- In the recent case, RASHI MISRA v. B KALYANA RAMAN, the Hon’ble Delhi HC observed that an order for striking off the petitioners’ defense under Order XVA (1) is statutorily subject to Order XVA(2) that is read in conjunction, mere default in payment of rent as directed by the Court under Order XVA(1) cannot, ipso facto, justify the passing of an order striking off the defense of the defaulting tenant.
- In the instant case, the present petitioner assailed the judgment passed by the learned Additional District Judge (ADJ) before the Hon’ble Delhi HC.
- In the lis filed by the respondent against the petitioner and had sought 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. The petitioner had failed to vacate the premises despite the expiry of the tenancy despite extension and hence, the respondent filed a civil suit against the petitioner and sought 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 and submitted 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 learned ADJ 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 had sought to place on record could not be taken into account while adjudicating an application under Order VII, Rule 11 as settled inter alia by Saleem Bhai v. the State of Maharashtra (2002) and Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2019).
- Thus, the Court upheld the order passed by learned ADJ and rejected the petitioners’ application under Order VII Rule 11 of the CPC and Section 340, Cr PC.
- The Court mentioned in Madho Singh Chauhan v. Smriti(2010) that the Court is statutorily bound, under Order XVA (2) to, prior to the passing of an order striking off the defense, serve a notice on the defaulting tenant, to show cause as to why the defendant should not be struck off and, to consider the cause if any, shown by the tenant in that regard.
- The Court took the view from Taylor v. Taylor (1875), Nazir Ahmed v. King-Emperor (1936), and State of UP v. Singhara Singh (1964), that where the law requires an act to be done in a particular manner, it has to be done in that manner, or not done at all.
- The Court held that for non-compliance with the provisions of Order XVA(2), the impugned order, striking off the petitioners’ defense cannot be sustained as it has been taken without the discipline envisaged in Order XVA (2) and accordingly quashed and set aside.
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