The Delhi High Court has observed that mere default in payment of rent as directed by the Court under Order XVA(1) of Code of Civil Procedure cannot, ipso facto, justify passing of an order striking off the defence of the defaulting tenant.
Justice C Hari Shankar was dealing with a plea challenging an order dated 07th December, 2019, passed in a civil suit by the Trial Court in which the petitioner was the defendant and the respondent was the plaintiff.
The impugned order adjudicated three applications preferred by the petitioner as the defendant under Order VII Rule 11 and sec. 151 of the Code of Civil Procedure and under sec. 340 of the Code of Criminal Procedure. Additionally, the impugned order struck off the defence of the petitioner, purportedly in exercise of jurisdiction under the proviso to Order XV-A(1) of the CPC.
The petitioner was before the High Court assailing all four decisions as contained in the impugned order.
The suit was filed by the respondent against the petitioner, seeking eviction of the petitioner from the premises of the respondent. The respondent's case in the suit was that the petitioner was the respondent's tenant vide lease deed dated 22nd February, 2017, followed by a rent agreement for a further period executed on 04th January, 2018. On the petitioner failing to vacate the premises despite the expiry of tenancy as so extended, the respondent filed civil suit against the petitioner seeking possession, permanent injunction and damages.
In the application under Order VII Rule 11, CPC proceedings, the petitioner filed an application under Order VII, Rule 11, submitting that the respondent had concealed a lease deed dated 18th November, 2018, and that, if the lease deed were taken into account, the plaint would be liable to be dismissed.
The Trial Court had held that an application under Order VII Rule 11, could be decided only on the basis of the averments contained in the plaint, and averments contained in the written statement or documents that the defendant sought to place on record could not be taken into account while adjudicating an application under Order VII, Rule 11.
The High Court reiterated its findings in a recent decision in the case titled Madho Singh Chauhan v. Smriti wherein it was observed that an order for striking off of the petitioners' defence under Order XVA (1) is statutorily subject to Order XVA(2).
"Read in conjunction, mere default in payment of rent as directed by the Court under Order XVA(1) cannot, ipso facto, justify passing of an order striking off the defence of the defaulting tenant," the Court observed.
It further said that the Court is statutorily bound, under Order XVA (2) to, prior to passing of an order striking off the defence, serve a notice on the defaulting tenant, to show cause as to why the defence should not be struck off and, to consider the cause, if any, shown by the tenant in that regard.
"This is an exercise which, having been statutorily incorporated in public interest and in the interests of compliance with the principles of natural justice and fair play, has to be treated as mandatory and non-negotiable," the Court said.
The Court added that for non-compliance with the provisions of Order XVA(2), the impugned order which struck off the petitioners' defence could not be sustained having been taken without following the discipline envisaged in Order XVA (2). Accordingly, the impugned order was quashed by the Court.
In view of the above, the application of the respondent filed under Order XVA for striking of the petitioners' defence, was remanded to the Trial Court to further proceed with it in accordance with law.
"The petition stands accordingly partly allowed in the aforesaid terms with no orders as to costs," it said.
Case Title: RASHI MISRA v. B KALYANA RAMAN
Citation: 2022 LiveLaw (Del) 452