dissenting:
The plurality opinion misstates the central issue in this case as being whether the court is empowered to strike a tenant’s pleadings and enter a judgment of possession in favor of a landlord, when the tenant has failed to comply with a protective order requiring monthly payments to the court as security for the landlord pendente lite. The first three quarters of the plurality opinion is thus devoted to knocking down the straw man that the sanction of striking pleadings is never authorized when a tenant fails to comply with a protective order. Having posed itself an easy question, the plurality arrives at a facile answer.
However, this is done at the price of disregarding the crucial circumstance of this case: that the tenant proffered full payment of the amount due under the protective order before trial, thereby affording the landlord exactly the same degree of security he would have had if the payments had been made on time. The reader is not even apprised of this fact until near the end of the plurality opinion. Even at that late point, the fact is merely reported, never to be mentioned again. The proffer of full payment is studiously excluded from the factors the plurality deems pertinent to the choice of an appropriate sanction.
In fact, application of the extreme sanction of eviction is not only at odds with the redemption doctrine, but is unnecessarily and unjustly harsh as well.
When a landlord brings a successful suit for eviction on the ground of nonpayment of rent, the tenant retains a right of redemption. Even after the tenant’s constitutional right to air his defenses before a jury1 has been respected, and the court has entered a final order on the merits, he may regain his right to occupancy by proffer of the arrearages at any time before execution. Trans-Lux Radio City Corp. v. Service Parking Corp., D.C.Mun.App., 54 A.2d 144 (1947). This principle is both “well-established” and “entitled to liberal application” in this jurisdiction. Smith v. Warren Petroleum Corp., D.C.Mun.App., 126 A.2d 152, 153 (1956). Yet today the court holds that a tenant may be deprived of his right of occupancy without an opportunity to show that he is entitled to remain on the premises, because of failure to make pen-dente lite security payments on time, even when he offers to cure the defect before any significant harm is done. In light of the fact that the landlord suffers no prejudice if the tenant cures his error, and with due regard to the paramount interest in providing a hearing on the merits, such an anomalous and extreme result cannot be countenanced.
Although it has not always succeeded, our system of justice aspires to afford an opportunity for any citizen to seek judicial vindication when he believes his legal rights are being invaded. At least until recently, the dominant trend has been a gradual broadening of access to the judicial system. Among others, impecunious citizens proceeding in forma pauperis — such as appellant — have benefited from the opening of the courthouse doors. At present, in only one of the myriad types of lawsuits is a party in the District of Columbia routinely required to make advance payments as a *835precondition to exercising his right to a hearing: that in which a tenant pleads that he is justified in withholding rent.
The purpose of imposing protective orders is to provide some security to the landlord in the event that he ultimately prevails on the merits. It is not to help landlords avoid a trial on the merits by posing a preliminary obstacle that some tenants will fail to meet, sometimes through no fault of their own. But in imposing a sanction for a tardy proffer of payment under a protective order, it is crucial that the court give the public’s — not to mention the tenant’s— interest in an opportunity for just resolution of the underlying dispute the substantial weight it deserves. This the plurality fails to do.
If possible, the court should choose a sanction that will not permit the landlord to achieve his objective of eviction, without consideration of its merits, while satisfying his interest in security. In the instant case, there is not the slightest prejudice to the landlord’s interest in security. The offer of payment by the tenant before trial puts the landlord in precisely the same position he would have occupied if the installments had been paid on time. This case closely parallels Trans-Lux, a case which the plurality strains to avoid. In the Trans-Lux situation the landlord’s interest in the payment of rent is satisfied when the tenant proffers arrearages and redeems his right to occupancy. In the present case, the relevant interest is not the right to rental payments — that will not be established, if at all, until a trial on the merits — but the right to security for the amount of rent accrued pendente lite. Since the landlord does not have a right to these funds unless and until he succeeds on the merits, this interest is completely satisfied whenever payment is made before trial. .
Moreover, the tenant’s countervailing interest is far stronger in the present case than in the situation where the right of redemption was upheld. In Trans-Lux, the tenant had already been adjudicated to be delinquent in his payments, without adequate defense. The liability for rent was thus fixed; the tenant’s only interest was-in retaining occupancy of the premises. In the instant case there is a possibility that the tenant is entitled to a partial or complete abatement of rent, as well as a right to continued occupancy. But much more fundamentally, the right to an opportunity to be heard is at stake. We need not reach the question of whether under the circumstances of this case striking the pleadings resulted in a denial of due process. It suffices to recognize that when a tenant proffers full payment of the amount covered by a protective order before trial, it constitutes an abuse of discretion to deny him a hearing on the merits.
The landlord contends that if cases are allowed to go to trial when tenants make late payments, there will be no incentive for tenants to comply with protective orders in a timely manner. Maintaining respect for the orders of the court is indeed a legitimate concern. But unjustified delinquency can be punished without permitting a landlord to evict without a hearing on the justification for ejectment. An appropriate fine for contempt may be levied, with due consideration given to mitigating circumstance that may have interfered with timely compliance. D.C.Code 1981, § 11-944. See Bolden v. Bolden, D.C.App., 376 A.2d 430 (1977). Costs incurred in seeking compliance could be awarded. See Super.Ct. L & T R. 15. The plurality, however, quickly dismisses the possibility of alternative sanctions in a footnote.2 Indeed, not content to hold that striking pleadings was permissible in this case, the opinion goes on to express an alarming preference for summary disposition of such cases.3
*836The fact that there are superior alternatives in the present case does not imply that there are no circumstances under which a default judgment could be ordered for failure to comply with a protective order. If the tenant fails to proffer payment at the enforcement hearing, and does not show cause why immediate payment should be excused, entry of judgment is justified. It is also conceivable that, under extreme circumstances indicating contempt for the process of the court, a default might be entered even when the tenant makes a proffer of payment.
This court has said that the usual right of redemption is not available where the tenant’s default is “wilful, deliberate or intentional.” Molyneaux v. Town House, Inc., D.C.App., 195 A.2d 744, 747 (1963), citing Smith v. Warren Petroleum Corp., supra at 153; Trans-Lux Radio City Corp., supra. The same exception should be applied in the case of late payments under a protective order. But of course not every failure to pay on time constitutes “deliberate” default, or the exception would swallow the rule. In Molyneaux, for example, the grant of a stay of execution for possession was upheld although there were substantial ar-rearages and the landlords had made repeated demands. The necessary level of wilfulness might be established if the tenant offers no reason for his tardiness in making payments under a lease or protective order, or when the explanation offered is shown by the landlord to be false. Such was the situation in Smith v. Warren Petroleum Corp., supra, where the refusal to accept tender of past due utility payments was upheld.4
Suffice it to say that no such circumstances have been shown in the instant case. At the time of the hearing, only three installments remained unmet and the tenant offered to satisfy them on the spot. She testified that the failure to pay on time was due to large and unforeseen medical bills incurred because of an injury caused by the landlord’s failure to maintain the premises in a tenantable condition. The landlord failed to show otherwise. While it may be regrettable that the tenant did not consult earlier with her appointed attorney and move to extend the time for payment, this is hardly a ground for the most extreme sanction that can be imposed on a litigant — -a default judgment.
In the next to last section of its opinion, the plurality attempts to' mitigate the harshness of the result by indicating that a separate action for refund of rent could be brought, though not on the Landlord & Tenant Division’s usual expedited basis. However, the objects of the tenant’s claims and defenses, in addition to obtaining recompense for any housing violations, are to have them corrected and to remain in her apartment. The possibility of a separate suit for damages therefore does not negate the injustice of summary entry of judgment on the issue of possession. Moreover, given the availability of such an action, it is evident that the court’s principal holding entails a waste of judicial resources.
The significance of today’s decision has little to do with the reasons offered in support of it. The landlord’s security is not affected by it, since the tenant has offered *837to satisfy the protective order before trial. The judiciary’s institutional interest in respect for court orders is not advanced significantly, since adequate yet non-draconian alternative sanctions are available in the event of egregious behavior. Of course, the court’s decision will have important consequences for some tenants. It falls most harshly on those of the most modest means, who will have the greatest difficulty keeping up with payments due under a protective order. But the poor tenant whose claim or defense is unmeritorious will not be worse off in the end, since he would in any event lose the amount covered by the order as well as the right of occupancy. The principal effect is thus to permit unfair enrichment of a landlord at the expense of an indigent tenant with a meritorious defense, by denying him the opportunity to show the justness of his cause.
I cannot join in bringing about such a deplorable result.5
KELLY, Associate Judge, with whom MACK, Associate Judge, joins, dissenting:
For the reasons stated in Davis v. Rental Associates, D.C.App., 431 A.2d 23 (1981), I would reverse the judgment on appeal on the ground that it was an abuse of discretion not to vacate the judgment of default and proceed to a hearing on the merits.
. Pemell v. Southall Realty, 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974).
. Plurality opinion, note 9, supra.
. “We conclude that the striking of the tenant’s pleadings and the entry of judgment for the landlord is an appropriate sanction for a trial court' to impose in the exercise of its equity power .... ” Plurality opinion at 827, supra.
. Although that principle [the right of redemption] is well established in this jurisdiction and is entitled to liberal application, it does not mean that a tenant may intentionally and deliberately ignore his obligation to pay until brought into court, and then demand that he be allowed to escape the consequences of his acts by a belated payment of that which should have been paid in accordance with the terms of his lease. Relief from forfeiture of a lease rests upon equitable grounds, and refusal to grant equitable relief to a tenant who has deliberately breached a covenant of his lease is within the sound discretion of the trial court. We see no abuse of discretion in this case.
The tenant admitted his obligation to pay the utility bills, admitted regularly receiving them, admitted he had in no way questioned the correctness of them, admitted he had paid no part of them, and offered no excuse for his failure to pay. The trial court found no basis for granting equitable relief and neither do we. [Id. at 153.]
This situation is quite different from that which the trial court faced in the instant case, as the next paragraph in the text indicates.
. I share the views expressed by Judge Ferren in Part II of his separate opinion.