Supreme court: It is not mandatory for tenancy court to strike off defence of tenant for non payment of arrears of rent

The inevitable result on comparison of Section 13(5) of the Act,

1952 and Section 15(7) of Act, 1958 be that the Court would not be

bound to strike out the defence against ejectment in case of default in

payment of rent in compliance to the order passed under Section 15(1)

of the Act, 1958 and it is always open to the Controller to examine the

facts of each case while exercising its discretion which obviously has

to be judicious in approach and with circumspection.

18. While interpreting Section 15(7) of Act 1958, V.R. Krishna Iyer, J.

in Miss. Santosh Mehta Vs. Om Prakash and Ors. 2 1980(3) SCC 610  held that the

power to strike out a party’s defence is an exceptional step and has

only to be exercised where a “mood of defiance” and “gross negligence”

on the part of the tenant is detected. This Court warned against the

landlord using Section 15(7) as a “booby trap” to get the tenant

evicted. It would be better to reproduce the passage which indicate

the approach which has to be adopted in such matters by the Court.

The relevant paras 3 & 4 are as under:“

3. We must adopt a socially informed perspective while

construing the provisions and then it will be plain that the

Controller is armed with a facultative power. He may, or may

not strike out the tenant's defence. A judicial discretion has

builtinselfrestraint,

has the scheme of the statute in mind,

cannot ignore the conspectus of circumstances which are

present in the case and has the brooding thought playing on

the power that, in a court, 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. First of all,

there must be a failure to pay rent which, in the context,

indicates wilful failure, deliberate default or volitional nonperformance.

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 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. The last resort cannot be converted into the first

resort; a punitive direction of court cannot be used as a

booby trap to get the tenant out. Once this teleological

interpretation dawns, the mist of misconception about

matterofcourse

invocation of the power to strike out will

vanish. Farewell to the realities of a given case is playing

truant with the duty underlying the power.

4. …..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 due circumspection.”

19. Subsequent decisions rendered on the subject also recognises

that mere failure to pay rent on the part of the tenant is not enough to

justify an order striking out the defence. It is only a wilful failure or

deliberate default or volitional of nonperformance

that can call for the

exercise of the extraordinary power vested in the Court. More

importantly, the plentitude of the discretionary power of the Court

under Section 15(7) of the Act, 1958 is with the Rent Controller

whether or not to strike out the defence, needless to say that the effect

of striking out the defence under Section 15(7) of Act, 1958 is that the

tenant be deprived of the protection available to him under Section 14

and it is imperative that such power vested with the Rent Controller

under Section 15(7) of the Act, 1958 must be exercised with due care

and circumspection.

20. In Smt. Kamla Devi Vs. Shri Vasudev 3, this Court reiterated

3 1995(1) SCC 356

that the power to strike out the defence simply vested the Rent

Controller with the discretion to do so. It was not mandatory for the

Rent Controller to strike out the defence simply because a default had

occurred. It is imperative that exercise of discretion vested with the

authority obviously depends upon the facts and circumstances of each

case and is not open to be exercised under the rule of thumb.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 4563 OF 2014

DINA NATH Vs  SUBHASH CHAND SAINI 

Rastogi, J.

Dated:SEPTEMBER 24, 2019

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Whether court can strike off defence of party if he fails to appear before mediator?

The reading of the above provision makes it very clear that neither Section 89 of Code of Civil Procedure nor Order 10 Rule 1-A nor the Karnataka (Case Flow Management in Sub-ordinate Courts) Rules 2005 nor the Karnataka Code of Civil Procedure (Mediation) Rules 2005 provide for striking of the defence for non-appearance of the parties before the Mediator. Only Sub-rule (2) of Rule 13 of the Karnataka Code of Civil Procedure (Mediation) Rules 2005 contemplates that the Court may impose cost for non-appearance of the parties before the Mediator. Hence, I am of the view that the order passed by the Learned Civil Judge striking off the defence of Defendants 1 to 3 is contrary to law and Rules referred above. If the parties fail to appear before the Mediator, the Court may impose some penalty fixing some other date to appear before the Mediator and accordingly the order passed by the Learned Civil Judge striking off the defence of the Defendants is liable to be set aside.

IN THE HIGH COURT OF KARNATAKA

W.P. No. 2208/2009 (GM- CPC)

Decided On: 16.04.2010

 Rudraaradya Vs.  Nanjundappa @ Nanjundaswamy and Anr.

Hon'ble Judges/Coram:

B. Manohar, J.

Citation: ILR 2011Kar 221

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Whether court can direct occupant to deposit damages if it is not proved that he is tenant?

A plain reading of the aforesaid provision would make it manifest that for application of the Order XV-A, it must be a suit by a lessor or a licensor against a lessee or a licensee. In the present case, the respondents did not approach the trial Court with a case that they are lessors. They did not state the rate of rent agreed between the parties. They did not assert that the tenancy of the petitioner was attorned in their favour. They are the purchasers of the house property and as such the earlier existing tenancy would stand attorned if the appropriate communication is made to the tenant. The case of the respondents is that the petitioner has encroached over one of the room and had occupied another room by consent of the previous owner. The provision of Order XV-A would come into play only when there is prima facie evidence to show that the rent or licence fees was agreed between the parties and a particular sum could be charged as a liability. The next significant aspect is that the learned trial Court further passed order of striking off the defence of the petitioner on account of non-compliance of the impugned order. For this purpose, Sub-rule (2) of Order XV-A is required to be considered. It is conspicuous that before passing order for striking off the defence, the Court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause shown in order to decide as to whether the defendant should be relieved from the order striking off the defence. Thus, the legislature has offered second opportunity to the defendant before striking off the defence and has afforded right of hearing. Such a person can show cause as to why the order could not be complied with and in that case, after application of judicial mind, the Court has discretion to relieve such a person from such an order of striking off the defence. Needless to say, the striking off the defence is not automatic only because of non depositing of the amount as directed by the Court. The defence cannot be so lightly struck off as has been done in the present case.

These observations of the trial Court would show that the trial Court was unmindful to the pleadings of the parties. The respondents/plaintiffs were not praying that the defendant shall be directed to deposit Rs. 36,000/- towards arrears of rent. What they prayed was that amount of compensation and damages for use and occupation of the premises shall be directed to be deposited. It was necessary for the trial Court to first determine, prima facie, whether there exists relationship of lessor and lessee between the parties and then to determine quantum of rent agreed between them. Without undertaking such exercise, the trial Court proceeded to assume that amount of Rs. 36,000/- is due from the petitioner. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 100 of 2006

Decided On: 17.10.2006

Radheshyam  Vs. Tuljaprasad and Ors.

Hon'ble Judges/Coram: 

V.R. Kingaonkar, J.

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Whether court can strike off defence if defendant commits default in deposit of license fee in eviction suit?

In the present case there is no question of any claim of arrears being barred by the law of limitation. Under Order XXXIX Rule 11 which is introduced in the Civil Procedure Code by Rules made by the Bombay High Court in 1983, "where the Court orders any party to a suit............to do or not to do a thing during the pendency of the suit,.................and such party commits any default in respect of or contravenes such order.............the court may............strike out the defence if the default............is committed by the defendant..........." Hence the Small Cause Court also has power to order the striking off of defence if the defendant commits defaults in depositing license fee.

IN THE HIGH COURT OF BOMBAY

Writ Petn. No. 3870 of 1984

Decided On: 03.05.1985

Sangeeta Prints Vs Hemal Prints and Ors.

Hon'ble Judges/Coram:

S.V. Manohar, J.

Citation: AIR 1986 423

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When court should not strike off defence for non payment of rent amount?

 In Shyamcharan Sharma (supra), the Supreme Court while
considering Section 13(6) of the Act of 1961 has held in no
uncertain terms that Section 13(6) of the Act of 1961 is
discretionary in nature and court has power under Section 13(6) to
condone delay in depositing rent and condensely crystallized as
under: -
"4. ... 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 striking 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). 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). One of the arguments advanced before us was
that there was no express provision for extension of
time for deposit or payment of monthly rent
subsequent to the filing of the suit whereas there was
such express provision for payment or deposit of
arrears of rent that had accrued before the filing of the
suit. Obviously, express provision for extension of
time for deposit or payment of rent falling due after the
filing of the suit was not made in Section 13(1) as the
consequence of non-payment was proposed to be
dealt with by a separate sub- section, namely Section
13(6). Express provision had to be made for extension
of time for deposit or payment of rent that had accrued
prior to the filing of the suit, since that would ordinarily
be at a very early stage of the suit when a written
statement might not be filed and there would,
therefore, be no question of striking out the defence
and, so, there would be no question of Section 13(6)
covering the situation."
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Art. 227) No.152 of 2016
Pawan Verma,
V
Sanjay Kumar Hanumanta, 
Hon'ble Shri Justice Sanjay K. Agrawal
Dated: 15/11/2016
Citation: AIR 2017(NOC) 138 Chh

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Whether court can strike off defence If interim maintenance granted U/S 24 of Hindu marriage Act is not paid?

Section 24 of the Act empowers the matrimonial court to award maintenance pendente lite and also litigation expenses to a needy and indigent spouse so that the proceedings can be conducted without any hardship on his or her part. The proceedings under this Section are summary in nature and confers a substantial right on the applicant during the pendency of the proceedings. Where this amount is not paid to the applicant, then the very object and purpose of this provision stands defeated. No doubt, remedy of execution of decree or order passed by the matrimonial court is available under Section 28A of the Act, but the same would not be a bar to striking off the defence of the spouse who violates the interim order of maintenance and litigation expenses passed by the said Court. In other words, the striking off the defence of the spouse not honouring the court's interim order is the instant relief to the needy one instead of waiting endlessly till its execution under Section 28A of the Act. Where the spouse who is to pay maintenance fails to discharge the liability, the other spouse cannot be forced to adopt time consuming execution proceedings for realising the amount. Court cannot be a mute spectator watching flagrant  disobedience of the interim orders passed by it showing its helplessness in its instant implementation. It would, thus, be appropriate even in the absence of any specific provision to that effect in the Act, to strike off the defence of the erring spouse in exercise of its inherent power under Section 151 of the Code of Civil Procedure read with Section 21 of the Act rather than to leave the aggrieved party to seek its enforcement through execution as execution is a long and arduous procedure. Needless to say, the remedy under Section 28A of the Act regarding execution of decree or interim order does not stand obliterated or extinguished by striking off the defence of the defaulting spouse. Thus, where the spouse who is directed to pay the maintenance and litigation expenses, the legal consequences for its non-payment are that the defence of the said spouse is liable to be struck off.

Punjab-Haryana High Court

Jagtar Singh vs Veerpal Kaur on 12 January, 2015

Citation; AIR 2015 (NOC)906 P&H

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Whether it is permissible to Strike of defence for non-compliance of order of discovery?

Order XI, rule 21 of the Code of Civil Procedure reads: "21. Where any party fails to comply with any order to answer interrogatories, or for discovery of inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence; if any, struck out, and to be placed in the same position as if he had not defended. and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made accordingly."

It is well settled that the stringent provisions of order XI, rule 21 should be applied only in extreme cases, where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established.

An order striking out the defence under order XI, rule 21 of the Code should, therefore, not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful attempt to disregard the order of the court. The rule must be worked with caution, and may be made use of as a last resort:

 The principle governing the court's exercise of its discretion under Order XI, Rule 21, as already stated, is that it is only when the default is wilful and as a last resort that the court should dismiss the suit or strike out the defence, when the party is guilty of such contumacious conduct or there is a wilful attempt to disregard the order of the court that the trial of the suit is arrested. Applying this test, it is quite clear that there was no wilful default on the part of the defendant of the court's order under Order XI, Rule 18(2) for the production of documents for inspection, and consequently, the order passed by the trial court on 23 May, 1967, striking out the defence of the defendant must be vacated, and the trial must proceed afresh from the stage where the defendant was not permitted to participate.

Supreme Court of India

Babbar Sewing Machine Co vs Trilok Nath Mahajan on 7 August, 1978

Equivalent citations: 1978 AIR 1436, 1979 SCR (1) 57

Hon'ble Judges/Coram:

A.N. Sen, D.A. Desai and Jaswant Singh, JJ.

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Whether court can dismiss the suit or strike off defence for non production of documents?

 In the instant case, the trial Court had, by an order dated 16-1-2006, directed the appellant Zilla Parishad, Aurangabad to produce certain documents of which a notice to produce the documents was filed on behalf of the plaintiff. The appellant Zilla Parishad, Aurangabad was not able to produce those documents before the Court on the date which was specified in the order. Non-production of the documents, which are directed to be produced in pursuance of a notice, would not entail or result into consequences which are provided under the provisions of Order 39 Rule 11 of the Code of Civil Procedure. The drastic step of striking out the defence of the defendant or the opponent could not be taken merely because the defendant has failed to produce a document which was directed to be produced by the Court. Normally, failure to produce a document which is directed to be produced, would at the most result in drawing an adverse inference against the party who fails to produce it thereby resulting in an advantage to the other party at whose instance the document was sought to be produced on record. However, the Court cannot exercise the jurisdiction under Rule 11 of Order 39 of the Code of Civil Procedure in such a case for either dismissing the suit of the plaintiff or striking out the defence of the defendant or the opponent. To hold that the powers under Order 39 Rule 11 of the Code of Civil Procedure could be invoked in such a case would result in drastic consequences.

Bombay High Court

Zilla Parishad And Anr. vs Punarjanma Rewinders And ... on 31 August, 2006

Equivalent citations: 2006 (6) MhLj 661,2006 BCI234 Bom

JUDGMENT Vasanti A. Naik, J.

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Whether defence of husband is liable to be struck off if he fails to pay maintenance and litigation expenses to wife?

No doubt, wife can file a petition under Order 21 Rule 37 CPC for the recovery of this amount and the husband can be hauled up under the Contempt of Courts also for disobedience of the aforesaid Court's order, but Section 24 of the Act empowers the matrimonial Court to make an order for maintenance pendente lite and for expenses of proceedings to a needy and indigent spouse. If this amount is not made available to the applicant, then the object and purpose of this provision stand defeated. Wife cannot be forced to take time consuming execution proceedings for Realizing this amount. The conduct of the respondent husband amounts to contumacy. Law is not that powerless as to not to bring the husband to book. If the husband has failed to make the payment of maintenance and litigation expenses to the wife, his defense can be struck out. No doubt, in this appeal he is respondent. His defense is contained in his petition filed under Section 13 of the Act. in a plethora of decisions of this Court Smt. Swarno Devi v. Piara Ram 1975 HLR 15; Gurdev Kaur v. Dalip singh 1980 HLR 240; Smt. Surinder Kaur v. Baldev singh 1980 HLR 514, Sheela Devi v. Madan Lal 1981 HLR 126 and Sumarti Devi v. Jai Parkash 1985 (1) HLR 84 it is held that when the husband fails to pay maintenance and litigation expenses to the wife, his defense is to be struck out. The consequence is that the appeal is to be allowed and his petition under Section 13 of the Act is to be dismissed.

Delhi High Court

Smt. Santosh Sehgal vs Shri Murari Lal Sehgal on 12 May, 2006

Equivalent citations: AIR 2007 Delhi 210, 130 (2006) DLT 643, II (2006) DMC 179

Bench: V Jain, S Aggarwal

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