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SUPREME COURT OF INDIA
DINESH MAHESHWARI, ANIRUDDHA BOSE, JJ.
Asha Rani Gupta - Appellant
Versus
Sri Vineet Kumar - Respondent
Civil Appeal No. 4682 of 2022 (Arising out of SLP(Civil) No. 1319 of 2019)
Decided On : 11-07-2022
(A) Civil Procedure Code, 1908 – Order XV Rule 5 – Eviction suit – Striking-off defence of tenant – Any such provision depriving tenant of defence because of default in payment of due amount of rent/arrears have been construed liberally and expression ‘may’ in regard to power of Court to strike out defence has been construed as directory and not mandatory – Power to strike off defence is considered to be discretionary which is to be exercised with circumspection but relaxation is reserved for a bonafide tenant and not as a matter of course – Question of good and adequate reason for not striking off defence despite default would directly relate with such facts, factors and circumstances where full and punctual compliance had not been made for any bonafide cause as contradistinguished from approach of defiance or volitional/elective non-performance. (Paras 11.1 and 11.2)
(B) Civil Procedure Code, 1908 – Order XV Rule 5 – Eviction suit – Reversal of order striking-off defence of tenant – There is no holidaying for a tenant in payment of rent or damages for use and occupation, whether lease is subsisting or it has been determined – Only basic requirement in suit of nature envisaged by Order XV Rule 5 CPC is character of defendant as being lessee/tenant in suit premises – In every case of denial of relationship of landlord and tenant, defendant in suit for eviction and recovery of rent/damages could not enjoy holidays as regards payment of rent – Defendant-respondent has not only omitted to deposit rent on first date of hearing but, has also omitted to deposit accrued rent during pendency of suit – Question of bonafide is a question of fact, to be determined in every case with reference to its facts but, it cannot be laid down as a general proposition that by merely denying title of plaintiff or relationship of landlord-tenant/ lessor-lessee, defendant of suit of present nature could enjoy property during pendency of suit without depositing amount of rent/damages – When a case of present nature is before Court, disclosing deliberate defiance and volitional/elective non-performance, consequence of law remains inevitable that defence of such a defendant would be struck off – Deposits belatedly made pursuant only to unsustainable order of High Court, do not enure to benefit of defendant-respondent – Impugned order passed by High Court set aside and order of Trial Court revived. (Paras 12, 14, 16, 17, 18 and 19)
Facts of the case:
Present appeal arises out of a suit for eviction and recovery of arrears of rent as also damages for use and occupation, as filed by plaintiff-appellant against the defendant-respondent. Root question calling for determination in this appeal is as to whether the High Court was right in reversing the order striking off defence in terms of Order XV Rule 5 of the Code of Civil Procedure, 1908, as applicable to the present case?
Findings of Court:
High Court observed with reference to decisions of this Court that discretionary power must be exercised with great circumspection but, such enunciation by this Court cannot be read to mean that whatever may be the fault and want of bonafide in defendant/tenant, he would be readily given the so-called ‘indulgence’ of not striking off defence. Such an approach is neither envisaged by statutory provisions nor by the referred decisions.
Result : Appeal allowed.
Certainly. Here are the key points derived from the provided legal document:
The power of a court to strike off a tenant’s defense in eviction suits is discretionary and must be exercised with caution. Such discretion is especially reserved for bona fide tenants and not applied automatically in every default scenario (!) (!) .
Default in payment or deposit of rent, especially when the defendant denies the landlord-tenant relationship, does not automatically justify striking off the defense. The court must consider whether the default was wilful, deliberate, or volitional, and whether there is a good and adequate reason for the non-compliance (!) (!) .
The requirement for a tenant to deposit the due rent and regularly pay monthly rent during the pendency of the suit is fundamental. Denial of the landlord-tenant relationship does not exempt the tenant from this obligation, and default can lead to the defense being struck off (!) (!) .
The discretion to strike off a defense is not mandatory and should be exercised with circumspection, considering the facts and circumstances of each case. The courts have recognized that such power is meant to prevent frivolous or dilatory defenses but should not be used in a manner that deprives a bona fide tenant of their right to defend (!) (!) .
Denying the relationship of landlord and tenant or disputing ownership alone does not absolve the tenant from their obligation to deposit rent if they are in fact the lessee. Such denial, especially when unsubstantiated, does not justify non-compliance with deposit requirements (!) (!) .
The courts have emphasized that the provisions allowing for striking off defenses are directory rather than mandatory, and the exercise of this discretion must be based on the presence of wilful default or defiance, not mere technicalities or disputes over ownership or title (!) (!) .
When a tenant defaults in payment, even if they dispute the landlord-tenant relationship, they are expected to deposit the rent if they wish to retain a defense. The courts have consistently held that default without lawful or bonafide reasons can lead to the defense being struck off (!) (!) .
The courts have clarified that belated deposits made under an order of the court do not negate the initial default and do not automatically restore the defense. The primary focus remains on whether the default was wilful or volitional (!) .
The courts have recognized that the exercise of discretion in such matters involves balancing the principles of justice and fairness, especially in cases where the defendant has acted in bad faith or with defiance (!) (!) .
Overall, the legal framework and judicial approach endorse a cautious and fact-sensitive exercise of discretion, prioritizing bona fide tenants and discouraging automatic penalties for defaults without considering the context and reasons behind such defaults (!) (!) .
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JUDGMENT :
Dinesh Maheshwari, J.
Leave granted.
2. The present appeal arises out of a suit for eviction and recovery of arrears of rent as also damages for use and occupation, as filed by the plaintiff-appellant against the defendant-respondent, 1[Hereinafter, the parties have also been referred to as ‘the plaintiff’ or as ‘the defendant’, as per their status in the suit.], wherein the order dated 01.03.2017, as passed by the Trial Court striking off the defence of the defendant-respondent for failure to pay or deposit the due rent, which was approved by the Revisional Court in its order dated 18.01.2018, has been set aside by the High Court in its impugned order dated 02.11.2018.
3. The root question calling for determination in this appeal is as to whether the High Court was right in reversing the order striking off defence in terms of Order XV Rule 5 of the Code of Civil Procedure, 1908,2[‘CPC’, for short.], as applicable to the present case,3[Rule 5 of Order XV was inserted to CPC for its application in the State of Uttar Pradesh by the Uttar Pradesh Laws (Amendment) Act, 1972; it was substituted by the Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976 w.e.f. 01.01.1977 and was slightly amended by Notification No. 121/IV-h-36-D dated 10.02.1981 w.e.f. 03.10.1981.]?
4. The relevant factual and background aspects, so far relevant for the present purpose, are as follows:
4.1. The plaintiff-appellant has filed the suit leading to this appeal, being S.C.C. Suit No. 27 of 2011, in the Court of Judge, Small Causes, Aligarh against the defendant-respondent on 30.04.2011 with the averments, inter alia, that she is the owner of a shop bearing Municipal Corporation No. 1/225, situated at Naurangabad Sahar, Kol, Aligarh, for having purchased the same from the erstwhile owner Shri Rajiv Kant Sharma through a registered sale deed dated 10.05.2010. The appellant has further averred that the defendant-respondent is a tenant in the suit shop since the time of its erstwhile owner on a monthly rent of Rs. 625/- apart from statutory taxes; that after her purchasing the shop, the defendant became her tenant; and that after registration of the sale deed, the erstwhile landlord had informed the defendant about sale of the shop to the plaintiff.
4.2. The plaintiff-appellant has alleged that the defendant-respondent was a chronic defaulter in payment of rent and taxes; and despite information of the sale deed dated 10.05.2010 and despite demand made by her, the rent along with taxes had not been paid by him since the month of May 2010. The plaintiff has averred that she got served a legal notice under Section 106 of the Transfer of Property Act, 1882 to the defendant on 08.02.2011, who refused to accept the notice and has neither paid the balance rent and damages nor vacated the suit shop. It has also been pointed out that the suit shop was a newly constructed one to which, the provisions of U.P. Act No. 13 of 1972 were not applicable. While asserting her right to receive the rent and damages in relation to the suit shop from the month of May 2010 and with other averments regarding cause of action, jurisdiction and court fee etc., the plaintiff has claimed the reliefs in the following terms :-
(a) the decree may kindly be passed in favour of the plaintiff and against the defendant for realizing amount of Rs. 8,050/-and damages for use and occupation @ Rs.625/- per month presently and in future besides the taxes.
(b) a decree of eviction in favour of plaintiff and against the defendant for the shop which is in the possession of defendant and after eviction of the defendant the possession of the shop may be given to the plaintiff through the Amin of the Court, may be passed.
(c) the expenses of the suit may be recovered from the defendant and be given to the plaintiff.
(d) any other relief which this Hon’ble Court may deem fit and proper in the circumstances of the case may be given to the
Eviction suit – Power to strike off defence is considered to be discretionary which is to be exercised with circumspection but relaxation is reserved for a bonafide tenant and not as a matter of cour....
(1) Striking off defence of tenant – Striking off defence is a serious matter and ought not to be resorted to unless there is a clear case of deliberate default or contumacious conduct on part of ten....
Striking out defence of defendant – Judicial discretion must not be exercised in favour of a party indulging in contumacious defiance.
Strict compliance with the deposit requirements under Order XV Rule 5 CPC is mandatory for tenants in eviction suits, and inconsistent conduct may not entitle them to relief.
Court can strike off defense for non-compliance with rent payment orders, emphasizing that defiance of court directives is unacceptable and justifies severe consequences.
The court held that excess rent payments negate claims of default, emphasizing judicial discretion in striking off defenses under Order XV Rule V of C.P.C.
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