Power To Strike Off Tenant's Defense Under Order XV Rule 5 CPC Is Discretionary, Not To Be Exercised Mechanically: Supreme Court

"Power to strike off the defence under Order XV Rule 5 CPC, though couched in mandatory terms, is not to be exercised mechanically. The Court must consider whether there has been substantial compliance and whether the default is wilful or contumacious," Supreme Court, in a significant ruling dated May 15, 2026, has held that the power to strike off a tenant’s defense under Order XV Rule 5 of the Code of Civil Procedure (CPC) is a discretionary power that should not be invoked as a matter of course.

A bench of Justice Prasanna B. Varale and Justice S.V.N. Bhatti observed that striking off a defense is a "drastic" and "penal" consequence, intended only for grossly recalcitrant tenants who show a mood of defiance or gross neglect in depositing admitted rent.

The appellants (landlords) filed a suit for eviction and recovery of arrears against the respondent (tenant) regarding a commercial premises in Kanpur. The Trial Court ordered the tenant's defense to be struck off under Order XV Rule 5 CPC for failing to deposit the entire arrears of rent and damages by the first date of hearing. While the High Court initially allowed the tenant's revision and later granted extensions for deposit despite a "final opportunity" warning, the landlords moved the Supreme Court challenging the indulgence shown to the defaulting tenant.

The primary question before the court was whether the provision for striking off a defense under Order XV Rule 5 CPC is mandatory or discretionary in nature. The court was also called upon to determine the correct interpretation of the "first date of hearing" for the purpose of rent deposits and whether the High Court was justified in granting multiple extensions for compliance.

Discretionary Nature Of Power Under Order XV Rule 5 CPC

The Court emphasized that while Order XV Rule 5 CPC (as applicable in Uttar Pradesh) aims to ensure tenants do not continue possession without paying rent, the power to strike off a defense is not an automatic weapon. Relying on the precedent in Bimal Chand Jain v. Sri Gopal Agarwal (1981), the bench noted that the word "may" in the provision vests a reserve of discretion in the court.

The bench observed that a serious responsibility rests on the court to decide whether the facts and circumstances of a case justify such a punitive measure. It held that the court must determine if there has been substantial compliance and whether the default is wilful or contumacious before shutting out the tenant's right to be heard.

"Striking off the 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 the part of the tenant."

Defining The 'First Date Of Hearing'

The Supreme Court noted that the Trial Court had invoked the penal consequence without a clear determination of the "first date of hearing." Citing Siraj Ahmad Siddiqui v. Prem Nath Kapoor (1993), the bench clarified that the "first date of hearing" is not a mere formal date mentioned in the summons for appearance or filing a written statement.

The Court held that the first hearing refers to the date on which the Court actually proposes to apply its mind to the controversy or determine points of dispute, typically at the stage of framing issues. Without a clear determination of this date, the bench found that the very foundation for invoking the penalty under Order XV Rule 5 CPC becomes uncertain and legally untenable.

"The expression ‘first date of hearing’ has to be understood as the date when the Court proposes to apply its mind to the controversy involved in the suit and not any earlier date fixed for procedural purposes."

Procedural Law As A Handmaid Of Justice

Addressing the High Court’s grant of extensions, the Supreme Court referred to Salem Advocate Bar Association v. Union of India (2005) to reiterate that procedural rules are designed to advance the cause of justice, not thwart it. The bench observed that while the respondent showed lapses in adhering to timelines, the explanation offered indicated that the delay was neither gross nor wholly unexplained.

However, the Court also criticized the Trial Court for proceeding in a "mechanical manner" and the High Court for failing to reconcile its earlier conditional orders with the subsequent indulgence granted. The bench noted that both courts failed to comprehensively address the relevant legal aspects in their proper perspective.

"The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice."

Final Directions And Remand

The Supreme Court concluded that the ends of justice would be best served by remanding the matter to the Trial Court for fresh adjudication. It directed the Trial Court to specifically determine the "first date of hearing," examine whether there was substantial compliance by the tenant, and consider whether the default was wilful or bona fide.

The bench set aside the impugned orders of the High Court and requested the Trial Court to dispose of the application under Order XV Rule 5 CPC expeditiously, preferably within six months. The Court clarified that it had not expressed any opinion on the merits of the rival contentions, leaving all issues open for the Trial Court's determination.

The ruling reinforces the principle that procedural defaults in rent deposits should not lead to the automatic forfeiture of a tenant's right to defend a suit. By prioritizing judicial discretion and substantial compliance over mechanical application of statutes, the Supreme Court has protected the "socially informed perspective" required in landlord-tenant litigation while ensuring that only deliberate defaulters face the extreme consequence of having their defense struck off.

Date of Decision: 15 May 2026