Devinder Gupta ( 1 ) THIS second appeal filed under Section 39 of the Delhi Rent Control Act (hereinafter referred to as the Act ) is against an order passed on 10. 9. 1991 by Shri O. P. Dwivedi, Rent Control Tribunal, Delhi dismissing appellant s appeal and thereby confirming an order passed on 1. 4 1991 by Shri M. K. Gupta, Additional Rent Controller, Delhi ordering the appellant s eviction from the premises. ( 2 ) THE tenant s eviction was sought by the respondent landlord under Section 14 (1) (a) of the Act on the ground that he was a regular defaulter in the payment of rent since 1. 3. 1985. It was also claimed that the monthly rent payable by the tenant, excluding of other charges, was Rs. 150. 00. He had neither tendered, nor paid rent despite requests and a legal notice. This petition was preferred on 29. 3. 1988. ( 3 ) TENANT disputed the landlord s version and claimed that the agreed rate of rent was Rs. 25. 00 p. m. and in addition thereto Rs. 5. 00 were being paid towards electricity charges for one bulb. On the ground of non-payment it was contended that the landlord wanted him to pay enhanced rent. On his refusal the landlord and his wife prevented the tenant from using the latrine, which he had been using for the last 25 years. He was also stopped from drawing water. The electricity supply was also disconnected. A suit for injunction was filed by him against the landlord in which the landlord made a statement but despite making statement the landlord and his wife had been creating troubles. He denied that he had not paid rent or that the rent was Rs. 150. 00 p. m. Rent, according to him, had been paid till 30. 9. 1987. Rent for the month of October, 1987 was sent by Money Order which was refused. ( 4 ) ON 22. 2. 1990, after hearing counsel for the parties an order was made by the Controller directing the tenant to payr deposit the arrears of rent at the rate of Rs. 30. 00 p. m. w. e. f. 1. 10. 1987 upto the end of previous month. The deposit was to be made within one month from the date of the order. 1990, after hearing counsel for the parties an order was made by the Controller directing the tenant to payr deposit the arrears of rent at the rate of Rs. 30. 00 p. m. w. e. f. 1. 10. 1987 upto the end of previous month. The deposit was to be made within one month from the date of the order. The tenant was also directed to continue to pay or deposit future rent month by month by 15th day of each succeeding month at the same rate. It is not disputed that this order was not complied with and an application under Section 15 (7) of the Act was moved by the landlord seeking the striking off the tenant s defence. On 8. 2. 1991 arguments on this application were heard and the tenant s defence was struck off. On 22. 2. 1991 statements of two witnesses on behalf of the landlord were recorded. Arguments were thereafter heard and on 1. 4. 1991 an order of eviction was passed under Section 14 (1) (a) of the Act holding that the tenant was liable to be evicted from the premises. This order was challenged by the appellant by filing an appeal before the Tribunal, which was also dismissed. Now the tenant has come up in second appeal. ( 5 ) THE main grievance made on behalf of the tenant appellant is regarding the legality and validity of the order passed on 8. 2. 1991, striking out his defence and as a necessary corollary the order of eviction. It is contended that valid reasons had been assigned by the tenant due to which the order passed on 22. 2. 1990 could not be complied with. The grounds as stated by tenant in his reply to application under Section 15 (7) of the Act were not at all challenged by the respondent landlord. There was no wilful default on the part of the tenant not to comply with the order dated 22. 2. 1990 and, thus, the order passed on 8. 2. 1991 deserves to be quashed by accepting this appeal. There was no wilful default on the part of the tenant not to comply with the order dated 22. 2. 1990 and, thus, the order passed on 8. 2. 1991 deserves to be quashed by accepting this appeal. ( 6 ) LEARNED counsel for the respondent after taking me through the entire record has contended that the Controller as well as Tribunal were right in coming to the conclusion that there was deliberate and wilful default on the part of the tenant not to comply with the order passed on 22. 2. 1990, which findings are not liable to be reversed in this second appeal. ( 7 ) ON 9. 7. 1990 an application under Section 15 (7) of the Act was moved by the landlord stating therein that on 22. 2. 1990 an order had been made under Section 15 (1) of the Act directing the tenant to deposit arrears of rent at the rate of Rs. 30. 00 p. m. w. e. f. 1. 10. 1987, which the tenant had failed to comply with. Thus, his defence was liable to be struck off. On 9. 7. 1990, it appears that there was lawyers strike. Landlord appeared in person and a proxy counsel appeared for the counsel for the tenant. Case was adjourned to 27. 9. 1990 forfiling reply. On 27. 9. 1990 none appeared for the tenant, who was proceeded against ex parte and the case was posted for the landlord s evidence for 23. 11. 1990. On the adjourned date the Presiding Officer was on leave. Case was adjourned to 4. 1. 1991 for recording ex parte evidence of the landlord. On 4. 1. 1991 tenant along with counsel appeared. A request was made for filing reply to application filed under Section 15 (7) of the Act, which though opposed was allowed subject to payment of Rs. 60. 00 as costs. Case was adjourned to 27. 1. 1991. It also appears that 27 1. 1991 was declared as a holiday. Case appears to have been taken up on 4. 2. 1991 (wrongly shown as 4. 1. 1991 ). Reply to application under Section 15 (7) was filed and the case was adjourned to 8. 2. 1991 on which date counsel for the tenant produced a copy of challan in support of his version that rent had since been deposited. Case appears to have been taken up on 4. 2. 1991 (wrongly shown as 4. 1. 1991 ). Reply to application under Section 15 (7) was filed and the case was adjourned to 8. 2. 1991 on which date counsel for the tenant produced a copy of challan in support of his version that rent had since been deposited. ( 8 ) IN the reply filed to the application under Section 15 (7) of the Act, the tenant asserted that he had no knowledge of the passed of an order under Section 15 (1) of the Act. The moment he came to know of the gist of the order, he immediately deposited the entire amount of arrears of rent till 31. 1. 1990. Thus, according to him, there was no intentional default or negligence on his part. According to him on 22. 2. 1990 arguments were heard on the question of passing an order under Section 15 (1) of the Act, whereafter the file was kept by the Presiding Officer for consideration. He was not aware of further proceedings in the case. These averments made by the tenant were duly supported on his own affidavit, in which are stated that he was quite old aged, about 80 years, and was also hard of hearing and it was only on the last date of hearing (4. 1. 1991) that he came to know of the order and, thus, had complied with the same by depositing the amount of arrears of rent. ( 9 ) THE Controller in his order passed on 8. 2. 1991 noticed this defence, taken by the tenant, but did not make any comment as to whether the version of tenant, as stated in his reply, which had otherwise remained unrebutted was or was not correct. The Controller proceeded to reject the tenant s version and also observed that no application had been made by the tenant for condoning the delay in making the deposit. Nowhere in the order the Controller held that the non-compliance by the tenant of the order passed on 22. 2. 1990 was wilful or deliberate. It was also not held by the Controller that his defence wasnot bonafide. Nowhere in the order the Controller held that the non-compliance by the tenant of the order passed on 22. 2. 1990 was wilful or deliberate. It was also not held by the Controller that his defence wasnot bonafide. It was the Tribunal, which in its impugned order proceeded to record a finding that there was wilful default on the part of the tenant in not complying with the order passed under Section 15 (1) of the Act. ( 10 ) THE Tribunal in its order observed that after the order had been made on 22. 2. 1990, despite the fact that the copy of application under Section 15 (7) of the Act had been supplied to the tenant, the order under Section 15 (1) of the Act was not complied with and there was no plausible explanation forthcoming in not complying with the order. Thus, there being delay of more than six months,which had remained unexplained, therefore, under the circumstances the Controller had rightly concluded that the default was wilful. It was on this basis that the tenant s appeal was dismissed. These observations made by the Tribunal in para 3 of its order to the effect that the Additional Rent Controller had in his order concluded that the default was wilful are contrary to the record, since Additional Rent Controller had nowhere in his order recorded a finding that the default was wilful. The order of Tribunal on this score alone is liable to be set aside. However, on merits also I find that the order requires interference. ( 11 ) THE tenant s version has been, as noticed above, that arguments were heard on 22. 2. 1990 on the question of passing an order under Section 15 (1) of the Act. The case was, therefore, kept for consideration and it was only on the last date of hearing (4. 1. 1991) that he actually came to know of the gist of the order or of the fact that an order was passed under Section 15 (1) on 22. 2. 1990. On coming to know of this fact, he duly complied with the order by making deposit on 23. 1. 1991. His version from close scrutiny of the record not only appears to be plausible but correct also. The order passed on 22. 2. 1990 is in two parts. 2. 1990. On coming to know of this fact, he duly complied with the order by making deposit on 23. 1. 1991. His version from close scrutiny of the record not only appears to be plausible but correct also. The order passed on 22. 2. 1990 is in two parts. The first part reads: "present: Parties in person with csls and they filed certain documents as per list attached. Argts. for passing order u/s 15 (1) DRC Act heard. To come up for order AL. sd/-"the other part of the order, which is recorded below, the above order in same hand and ink and appears to be in the hand of the Presiding Officer, reads: "case file put up again. Order u/s 15 (1) DRC Act announced vide my separate order. Adj. for PE for 09/7/90. sd/-"reading of the aforementioned order would show that after the parties had put in appearance and made their submissions, the court kept the file for consideration as to what order should be passed under Section 15 (1) of the Act. When for the second time the file was taken up on 22. 2. 1990, neither the presence on behalf of the landlord nor on behalf of the of tenant is recorded. The order, which was announced, is on a separate sheet which has been typed out. In the said order also it is stated announced in open court . In that order also neither presence of the parties, nor their counsel is recorded. Thus, it is not clear as to whether tenant or his counsel was or was not present at the time when the order was announced. Tenant on his affidavit has stated that no order was announced in his presence. Even, on the next date, namely, 9th July, 1990, neither the tenant nor his counsel was present. Tenant or his counsel was also not present in court on the next dates, 22nd September and 23rd November, 1990. It was on 4. 1. 1991 that the tenant along with his counsel appeared, when time to file reply to application under Section 15 (7) was allowed, subject to costs. Thus, the tenant can be said to have acquired effective knowledge of the order only on 4. 1. 1991. Thus, the tenant s version is perfectly in consonance with the court s record. 1. 1991 that the tenant along with his counsel appeared, when time to file reply to application under Section 15 (7) was allowed, subject to costs. Thus, the tenant can be said to have acquired effective knowledge of the order only on 4. 1. 1991. Thus, the tenant s version is perfectly in consonance with the court s record. No doubt that there is a presumption that the order was announced in open court, but in the facts, its effect as to non-compliance whether wilful or otherwise is dependent upon the other circumstances. The version of tenant that he could not deposit rent had in the facts liable to be accepted. Otherwise also there is no indication whatsoever in the Act to show that the exercise of power of striking out of defence under Section 15 (7) is imperative whenever a tenant fails to deposit or pay the amount, as required under Section 15 (1) of the Act. Striking out a party s defence is an exceptional order which must be passed only on recording of a positive finding on evidence that the tenant had failed or refused to pay the rent negligently. The ratio of the decision in Miss Santosh Mehta v. Om Prakash (1980 1 RC 697 SC) fully applies to the facts of the case that there was no intentional or deliberate non-compliance by the tenant. ( 12 ) IN view of the above, the appeal is allowed with costs and the impugned orders are quashed and set aside, including the order passed on 8. 2. 1990. Parties are directed to appear before the concerned Additional Rent Controller on 8th February, 1995. The Additional Rent Controller will proceed now to dispose of the eviction petition in accordance with law considering that the tenant has right to contest the proceedings and his defence has not been struck off.