act also did constitute a defence, which if not struck out could be available to the tenant but then it is to be available only if there had been a substantial compliance with the order passed Under Section 15(1). Hon’ble the Supreme Court has not stated, and was not at all faced with the question, as to whether in case where the failure of the tenant to make payment was not due to circumstances beyond his control, and on facts the Rent Controller did not feel proper to exercise his power to extend the time, still might be in view of relevant facts emerging from the record he did not feel persuaded, or stand advised to strike out the defence, then the non-compliance of Section 15(1) would survive despite defence being not struck out, in such circumstances whether the tenant shall be entitled to the protection of Section 14(2) or not? Thus, this case is not of any help to the petitioner.
43. In this regard I may recall the provisions of Section 13(6) once again which clearly provides “if a tenant makes deposit or payment as required by Sub-section (4) no decree for eviction on the ground specified in Clause (a) of Sub-section (1) shall be passed by the court against him.” Thus, a bare reading of this Sub-section shows that for refusing a decree for eviction, the sine qua non is, that the tenant should have made deposit or payment as required by Sub-section (4). A combined reading of Sub-section (5) and (6) thus makes it clear that compliance of Sub-section (4) does give an advantage to the tenant under Sub-section (6), while non-compliance thereof entails two consequences, (i) being punitive, of his defence to be liable to be struck out and thereby depriving him of any right to lead evidence on the ground of default; (ii) being of taking away this additional benefit bestowed upon him by Sub-section (6). The anxiety of the various decisions referred to above is to relieve the tenant of the “harsh extreme” and “punitive consequences” so as not to take away his valuable right to defend the suit. The only consequence of such eventuality in my view is that the tenant would be in a position of ordinary litigant being defending the suit on the ground of default in the same manner as he is defending it on the other grounds. He would simply not get the additional advantage of seeking dismissal of the suit notwithstanding he is having committed default as pleaded in the plaint which advantage he would have had in the event of his complying with the provisions of Sub-section (4) or making deposit or payment as contemplated by Sub-section (6). In other words if the tenant fails to make out sufficient cause for the delay or default in making payments as required by Section 13(4), and the Court declines to condone the delay, and at the same time in its good judicial discretion does not finding the default to be wilful or contumacious and does not strike out the defence, the natural consequences that flow are that the defendant is entitled to lead his full evidence even on the ground of default, and prove that he has not committed any default. In which event if the defendant succeeds in proving, the plaintiff will not get a decree on the ground of default, while if the defendant still fails to prove himself to have not committed the default, or rebut the plaintiffs evidence about his having committed default, then he is to suffer the decree for eviction despite being first defaulter, as simply the tenant does not get the additional benefit of Section 13(6). Thus in ray view even in cases where the court does not condone the delay and at the same time does not strike out the defence, then also the tenant very well gets relieved of the penal consequences, and the landlord also does not suffer any additional disadvantage attracted against him by Section 13(6).
44. My above view point would be clear from another illustration viz. suppose in a case after determination of rent Under Section 13(3), the tenant either does not at all pay any rent, or wilfully and contumaciously regularly defaults in payment of subsequent monthly rent, still the landlord either may not chose to apply for striking out the defence, as in his estimation adopting this course may delay the disposal of the suit on account of time that may be consumed in disposal of Section 13(5) application, then appeal and then revision, and therefore, may continue to proceed with the trial, or in a given case that the landlord may stand advised even to expressly waive his right to get defence against eviction struck out, with the result that the defendant also leads his entire evidence, and likewise the tenant also does not even apply for extension of time and condonation of delay. The question then arises is as to whether in such circumstances would it not be open to the landlord to contend during the course of argument that the payments have not been made as required by Section 13(4), for the purpose of Section 13(6), and therefore, if the default is proved, the suit for eviction could be decreed on that ground, or even in that event since the defence is not struck out, notwithstanding non-deposit of the amount and notwithstanding any request not being there for condonation of delay, the tenant will have to be bestowed with the benefit of Section 13(6)? In my humble opinion in such eventuality the precise answer has to be that the tenant will not be entitled to the benefit of Section 13(6), and in case the trial court finds after appreciating the evidence of rival parties that the plaintiff has proved the ground of default Under Section 13(1)(a), the decree for eviction even on the ground of default has to be passed.
45. Thus, the interpretation of mine as being taken hereinabove is fully in line with the feelings of Hon’ble the Supreme Court seeking to protect against extreme harsh consequences and at the same time it is in keeping with the principle of harmonious interpretation of the legislation.
46. After coming to the above legal conclusion, if the present case is considered on merits, I find that the learned courts below cannot be said to be in jurisdictional error in not condoning the delay in making deposit of the rent for the period in question i.e. 1.10.1994 to 30.4.1995, inasmuch as, all said and done, it is the tenant who was to deposit monthly rent, and simply because he alleges to have lost the last receipt, he could not claim a total holiday in payment of monthly rent. As I find from the statement of payments submitted before me by the learned Counsel for the petitioner that, from 1.4.1990 he has been depositing the rent biannually, of course in advance, and it was for the first time that on 14.10.1993 he deposited rent for one year i.e. up to 30.9.1994. Thus, there appears to be no justification for him to have assumed to have deposited the rent for a period much longer than one year since he last deposited the rent on 14.10.1993. That apart, in any case when the date was fixed in the learned trial court on 24.5.1995 on which date he admittedly contacted his counsel, and learnt about rent having not been deposited, notwithstanding that his theory of being busy in connection with the marriage of his daughter, which was already over on 8.5.1995, there was no justification for again lying low till as late as 3.6.1995. Thus, so far as the learned courts below did hot find sufficient cause for condoning delay the impugned orders do not require any interference.
47. It is at this point that as mandated by Hon’ble the Supreme Court that the discretion as to whether the defence is required to be struck off or not, has to be exercised judicially, in the facts and circumstances of the case. At this point, I find that as noticed above, right from 1990, the tenant had been depositing rent annually or biannually in advance. Even after this deposit made on 3.6.1995, the tenant has always been depositing the rent annually in advance. Likewise admittedly as on the date of the filing of the application for striking out the defence no amount of rent was in arrears. Not only this, it is clear that it is the tenant who first moved the application Under Section 13(4) of the Act read with Section 5 of the Limitation Act on 3.6.1995, and it was taking inspiration from this application that the land lord filed application subsequently on 29.7.1995. Thus, taking into consideration all these circumstances, in my view it cannot be said that the non-deposit of the rent by the tenant was contumacious so as to visit him with the “harsh and extreme penalty” of striking out of the defence, and therefore, despite maintaining the refusal to condone the delay, I am inclined to set aside the part of the order striking out defence.
48. Accordingly the revision petition is partly allowed. The impugned orders so far as they decline to condone the delay on account of want of sufficient cause, are maintained, but to the extent they order striking out of the defence, are set aside. The defendant would be entitled to defend the suit on all grounds including the ground of default, and in case after considering the evidence of both the parties, the learned trial court finds it proved that the defendant has committed default as contemplated by Section 13(1)(a), then the learned trial court need not decline to pass decree for eviction on that ground by taking recourse to Section 13(6), as, for the purpose of Section 13(6) the tenant does not fulfil the requirement of his having made deposit or payment as required by Sub-section (4). However, if on appreciation of evidence of both the parties learned court finds the plaintiff to have failed to prove the defendant to have committed default Under Section 13(1)(a), obviously the natural consequences will flow. The parties are left to bear their own costs.