Yogeshwar Dayal, J.
(1) This second appeal is directed against the order of Rent Control Tribunal dated 15th March, 1982 whereby the Rent Control Tribunal dismissed the appeal filed by the appellants against the order of the 5th Additional Rent Controller, Delhi, dated 18th May, 1981 under clause (a) to the proviso to sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act').
(2) The appeal arises in the following circumstances :-
(3) The landlady in the case is Smt. Sumitra Devi, a widow. The tenants were one Onkar Mal Lakhotia and his son Rama Shankar Lakhotia.
(4) On 7-1-1976 the landlady sent a notice of demand to the tenants demanding rent for the period November and December, 1975. On 7-9-1977 a petition for ejectment was filed by the landlady against berth Onkar Mal Lakhotia and his son Rama Shankar Lakhotia for their failure to pay the rent inspire of notice of demand dated 7th January, 1976.
(5) The tenants filed the written statement and disputed the accommodation mentioned by the landlady as having been let out to them. They pleaded that 'barsati' and the roof on the second floor had also been let out and thus the petition for partial ejectment was bad.
(6) It was also pleaded in the written statement that rent for the period 1-12-1975 to 31-5-1976 has been deposited before the Rent Controller on 7-6-1976 after refusal of Money Order which was sent, covering the rent for December, 1975. It was also pleaded in the written statement that after giving proper notice under Section 44 of the Act, the tenants had got effected annual repairs which the landlady had failed to get and after adjusting one month's rent towards the rent for November, 1975, the rent for December, 1975 was sent by Money Order and thus there was no cause of action and notice of demand was illegal and contrary to law.
(7) On 1-12-1978 after hearing counsel for the parties, the learned trial Court passed an order under Section 15(1) of the Act directing the tenants to deposit the arrears of rent and future rent in accordance with Section 15(1) of the Act.
(8) On 2-12-1978 Shri Onkar Mal Lakhotia, who is one of the joint tenants died. However, an initial deposit of Rs. 3,600 was made on behalf of the tenants on 21-12-1978 covering the arrears of rent up-to-date. On 11-12-1978 an application was filed on behalf of the landlady for bringing cm record the other legal representatives of deceased Onkar Mal Lakhotia, apart from Rama Shankar Lakhotia, who was already on record. By order dated 31st August, 1979 the other legal representatives of Onkar Mal Lakhotia were also brought on record.
(9) On 8th January, 1980 an application was filed on behalf of the landlady that the tenant has committed a default and has not deposited the rent and, thereforee, the. defense of the tenants be struck off. Notice of this application was given to the appellants-tenants. On 17th January, 1980 a reply was filed on their behalf and it was pleaded that there were regular deposits of rent, however, the order under Section 15(1) of the Act stood determined on the death of Onkar Mal Lakhotia and without the amendment of the order, there can be no order under Section 15(1) of the Act against the legal representatives of deceased Onkar Mal Lokhotia. This application came up for consideration before the trial Court on 23rd September, 1980 but nobody appeared on behalf of the tenants. Since there was no report from the Nazir as to the deposits made on behalf of the tenants, the matter was adjourned to 26th September, 1980. Again on 26th September, 1980 nobody appeared on behalf of the tenants and since the report again was not available from the Nazir, the matter was again adjourned to 30th September, 1980. On 30th September, 1980 also nobody appeared on behalf of the tenants and the learned trial Court found that the default in payment is deliberate and contumacious and accordingly struck off the defense and fixed the case for the evidence of the landlady for 6th November, 1980.
(10) On 6th November, 1980 one of the summoned files has not been received so the recording of evidence on behalf of the landlady was adjourned to 2nd March, 1981. When the case came up for recording evidence on behalf of the landlady on 2nd March, 1981, counsel for the tenants was absent and the trial Court passed the following orders :-
'2.3.81Present-Petr. with counsel Shri O.P. Gupta, Adv. One of the L. Rs. Raj Kumar is present. It is stated that counsel for respondent is in High Court. He be awaited for. A.R.C.'
(11) After waiting for sometime the learned trial Court passed the following orders.
'2.3.81Present-Ptr. with counsel Shri O. P. Gupta, Adv. One of the L. Rs. Raj Kumar is present. It is 12.50 P.M. Counsel for respondent has not turned up. Statement of AW-1 recorded. Opportunity to cross-examine given to Raj Kumar, no cross-examination conducted. Petitioner evidence closed. Arguments heard. Now to come up for orders on 3-3-1981. sd/- A.R.C.'
(12) It transpires that sometime after the passing of this order; on the same date, an application was filed purporting to be under Section 151 of the Code of Civil Procedure read with Order 9 of the Code of Civil Procedure. In this application it was averred that one of the applications for staying the suit under Section 10 of the Code of Civil Procedure is pending decision and it should be decided. It was also pleaded that the counsel for the tenants was busy in the High Court till about 11.35 A.M. and that the tenants should be given a chance to cross-examine the landlady.
(13) On notice being given to the landlady she filed a reply challenging the submission that the counsel was busy in the High Court and it was pointed that no particulars were given as to in which case the counsel was busy. It was also pointed out that the application for stay of suit under Section 10 of the Code of Civil Procedure was not pressed.
(14) The application moved by the tenant on 2nd March, 1981 was dismissed by order dated 2nd May, 1981.
(15) Reverting back, it may be stated that during her statement in Court, the landlady deposed that she had not received the rent for November and December. 1975 and thereafter she had given the notice of demand dated 7th January, 1976 (Ext. AW.UD and in spite of notice of demand, no rent had been received. She also stated that no repairs were made in the house as. claimed in the written statement. The landlady also placed on record a copy of the application filed by the tenants for deposit under Section 27 of the Act (AW. 119) as well as the reply thereto filed by the landlady (AW. 1/10). She also placed on record the rent receipt and the counter-foil (Exts. AW. 116 and AW. 117) which show the extent of the premises let out to the tenants.
(16) Thereafter since the defense of the tenants had been struck off and no opportunity had been availed of by the tenants to cross-examine the landlady, the learned Additional Rent Controller, by way of impugned order dated 18th May, 1981 passed the order for ejectment against the appellants-tenants under the aforesaid ground and granted one month's time to vacate the premises.
(17) As stated earlier, the appeal betore the Tribunal also failed.
(18) During the hearing of the present appeal I have had the advantage of hearing Shri K. L. Sethi, learned counsel for the, appellants, at great length.
(19) One thing may be mentioned that the validity or otherwise of the order dated 1st December, 1978 passed by the learned trial Court under Section 15(1) of the Act was not challenged before the Tribunal nor that order has been challenged before me.
(20) The submissions made by the learned counsel for the appellants before the were as under:-
1.That though the defense of the tenants was struck off, he was entitled to cross-examine the landlady and he had not been given proper opportunity to cross-examine the landlady when she appeared in the witness box. 2. That the eviction petition was incompetent as it was partial eviction from the premises. 3. That the notice of demand was illegal and void and in this connection it was submitted that the tenants had given notice under Section 44 of the Act and had thereafter got effected repairs and were entitled to adjust one month's rent, which they had adjusted and one month rent for December, 1975 had been sent by Money Order. 4. That the tenants had moved an application as far back as February, 1978 for staying the suit inasmuch as the controversy as to the exteat of premises let out was pending before the regular civil court before the filing of the ejectment petition and this application had never been decided. 5. That the order under Section 15(7) of the Act should not have been passed as there was no default made by the appellants deliberately or contumaciously. 6. Their conduct had been upright and they had never been in areas before the filing of the ejectment application.
(21) I will deal with the last two submissions first.
(22) It is clear that the order under Section 15(1) was passed on 1st December, 1978 and in spite of death of Shri Onkar Mal Lakhotia on 2nd December, 1978, a deposit of Rs. 3,600.00 had been made on 21st December, .1978 and thereafter the legal representatives were brought on record on 31st August, 1979. But after the initial deposit of Rs. 3,600.00 , the Tribunal has found that three more deposits were made on 19-1-1979, 17-3-1979 and in March, 1980 amounting to Rs. 120.00 , 360.00 and Rs. 120.00 respectively.
(23) It will be noticed that the initial deposit of Rs. 3,600.00 cover the arrears of rent up to 30th November, 1978 and thereafter the aforesaid three deposits totalling Rs. 600.00 were only made. These deposits, of Rs. 6001- would cover the rent for the five months only. thereforee they would cover the rent for the period December, 1978 to April, 1979. No deposit admittedly was made for a period beyond that Even when the application was filed for striking out the defense as tote as 8th January 1980 inspire of no further deposit a curious position was taken that the order under Section 15(1) stood determined and an averment was also made in reply that regular deposits had been made. This latter averment is patently and deliberately false.
(24) Apart from initial deposit of Rs. 3,6001- and the further deposit in three Installments covering only five months rent. no other deposit was made and no other deposit even today was claimed to have been made till the date of passing of the order striking off the defense.
(25) Again it is a peculiar case that in spite of an application under Section 15(7) of the Act, both the appellants and the counsel deliberately absented themselves when the application under Section 15(7) was taken up for decision. I find that three dates were fixed for consideration of application under Section 15(7) of the Act but on all the three dates neither the tenants nor their counsel had appeared. It was in these circumstances that the trial Court had no option but to strike off the defense of the tenant's.
(26) Mr. Sethi submitted that after the filing of the appeal before the Rent Control Tribunal, his clients had deposited the entire rent. I am afraid this submission is absurd and has no bearing to say the least. One has to look at the conduct of the party before the order of striking off the defense passed or when the application for striking off the defense is filed or before that and not afterwards. There was no handicap even by the death of father as the son was joint tenant and was equally liable to pay the rent. It wse a wholly misconceived objection that the order under Section 15(1) of the Act stood determined after the death of Onkar Mal Lakhotia. Such pleas are taken when there is no defense. Pleas are taken only to confuse the Court delay the matter. Order under Section 15(1) of the Act was binding on Rama Shankar Lakhotia as well as other legal representatives of Onkar Mal Lakhotia. They were duty bound to continue to deposit the rent if they wanted to contest the proceedings.
(27) I may refer to my decision in the matter : AIR1982Delhi217 : Mohd. Suolin and others vs. Sunita Chugh. There can be no doubt that the power to strike off the defense is discretionary and should be only exercised sparingly in extreme cases of contumacious and deliberate default and not in cases of bona fide mistake.
(28) But what do we find here? Even after the application under Section 15(7) was filed, a plea was taken that the appellants have been making regular deposits. This was found to be a false plea. I also feel that it was taken deliberately when the appellants very well knew of the deposits they had made. As I have noticed earlier the deposits cover the period up to April, 1979. The application for striking off the defense was filed on 8th January, 1980 and reply thereto was filed on 17th January, 1980. When the application came up for hearing, the appellants and their counsel deliberately absented themselves as they could not show any other deposit being made. It was in these circumstances that the defense was struck off. If it was a case of bona fide mistake, the appellants may have shown their bona fides by depositing the rent when they were served with the application for striking off the defense: Instead, what do we find that they took a false plea of making the regular deposits and also took a misconceived plea that the order under Section 15(1) of the Act required to be amended. The appellants bad themselves made the deposit of Rs. 3,6001- even at the time when the legal representatives were not brought on record, and after the legal representatives were brought on record, they made only three deposits as noticed earlier, as successors in interest of deceased, in whose place they had been substituted. The legal representatives were bound by the order so far as passed by the Court. I have, thereforee) no option but to hold that looking at the entire conduct of the appellants during the pendency of the ejectment, application, that they not only took a false plea of regular deposits but also failed to appear to contest the application, which was under consideration before the Additional Rent Controller, under Section 15(7) of the Act, and also failed to make the deposits after notice of the application, and, thereforee, their conduct was deliberate and contumacious in failing to deposit the rent as required by Section 15(1) of the Act. thereforee, nothing can be really urged against the correctness of the order passed by the learned trial Court striking off the defense of the appellants.
(29) The position thus boils down to this that the Court was dealing with the case for ejectment on the ground of I non-payment of rent and the only plea in defense was that a tender had been made by way of Money Order for one month. That no tender was made for the second month, for which the rent was demanded, as that rent stood adjusted while carrying outannual repairs after giving notice under Section 44 of the Act.
(30) It will be noticed that in the written statement no plea whatsoever was taken as to when the alleged Money Order for one month rent was sent. Whether it was within two months of the service of notice of demand or thereafter The plea that they were entitled to adjustment of rent for one month on account of annual repairs is also belied by the fact that on a similar allegation an application was filed under Section 27 of the Act when deposit was made in the Court of Shri O. P. Dwivedi, Additional Rent Controller, Delhi, on 7-6-1976 for the period from 1-12-1975 to 31-5-1976 amounting to Rs. 720.00 where the plea taken was that the tenants were entitled to adjustment for one month rent, for the month of November on account of annual repairs, This application is on record as Ext. AW. 119.
(31) A reply was filed on behalf of the landlady disputing any repairs being made and when the matter came up for trial, the tenants as well as their counsel absented themselves and the application under Section 27 of the Act was dismissed by order Ext. AW. I Iii on 18-8-78.
(32) It will be noticed that once the orders under Section 15(1) and 15(7) of the Act are held to be correct then one is not concerned with the plea regarding partial ejectment. However, on record the landlady had filed the rent receipt and the counter-file (Exts. AW. 116 and AW. 117) which show that the premises described in the ejectment application are the premises which were let out. In any case once the defense for ejectment was struck off, one need not go further into the question whether the petition was for partial ejectment or not. There is thus no merit in this submission of learned counsel for the appellants.
(33) Similarly there is no merit in the submission of the learned counsel for the appellants that the notice of demand was bad. In the written statement it was not stated when the Money Order was sent and when the tender was refused. It is true that in the evidence the landlady admitted the receipt of Money Order and declined to accept it as it was short of the amount of rent due. But there is no evidence that the Money Order was sent within two months from the date of notice of demand. No postal receipt for sending the one month's rent and the Money Order form by which it was tendered was placed on record to know the date of tender. thereforee, there is nothing to show that the notice of demand was illegal.
(34) Coming to the first submission, which is the main submission in the case, namely whether the appellants were given opportunity to cross-examine the evidence led by the landlady. I have already reproduced the order-sheet of the trial Court for 2nd March, 1981.
(35) It will be noticed that this case was fixed for evidence on 6th November, 1980 and the counsel and the appellants had sufficient notice that the matter was fixed for evidence. When the case was called initially only one of the legal representatives was present and it was pointed out to the trial Court that the counsel has gone to the High Court and, thereforee, the trial Court rightly, I may say exercised the discretion in waiting for the counsel to come. But how long are the courts to wait Half the day had practically finished when the case was again called and again the counsel was absent. It was in these circumstances that the trial Court I examined the landlady as her own witness. The statement of the landlady is in about 4 pages and is hand-written. This itself would have taken sometime to record and thereafter an opportunity was given to the person, who was present on behalf of the tenants, to cross-examine the landlady and it was only on his failure to cross-examine, that the learned trial Court closed the evidence. Arguments were also heard by the learned trial Court and the case was fixed for orders on 3rd March, 1981. It was only after this that the application under Section 151 read with Order 9 of the Code of Civil Procedure was filed pointing out that an application under Section 10 of the Code of Civil Procedure is penning decision and the same should be decided and that the tenants be granted an opportunity to cross-examine the landlady as their counsel was busy in the High Court.
(36) For one thing as to when the counsel for the appellants was available to cross-examine the landlady, the averments made in the application for re-calling the witness is contrary to the record of the learned trial Court. It appwars from the record of the learned trial Court that the evidence was being recorded or started to be recorded at about 12.50 P.M. The date of evidence had been fixed long time back and it was the duty of the counsel either to be available for cross-examining the witness or to make alternative arrangement so that atleast the cases fixed for evidence was not adJourned due to absence of the counsel. The trial Court even waited for the counsel for a considerable time. Counsel should also not take the courts for granted. With great difficulties the cases are made ripe for evidence.
(37) In these circumstances looking at the fact that the appellants did not even care to oppose the application under Section 15(7) of the Act and looking at the fact that the trial Court had waited for the counsel for a sufficiently long time, it cannot be said that the discretion exercised by the learned trial Court was arbitrary.
(38) Mr. Sethi then submitted that had his client been granted an opportunity to cross-examine the landlady, he would have demolished the case of the 'landlady; would have proved that they had effected the repairs and they were entitled for adjustment of the rent and also would have proved the tender of rent by Money Order.
(39) All these submissions to my mind are meaningless. Proceedings, under Section 27 of the Act were started by the appellants wherein the appellants took the plea that they are entitled to adjustment for one month's rent but they themselves allowed the proceedings to be dismissed in default after the landlady had entered into contest. There was also no material placed on record as to who had effected the repairs, when and where from the material was purchased for effecting repairs.
(40) However, it is too late in the second appeal where the discretion exercised by the learned trial Court has been upheld by the lower appellate Court, to interfere with that discretion where it cannot be said that the discretion exercised is arbitrary or in any manner unreasonable. On the facts of the case no substantial question of law is involved in this respect.
(41) There is thus no merit in this submission also and I agree with the learned lower Appellate Court that the tenant-appellants were given opportunity to cross-examine the landlady but they failed to avail of the same.
(42) There is thus no merit in this appeal and the same is dismissed with costs. Counsel for Rs. 300.00 .
(43) The appellants are, however, granted one month's time from today to vacate the premises.