Case Name: DHARMENDRA KALRA & ORS. VERSUS KULVINDER SINGH BHATIA
Petition No.: SLP (C) No. 7116 of 2025
Neutral Citation: 2026 INSC 492
Date of Judgement: 15th May 2026
Coram: Honourable Mr Justice S.V.N. Bhatti and Honourable Mr Justice Prasanna B. Varale
Relevant Provisions: Order XV Rule 5 CPC; Order IX Rule 7 CPC; Order VII Rule 11 CPC; Section 106 of the Transfer of Property Act, 1882; Article 136 of the Constitution of India; Section 15 of the Provincial Small Causes Courts Act; Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021.
INTRODUCTION
The Hon’ble Supreme Court in this case examined the scope and manner of exercising powers under Order XV, Rule 5, of the Code of Civil Procedure, 1908, for striking off a tenant’s defence for failure to deposit rent during the pendency of eviction proceedings. The Court held that although the provision is couched in mandatory terms, the power to strike off a defence is discretionary and penal in nature and therefore cannot be exercised mechanically. The Court emphasised that before invoking such power, the trial court must determine the “first date of hearing”, examine whether there was proper service and opportunity to the tenant, and assess whether the default was wilful or bona fide.
FACTS
The fathers of the appellants had purchased property through a registered sale deed. The respondent occupied two halls in the premises as a tenant and operated a hotel. Over time, the rent was revised, and, according to the appellants, it was increased to Rs. 25,000 per month. This was accepted and paid for in September and October 2020. Thereafter, the respondent allegedly defaulted in payment of rent from November 2020 onwards.
The landlords issued a notice under Section 106 of the Transfer of Property Act terminating the tenancy and demanding arrears of rent. Subsequently, they instituted a Small Causes Court suit seeking eviction, recovery of arrears, and damages for loss.
During the proceedings, an ex parte order was initially issued against the tenant. However, upon an application under Order IX Rule 7 CPC, the ex parte order was recalled on payment of costs. Thereafter, the landlords moved an application under Order XV Rule 5 of the CPC seeking to strike off the defence on the ground that the tenant had failed to deposit the arrears of rent, damages, and costs before the first date of hearing, as mandated by the provision.
The tenant also filed an application under Order VII Rule 11 CPC, contending that the suit was barred by the Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021. The same was rejected. The tenant later filed objections and sought condonation of the delay in depositing rent and interest. Nevertheless, on 5 August 2023, the Trial Court allowed the landlords’ application and struck off the tenant’s defence under Order XV, Rule 5, CPC.
The respondent challenged the order before the Allahabad High Court. The High Court partly allowed the revision petition and directed the tenant to deposit rent at the rate of Rs. 1,500 per month before 31 December 2024, failing which the defence would stand struck off. Later, when the tenant failed to deposit the amount within the time and sought an extension on the ground that local counsel had gone abroad, the High Court granted an extension by order dated 7 February 2025. Aggrieved by these developments, the landlords approached the Supreme Court.
ISSUES
1. Whether the Trial Court was justified in striking off the tenant’s defence under Order XV Rule 5 CPC without determining the “first date of hearing” and without adequately examining the issue of proper service, opportunity, and the nature of default?
- Whether the High Court was justified in granting an extension of time to the tenant for the deposit of rent despite an earlier conditional order providing that failure to deposit within the stipulated time would result in striking off the defence?
- Whether the power under Order XV Rule 5 CPC is mandatory and automatic upon default, or whether it involves judicial discretion requiring examination of substantial compliance and wilful default?
ARGUMENTS OF THE PARTIES
The appellants-landlords argued that the High Court committed a manifest error in interfering with the Trial Court’s order. They contended that the respondent had unequivocally admitted to the landlord-tenant relationship and could therefore not escape the statutory obligation under Order XV, Rule 5, CPC. It was argued that the tenant had deliberately defaulted in depositing rent and had failed to comply with the mandatory requirement to deposit the entire arrears before the first date of hearing. The appellants further submitted that the High Court had expressly granted only a final opportunity to deposit rent and had specifically stated that no further extension would be granted. Despite this, the High Court subsequently extended time, which, according to the appellants, was legally impermissible. They also alleged that the respondent had adopted dilatory tactics throughout the proceedings and had wilfully avoided compliance.
On the other hand, the respondent-tenant contended that no substantial question of law arose, warranting interference under Article 136 of the Constitution. It was argued that the challenge was essentially directed against the High Court’s discretionary order extending time for the deposit. The respondent submitted that the delay in deposit was minimal and occurred due to bona fide reasons. It was argued that the Trial Court had acted mechanically in striking off the defence without determining the “first date of hearing” or ensuring proper service or an opportunity to file a written statement. They contended that the tenant had substantially complied with the requirement by depositing rent and interest, and therefore, the drastic consequence of striking off the defence was unwarranted.
JUDGEMENT AND ANALYSIS
The Supreme Court held that the Trial Court erred in striking off the tenant’s defence without conclusively determining foundational aspects such as the “first date of hearing”, proper service of summons, and adequate opportunity to the tenant. The Court observed that the “first date of hearing” is not merely a procedural date but the stage at which the Court applies its mind to the controversy, ordinarily during framing of issues or consideration of pleadings. In the absence of the determination of such a date, the very basis for invoking Order XV Rule 5 CPC becomes uncertain.
The Court relied extensively upon Bimal Chand Jain v. Sri Gopal Agarwal (1981) 3 SCC 486 and Siraj Ahmad Siddiqui v. Prem Nath Kapoor (1993) 4 SCC 406 to reiterate that the provision under Order XV Rule 5 CPC cannot be invoked mechanically and that the tenant possesses a statutory right to explain the default or demonstrate substantial compliance. The Court further emphasised that striking off the defence is a serious penal consequence and must not be treated as an automatic result of every default. The Trial Court failed to examine whether the default was wilful, deliberate, or bona fide. The Supreme Court therefore concluded that the Trial Court adopted a mechanical approach, contrary to settled principles governing Order XV, Rule 5, of the CPC.
On the second issue, the Supreme Court observed that while the High Court initially passed a conditional order directing the deposit of rent within a stipulated period, it subsequently granted an extension of time on the tenant’s explanation. The Court noted that procedural laws are intended to advance justice rather than defeat it and referred to Salem Advocate Bar Association v. Union of India (2005) 6 SCC 344 to reiterate that procedural rules are the “handmaid of justice”. The Court thus concluded that both the Trial Court and the High Court had failed to comprehensively address all relevant factors.
Regarding the third issue, the Supreme Court categorically held that the power under Order XV Rule 5 CPC is discretionary and not automatic. Though the provision is framed in mandatory language, the use of the word “may” vests discretion in the Court to decide whether striking off the defence is warranted in the facts of a particular case. The Court stressed that judicial discretion must be exercised after considering whether there has been substantial compliance, whether the default is wilful or contumacious, and whether there exists a bona fide explanation for the lapse.
Relying on Santosh Mehta v. Om Prakash (1980) 3 SCC 610, the Court held that striking off the defence is an exceptional measure meant only for grossly recalcitrant situations involving deliberate disregard or volitional non-performance. The court in Santosh Mehta said, “First of all, there must be a failure to pay rent which, in the context, indicates wilful failure, deliberate default or volitional nonperformance. Secondly, the section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. The Court observed that the “last resort cannot be converted into the first resort” and that courts must adopt a socially informed and justice-oriented interpretation while exercising such powers.
Accordingly, the Court held that before invoking Order XV Rule 5 CPC, courts must assess whether the tenant’s conduct reflects deliberate defiance or whether the lapse can be condoned on equitable and procedural considerations. Ultimately, the Supreme Court set aside the orders of both the Trial Court and the High Court and remanded the matter to the Trial Court with directions to determine the first date of hearing, examine compliance with Order XV Rule 5 CPC, assess whether the default was wilful or bona fide, and pass a reasoned order after giving adequate opportunity to both parties.
CONCLUSION
The matter was remanded to the Trial Court for fresh adjudication in accordance with law. The Supreme Court reaffirmed that the power to strike off a tenant’s defence under Order XV Rule 5 CPC is not an automatic or mechanical consequence of non-deposit of rent. Such power is penal and discretionary in nature and must be exercised only after careful examination of procedural requirements, such as determination of the first date of hearing, proper service of summons, substantial compliance, and the existence of wilful or contumacious default.
