Supreme Court Sets Aside Tenant's Defence Strike-Off, Remands for Fresh Order XV Rule 5 CPC Inquiry

A Supreme Court bench of Justices S.V.N. Bhatti and Prasanna B. Varale remands a Kanpur eviction suit, holding that striking off a tenant's defence demands proper determination of the first date of hearing.

The Supreme Court has set aside two orders of the Allahabad High Court in a landlord-tenant eviction dispute arising from Kanpur Nagar and remanded the matter to the Trial Court for a fresh examination of whether the tenant's defence ought to be struck off under Order XV Rule 5 of the Code of Civil Procedure, 1908. The bench of Justice S.V.N. Bhatti and Justice Prasanna B. 

Varale, deciding Civil Appeal arising from Special Leave Petition (C) No. 7116 of 2025, found that neither the Trial Court nor the High Court had comprehensively addressed the foundational question of what constitutes the “first date of hearing” for the purposes of Order XV Rule 5 CPC, nor had either court properly assessed whether any default by the tenant was wilful or bona fide. The judgment, dated 15 May 2026, directs the Trial Court to dispose of the matter preferably within six months.

The Dispute and Its Path to the Supreme Court

The suit premises, bearing no. 118/1-A Kaushalpuri, Kanpur Nagar, were purchased by the fathers of the appellants — Sh. Uttam Chand Kalra and Sh. Sain Das Kalra through a registered sale deed. The respondent, Kulvinder Singh Bhatia, occupied two halls on the ground floor, ad measuring 27' 3'' x 13 and 20'' x 17'6'', as a tenant running a hotel named ‘Gyan Vaisnav Hotel’. The tenancy corresponded to the English calendar month.

After both original owners passed away, Sh. Uttam Chand Kalra on 29 September 2002 and Sh. Sain Das Kalra on 14 September 2014, the appellants became owners of the suit premises. In September 2020, the monthly rent was revised to Rs. 25,000. The respondent paid rent for September and October 2020 but stopped thereafter.

Rent arrears accumulated from November 2020 to June 2021, totalling Rs. 2,00,000. The appellants issued a legal notice dated 12 July 2021 terminating the tenancy and calling upon the respondent to clear arrears under Section 106 of the Transfer of Property Act. When no payment followed, the appellants filed Civil S.C.C. Suit No. 52 of 2021 before the Additional District Judge, Kanpur Nagar, under Section 15 of the Provincial Small Causes Court Act read with Section 106 of the Transfer of Property Act, seeking eviction, recovery of arrears of Rs. 2,37,000, and damages at Rs. 2,000 per month from 16 August 2021 until actual eviction.

The respondent initially avoided proceedings. The Trial Court ordered ex parte proceedings on 8 March 2022. The respondent then appeared, moved an application under Order IX Rule 7 CPC, and the ex parte order was recalled on 10 November 2022, subject to a cost of Rs. 1,000. The respondent also filed an application under Order VII Rule 11 CPC seeking rejection of the plaint on the ground that the suit was barred by the Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021 (U.P. Act 16 of 2021). That application was rejected on 21 July 2023.

The appellants then moved an application under Order XV Rule 5 CPC to strike off the respondent's defence for failure to deposit the entire arrears of rent, damages, and costs on or before the first date of hearing. The respondent filed a belated application on 2 August 2023 seeking condonation of delay and permission to deposit rent and interest from 1 April 2021 to 30 August 2021. The Trial Court, by order dated 5 August 2023, allowed the appellants' application and struck off the respondent's defence, recording that the respondent had accepted the appellants as co-owners and landlords but had not deposited even the Rs. 1,500 he himself admitted to be due, nor had he filed any representation within the time prescribed under sub-rule (2) of Order XV Rule 5 CPC.

The respondent challenged this before the Allahabad High Court. By order dated 10 December 2024 in S.C.C. Revision No. 114 of 2023, the High Court allowed the revision petition and directed the respondent to deposit monthly rent of Rs. 1,500 on or before 31 December 2024, with a clear condition that failure to deposit would result in the defence being struck off and no liberty would be granted to seek extension. The respondent failed to comply. He then filed C.M.A. No. 6 of 2025 before the High Court seeking extension of time, attributing the default to his local counsel having gone abroad. The High Court, by order dated 7 February 2025, granted the extension. The appellants approached the Supreme Court against both orders.

The Competing Arguments

The appellants' counsel argued that the High Court committed a manifest error by interfering with the Trial Court's well-reasoned order. The landlord-tenant relationship, counsel submitted, was never genuinely in dispute the respondent had admitted it in the written statement and before the High Court. The High Court's order of 10 December 2024 had expressly prohibited any further extension of time, yet the subsequent order of 7 February 2025 granted exactly that, which counsel characterised as impermissible. The respondent's conduct throughout avoiding service, defaulting on rent, and filing a belated application was described as contumacious and an abuse of process.

The respondent's counsel countered that the petition raised no substantial question of law under Article 136 of the Constitution and was directed primarily against the extension order of 7 February 2025, which had not been specifically impugned. Counsel contended that the order of 10 December 2024 was a consent order, recorded with the appellants' “no objection”, and that the appellants were therefore estopped from challenging it. The delay in deposit was said to be only seven days and caused by a bona fide reason. Counsel also argued that subsequent compliance with the High Court's conditions had rendered the petition infructuous, and that the underlying suit was in any event not maintainable given the U.P. Act 16 of 2021. It was further submitted that the Trial Court had erred in invoking Order XV Rule 5 CPC without first determining the first date of hearing or ensuring proper service.

The Court's Reading of Order XV Rule 5 CPC

The Court identified the controversy as lying in a narrow compass: the applicability and manner of exercise of jurisdiction under Order XV Rule 5 CPC and the propriety of the High Court's orders on the facts.

The bench acknowledged that Order XV Rule 5 CPC is intended to ensure that a tenant does not remain in possession without complying with the statutory obligation to deposit admitted rent and damages during the pendency of the suit. At the same time, it held that the consequence of striking off the defence is a drastic one and that the provision, though mandatory in form, has been interpreted to confer a degree of judicial discretion.

The Court drew on Bimal Chand Jain v. Sri Gopal Agarwal, (1981) 3 SCC 486, where it had been held that the word “may” in sub-rule (1) vests power in the court to strike off the defence but does not oblige it to do so in every case of default. The power is not to be exercised mechanically. The court must consider whether there has been substantial compliance and whether the default is wilful or contumacious.

The bench also cited Santosh Mehta v. Om Prakash, (1980) 3 SCC 610, for the proposition that striking off a defence is an exceptional step, not a routine punitive consequence following upon a mere failure to pay rent. The power is meant for grossly recalcitrant situations where a tenant is guilty of deliberate disregard. A judicial discretion, the Court noted, has built-in self-restraint and cannot ignore the conspectus of circumstances present in a case.

On the question of the “first date of hearing”, the Court referred to Siraj Ahmad Siddiqui v. Prem Nath Kapoor, (1993) 4 SCC 406, which held that the first date of hearing is the date on which the court proposes to apply its mind to determine the points in controversy between the parties and to frame issues, if necessary. It is not any earlier date fixed for procedural purposes. The Court held that in the absence of a clear determination of this date, the very foundation for invoking Order XV Rule 5 CPC becomes uncertain.

Why the High Court's Extension Was Not Simply Impermissible

The appellants pressed hard on the argument that the High Court's order of 10 December 2024 had categorically prohibited any extension of time, and that the subsequent order of 7 February 2025 granting extension was therefore impermissible in law. The Court did not accept this framing without qualification.

The bench invoked Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344, for the principle that procedural law is the handmaid of justice and is meant to advance its cause, not to thwart it. The construction of a rule of procedure which promotes justice and prevents miscarriage is to be preferred.

At the same time, the Court did not entirely excuse the respondent's conduct. It observed that despite opportunities being given and an assurance that the amount would be deposited, the respondent failed to comply within the prescribed timeline and then filed a fresh application for extension. The record reflected certain lapses. However, the explanation offered indicated that the delay was neither gross nor wholly unexplained.

The Court's conclusion was that both the Trial Court and the High Court had failed to comprehensively address all relevant aspects. The Trial Court had proceeded in a somewhat mechanical manner in invoking the penal consequence of striking off the defence. The High Court, while granting extension, had not sufficiently reconciled its earlier conditional order with the subsequent indulgence granted.

Order

The Supreme Court set aside the impugned orders of the Allahabad High Court dated 10 December 2024 and 7 February 2025 and remanded the matter to the Trial Court for fresh adjudication. The Trial Court is directed to:

1. Determine, in accordance with law, the “first date of hearing” of the suit.
2. Examine whether there has been due compliance or substantial compliance with the requirements of Order XV Rule 5 CPC.
3. Consider whether the default, if any, is wilful or bona fide.
4. Pass a reasoned order after affording adequate opportunity to both parties.

The Court expressly stated that it had not expressed any opinion on the merits of the rival contentions and that all issues are left open to be decided by the Trial Court in accordance with law. The Trial Court was requested to dispose of the matter expeditiously, preferably within six months from the date of receipt of the order. The appeal was disposed of accordingly.