Yogeshwar Dayal, J.
(1) This is a second appeal under Section 39 of the Delhi Rent Control Act. 1958 (hereinafter referred to as 'the Act') against the order of the learned Rent Control Tribunal dated of 22/7/1977 whereby the learned Rent Control Tribunal set aside the order dated 10/2/1977 passed by the learned Additional Rent Controller, Delhi and ordered that the defense of the appellant be struck off under Section 15(7) of the Act.
(2) The facts leading to the appeal are that on 15-5-1972 a petition was filed for eviction of the appellant by the respondent on various grounds including ejectment on the ground of non-payment of rent. It was stated by the landlord in the ejectment application that the arrears of rent are due @ Rs 59-62 ps. since 1-10-1955 which have not been paid inspire of notice of demand.
(3) In relation to this claim the plea of the appellant was that the rate of rent was Rs. 26-25 ps. per month and not Rs. 59-62 ps. per month. The receipt of notice of demand was denied and it was also pleaded that there was no question of refusal to accept notice of demand. It was also denied that any notice was affixed on the premises.
(4) After hearing the parties, on 9th January, 1973 the learned Additional Rent Controller passed an order under Section 15(1) of the Act requiring the appellant, to deposit arrears of rent with effect from 1st May, 1969 @ Rs. 26.25 ps. per month. The appellant deposited the following amounts on the following dates thereafter :---
Amount Date Rs. 1,207.50 31-1-1973 Rs. 157.50 12-3-1973 Rs. 105.00 3-9-1973 Rs. 78.75 1-1-1974 Rs. 157.50 26-3-1974 Rs. 157.50 4-9-1974 Rs. 78.75 20-3-1975 Rs. 52.50 8-7-1975 Rs. 157.50 19-8-1975 (rent up to 29-2-76)
(5) The appellant also deposited a sum of Rs. 315.00 on 20-1-1977 which is the rent for the period from 1-3-1976 to 28-2-1977.
(6) It will be noticed that up till 29th August, 1975 the rents were being deposited in advance for various months and as on 29th August, 1975 the rent had been deposited right up till 29th February, 1976.
(7) It appears that the landlord Nirmal Chand, who filed the eviction petition, had died on 3rd February, 1976 and unfortunately his son Sh. Balbir Sahai had also died on 6th February, 1976.
(8) It was only on 21st May, 1976 Smt. Sunila Chugh, wife of Balbir Sahai Chugh was allowed to be substituted in place of deceased Nirmal Chand and an application was filed six months thereafter on 23rd November, 1976 under Section 15(7) of the Act for striking out the defense of the appellant for having failed to deposit the monthly rent due with effect from 3-3-1976.
(9) On this application being filed, the appellant filed a reply on 2-21977 but before filing the reply he had deposited, on 20-1-1977 a sum of Rs. 385.00 covering the rent for the period 1-3-1976 to 28.2.1977.
(10) In the reply to the application for striking out the defense all these above said deposits were brought out and specifically mentioned. It was also submitted that there was no order under Section 15(1) of the Act.
(11) The learned Additional Rent Controller after noticing the aforesaid conduct declined to exercise his discretion for striking out the defense of the appellant and observed as under :-
'THEabove deposite show that the entire rent has been deposited by the respondent. It has been submitted from the side of the petitioner that the amount has been deposited in advance, thereforee. the same is invalid. This is a question to be taken into consideration at the time of the passing of the final order but the fact remains that the entire amount has been deposited and it will be too harsh to strike off the defense of the respondent simply because the respondent has deposited the rent in advance, I, thereforee, decline to strike off the defense of the respondent and dismiss the application.'
(12) The respondent being dissatisfied with the order of the Additional Rent Controller went up in appeal to the Tribunal and the learned Rent Control Tribunal noticed that the rent for the period 1.3.1976 to 28.2.1977 was deposited only on 20.1.1977 i.e. after the receipt of notice of the application under Section 15(7) of the Act. The operative part of the order of the learned Rent Control Tribunal is as under :-
'THElearned counsel for the respondent has however, urged that on account of death of original landlord, the respondents somehow felt that they were no longer under any obligation to deposit the rent. However he has not been able to explain why the rent was not deposited even after the appellant had been allowed to be substituted as L.R. of the original landlord vide order dated 21.5.76. Thus the rent was deposited by them only after the application for striking out the defense has been made. Failure on their part to deposit rent for such a long period would not warrant inference that the omission was accidental or bona fide. Any how no Explanationn whatsoever was furnished by them in the reply to the said application. Under the circumstances, I find no justification turn sustaining the impugned order.'
(13) Before me Mr. A.B. Saharaya, learned counsel for the appellant, has submitted that the discretion has not been exercised by the Tribunal on correct principles and the learned Tribunal while exercising discretion of reversing the order of the Additional Rent Controller has ignored the principles laid down by the Supreme Court and this Court in catena of cases formulating the principles on which powers under Section 75(7) of the Act could be exercised. He referred to me the decisions in V. K. Verma v. Radhey Shyam : AIR1964SC1317 ; Sh. Hem Chand v. The Delhi Cloth & Generals Mills Co. Ltd. and another Air 1977 S.C. 7986 ; Bimal Chand Jain v. Sri Gopal Agarwal : 1SCR124 ; M/s Bharat Pulvising Mills Pvt. Ltd. v. Tara Chand Malik Charitable Trust and Ors. 1973 5 R.C.R. 1 and M/s Arian Afghan Airlines Co, Ltd. v. M/s Cycle Equipments (P) Ltd. (7978) 2 Del 377 and submitted that it is not every default which calls for striking out of the defense under Section 15(7) of the Act because the default has to be contumacious and thus submitted that since the discretion has not been exercised by the learned Rent Control Tribunal on correct principles, it raises a substantial question of law and is liable to be set aside in second appeal.
(14) In V. K. Verma v. Radhey Shyam referred to earlier the Supreme Court observed as under :-
'UNDERthe old Act the Court had no option but to strike out the defense if the failure to pay or deposit the rent was proved; under the new Act the Controller who takes the place of the court has a discretion in the matter, so that in proper cases he may refuse to strike out the defense. Consequently the Court would not be bound to strike out the defense against ejectment but may or may not do so on a consideration of the circumstances.'
(15) In the case of Hem Chand v. The Delhi Cloth & General Mills Co. Ltd. referred to earlier the Supreme Court again affirmed its decision in the case of V. K. Verma v. Radhey Shyam.
(16) While interpreting Order 15 Rule 5(1) and (2) of the Code of Civil Procedure the Supreme Court observed, in the matter of Bimal Chand Jain v. Sri Gopal Agarwal (supra), as under :-
'ANorder under sub-rule (1) striking off the defense is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defense if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub-rule (2), the defense should or should not be struck off. The word 'may' in sub rule (1) merely vests power in the court to strike off the defense. It does not oblige it to do so in every case of default.'
(17) Kapur, J. in the aforesaid matter of M/s Bharat Pulvarising Mills Private Ltd. New Delhi v. Tara Chand Malik Charitable Trust and Ors. in an elaborate judgment observed as under :-
'THISis not a provision for punishing the tenant. The sub-section is intended to enable the court to have an effective way of enforcing compliance with its orders under Section 15. In the case of failure to deposit the rent, the Controller has a discretion to strike out the defense but normally such a penalty will be imposed only when there is a contumacious or willful disregard of the order. If there is a merely late compliance of the order, I do not think it can be considered to be contumacious or willful disregard of the order. The provisions of Section 15(7) must be read to be not dissimilar to the provisions of Order 13, Rule 21, Civil Procedure Code where it is settled law that only a willful or contumacious default in complying with the order for discovery or inspection can lead to the striking out of the defense.'
(18) Again a Division Bench of this Court in the aforementioned case of M/s Arian Afghan Airlines Co. Ltd. v. M/s Cycle Equipments (P) Ltd. observed as under:-
'WHILEit is not possible to lay down exhaustively the circumstances in which an order striking out the defense may follow, for that is what the Legislature left unsaid in its wisdom. Where, however, the tenant has substantially complied with the order or there are circumstances of a motivator nature, it would not be proper to strike out the defense and deprive the tenant of the opportunity to defend an ejectment action.'
(19) It will be noticed that in the present case the landlord had died. A view had been taken by the Supreme Court in Phul Ram & Ors. v. Naubat Rai Ahluwalia : 3SCR679 'that death of the plaintiff will not abate an ejectment application but an ejectment application on the ground of bona fide personal requirement of the landlord may abate'. This view of the Supreme Court was reversed by the Supreme Court in his judgment reported as 1976 R.L.R. 606 in the case of Shantilal Thakardas v. Chimanlal.
(20) The present application for ejectment was also inter alias on the ground of bona fide personal requirement. That is why it was contended before the Tribunal, in the present case, that the appellants somehow felt that the proceedings have abated and thereforee they have no obligation to deposit the rent after the death of the landlord. If one looks at the conduct of the appellants one notices that right from February 1973 till 29th August, 1975 the rent was invariably being deposited in advance and some time to the extent of more than six months in advance and even the last payment which was made before the filing of the application for striking out the defense by the landlord a deposit had been made on 29th August, 7975 which covered the payment of rent right till 29th February, 1976. This conduct shows that the appellants never wanted to withhold the rent and in fact out of abundant caution, so that they may not commit a default, they had invariably deposited the rent in advance.
(21) The Tribunal unfortunately completely ignored that while passing an order under Section 15(7) of the Act it is not the default which has to be looked into but it has also to see the circumstances and the previous conduct of the tenant. It cannot besaid on the facts of the present case that the circumstances were such or the conduct was such that an order for striking out the defense must be passed. The learned trial court for good reasons looking at the past conduct of the appellants declined to strike off the defense and also noticed, as soon as the application was filed, the appellants realised their mistake and much before the application for striking out the defense came up for decision, the appellants had deposited the entire rent. The Controller had also noticed the previous conduct of the tenants in paying rent much in advance to the time when it become due even. The default could not be called contumecious or willful.
(22) In these circumstances it must be held that the Tribunal committed a grave error of law in striking off the defense of the appellants under Section 15(7) of the Act. The Tribunal did not take into account the aforesaid principles laid down in the aforesaid authorities and juncked to the conclusion. Merely because the default remains unexplained, the Tribunal was duty bound to strike out the defense, is not the correct approach. All the facts and circumstances of the case have to be seen and unless, as observed by Kapur J, the default is contumacious the defense ought not to have been struck off.
(23) Learned counsel for the respondent submitted that no second appeal is competent as the order passed by the Tribunal was a discretionary order. It is true that normally the discretionary orders cannot be interfered with in the appeal. But when the discretion has been exercised without the principles for exercise of discretion being kept in mind the discretion is vitiated and like the present case raises a substantial question of law.
(24) I, would, accordingly accept this appeal, set aside the order dated 22nd July, 1977 passed by the learned Rent Control Tribunal and restore the order dated 10th February, 1977 passed by the learned Additional Rent Controller, Delhi.
(25) However, on the facts of the present case the parties are left to bear their own costs, throughout.