The effect of striking off the defense under Section 15(7) of the Act is not only in form of depriving the tenant of his right to defend the Eviction Petition, but would also lead to him losing the protection under Section 14(2) of the Act. Therefore, there can be no denial that such power is to be exercised sparingly and judiciously. This was held in SATISH PARASHAR V. PREM BIHARI (SINCE DECEASED) [TCM(M) 476/2020] in the HIGH COURT OF NEW DELHI by a single bench consisting of JUSTICE NAVIN CHAWLA.
Facts are that the respondent had filed an eviction petition, against the petitioner under Section 14(1)(a) of the Act. The learned ARC passed the order U/S.15(1) of the Act. The petitioner aggrieved by the ARC order filed an application seeking review along with condonation of delay, which was dismissed. And on subsequent dismissal by RCT, the present petition was filed.
The counsel for the petitioner contended that the order of Arc proceeded on an incorrect presumption of the rate of rent. The reason for the delay in filing the application seeking review was the legal advice received in form of an application under Section 152 of the CPC. Reliance was placed on the judgment of Rafiq & Ors. vs. Munshilal & Ors.
The counsel for the respondent contended that the two Courts below had exercised their discretion in not condoning the delay and had allowed the application of the respondent under Section 15(7) of the Act, this Court should not interfere with the same in exercise of its powers under Article 227 of the Constitution of India.
The court also made reference to the judgement of the Apex court in, Miss. Santosh Mehta v. Om Prakash and Ors., wherein it was held that “Section 15(7) of the Act is a penal provision and is discretionary in nature. It has a built-in self-restraint and is to be resorted to in only exceptional circumstances and not in a routine manner following upon a mere failure to pay rent. It is an extreme power and therefore, should be exercised where the Court finds a willful failure, deliberate default, or volitional non-performance. It is not an automatic weapon and therefore, the last resort must not be converted into the first resort.”
The court in order to shed light on the use and application of section 15(7) DRC, Act, to strike out defense, also made reference to the Supreme Court judgement in Kamla Devi (Smt.) vs. Vasdev, wherein the following observations were made, “It is not obligatory for the Rent Controller to strike out the defense of the tenant under Section 15(7) of the Act if the tenant fails to make payment or deposit. It would depend upon the facts of the case and the discretion of the Controller whether such drastic order should or should not be passed.”
Considering the law and the facts of the case the court held that, there was a mistake in the order passed by the learned ARC wherein Rs.850/- per month was taken as the rate of rent, which was an issue of dispute between the parties. The same should have been rectified by the learned ARC. The court held that both ARC and RTC had failed to exercise the jurisdiction which was vested in them in failing to condone the purported default of the petitioner and consequently, striking off his defense. Thus the court set aside the order passed by RTC, allowing the petition.
