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SUPREME COURT OF INDIA
S.V.N. BHATTI, PRASANNA B. VARALE, JJ.
Dharmendra Kalra & Ors. – Appellant
Versus
Kulvinder Singh Bhatia – Respondent
Civil Appeal No.(s) 7915 of 2026 (@ Special Leave Petition (C) No. 7116 of 2025)
Decided On : 15-05-2026
Civil Procedure Code, 1908 – Order XV Rule 5 – Striking off defence of tenant – Violation of mandatory provisions of Order XV Rule 5 of CPC – Power to strike off defence under Order XV Rule 5 CPC, though couched in mandatory terms, is not to be exercised mechanically – Court must consider whether there has been substantial compliance and whether default is wilful or contumacious – 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 tenant – In present case, Trial Court proceeded to allow application under Order XV Rule 5 CPC and struck off defence of respondent primarily on the ground of non-deposit of rent within stipulated time – However, certain foundational aspects, such as determination of “first date of hearing” and issue of proper service and opportunity, were neither conclusively determined nor adequately examined – “First date of hearing” is not a mere formal date but date on which Court applies its mind to the case, ordinarily at stage of framing of issues or consideration of pleadings – In absence of clear determination of such a date, very foundation for invoking Order XV Rule 5 CPC becomes uncertainty – Procedural law is handmaid of justice and is meant to advance its cause and not to thwart it – Ends of justice would be best served by remanding the matter to Trial Court for fresh consideration of application under Order XV Rule 5 CPC – Impugned orders set aside and matter remanded to Trial Court for fresh adjudication. (Paras 15, 16, 17, 18, 19, 20, 22, 25, 26 and 28)
Facts of the case:
The controversy lies in a narrow compass, namely, applicability and manner of exercise of jurisdiction under Order XV Rule 5 of Code of Civil Procedure, 1908, and propriety of orders passed by High Court in facts of present case.
Findings of Court:
Both Trial Court and High Court have not comprehensively addressed all relevant aspects in their proper perspective. Trial Court appears to have proceeded in a somewhat mechanical manner in invoking penal consequence of striking off defence, whereas High Court, while granting extension, did not sufficiently reconcile its earlier conditional order with subsequent indulgence granted.
Result : Appeal disposed of.
Key Points: - The Court remanded the matter to the Trial Court for fresh adjudication under Order XV Rule 5 CPC, after finding issues with determining the "first date of hearing" and proper service/opportunity (!) (!) (!) . - It held that the power to strike off the defence is not automatic; it requires considering substantial compliance and whether default is wilful/contumacious, emphasizing judicial discretion rather than mechanical application (!) (!) . - The decision notes that procedural law should advance justice, and an ends-justice remand can be appropriate when foundational procedural aspects are unclear or inadequately examined (!) (!) (!) . - The High Court’s extension of time under Order XV Rule 5 CPC (07.02.2025) was examined, with reasoning that extensions must align with earlier orders and that procedural flexibility should not defeat justice; the Court did not uphold the impugned extension as a final determination of merits but remanded for fresh consideration (!) (!) (!) . - The judgment outlines specific remand directives for the Trial Court: determine the first date of hearing, assess compliance with Order XV Rule 5 CPC, evaluate whether the default is wilful or bonafide, and issue a reasoned order after full opportunity (!) (!) (!) (!) . - The Court explicitly reserves its opinion on the merits and leaves all issues open to be decided by the Trial Court in accordance with law (!) . - The appeal is disposed of in terms of remand to the Trial Court with expeditious disposal guidance (six months) (!) (!) . - The background includes that the respondent tenant failed to deposit arrears from November 2020 to June 2021 and that there were ex-parte proceedings and recalls prior to the Order XV Rule 5 application (!) (!) .
JUDGMENT
PRASANNA B VARALE, J.
1. Leave granted.
2. The present special leave petition was filed under Article 136 of the Constitution of India against the impugned judgment and final orders dated 10.12.2024 passed by the Hon'ble High Court of Judicature at Allahabad in Case: S.C.C. Revision No.114 of 2023 and CMA No. 6 of 2025 in S.C.C. Revision No. 114 of 2023 whereby the Hon'ble High Court was pleased to allow the revision petition of the tenant against the judgment of the Ld. Trial court - striking off the defence of the tenant on the ground of violation of the mandatory provisions of Order XV Rule 5 Code of Civil Procedure (hereinafter referred to as ‘CPC’) and thereafter allowing the application seeking extension of time filed by the respondent herein.
BRIEF FACTS:
3. The fathers of the Appellants namely, Sh. Uttam Chand Kalra and Sh. Sain Das Kalra purchased suit premises no. 118/1-A Kaushalpuri, Kanpur Nagar from the erstwhile owner Shri Surendra Nigam son of Shri Laxmi Narayan Nigam, through a registered sale deed registered in the office of Sub-Registrar Kanpur Nagar. The respondents occupied two halls on the ground admeasuring 27’ 3’’ * 13 and 20” * 17’6” as a tenant at the aforesaid premises at an agreed rent which was revised from time to time and the tenancy corresponds to English Calendar Month. The defendant/respondent are running a Hotel named as ‘Gyan Vaisnav Hotel’ in the tenanted premises and the Appellants/landlords have to pay commercial taxes. Thereafter Shri Uttam Chand Kalra passed away on 29.09.2002 and Shri Sain Das Kalra passed away on 14.09.2014. Consequently, the Appellants/landlords became the owner of the suit premises. In the month of September 2020, the Appellants/landlords revised monthly rent to Rs. 25,000/- per month and the respondent/tenant agreed to pay the revised amount of rent. Further, the respondent/tenant paid rent @ Rs.25,000/- for the month of September and October, 2020, but thereafter respondent stopped making the payment of rent.
4. The respondent/tenant failed to make the payment of rent from November 2020 to June 2021 amounting to Rs 2,00,000/- (Rs. 25,000/- pm). Being aggrieved with the aforesaid, the Appellants/landlords herein sent a legal notice dated 12.07.2021 terminating the tenancy prescribing 30 days’ time to the respondent/tenant to pay the arrears of rent as per S. 106 of the Transfer of Property Act (hereinafter TPA).
5. Thereafter, the Appellants/original plaintiffs filed suit being Civil S.C.C Suit No. 52 of 2021 before the Judge, Small Causes Court namely Additional District Judge, Kanpur Nagar u/s 15 of the Provincial Small Causes Court Act r/w S.106 of the TPA praying inter-alia for a decree of eviction and a decree of recovery of arrears of rental Rs.2,37,000/- against the defendant/respondent. Further a decree of recovery of damages future and pendentlite @ Rs.2000/- from 16.08.2021 till the date of actual eviction of the defendant/tenant from the suit premises.
6. Ld. Judge, Small Causes Court/ Additional District Judge, Kanpur vide order dated 08.03.2022 in S.C.C Suit No. 52/2021 ordered ex-parte proceedings against the respondent/defendant. Being aggrieved, the respondent/defendant appeared before the Hon'ble Trial Court and moved an application no. 25 C under Order IX Rule 7 of CPC for recall of ex-parte proceedings. Subsequently, Ld. Additional District Judge, Kanpur vide order dated 10.11.2022 in S.C.C Suit No. 52/2021 recalled the order dated 08.03.2022 by allowing the application no. 25 C subject to cost of Rs. 1000/-. Thereafter, the Appellants/plaintiffs preferred an application under Order XV Rule 5 CPC in S.C.C Suit No. 52/2021 before Ld. Judge, Small Causes Court/ Additional District Judge, Kanpur praying inter-alia to strike off the defence of the respondent/defendant for want of mandatory compliance of the provisions of Order XV Rule 5 CPC. The defendants had failed to deposit entire arrears of rent, damages and costs of the suits etc. on the first
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Court can strike off defense for non-compliance with rent payment orders, emphasizing that defiance of court directives is unacceptable and justifies severe consequences.
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