Home  > Recent Judgements  > ORDER XV RULE 5 CPC AND STRIKING OFF TENANT’S DEFENCE: SUPREME COURT REITERATES SAFEGUARDS AGAINST MECHANICAL EVICTION ORDERS

April-07- 2026

ORDER XV RULE 5 CPC AND STRIKING OFF TENANT’S DEFENCE: SUPREME COURT REITERATES SAFEGUARDS AGAINST MECHANICAL EVICTION ORDERS

Introduction

In a significant ruling concerning landlord-tenant disputes, the Supreme Court in Dharmendra Kalra & Ors. v. Kulvinder Singh Bhatia clarified that a tenant’s defence cannot be struck off mechanically under Order XV Rule 5 of the Code of Civil Procedure, 1908, without first determining whether the default in depositing rent was wilful or bona fide.

The judgment is important because courts across India frequently deal with eviction suits where landlords seek striking off the tenant’s defence on the ground of delayed or non-payment of rent. The Supreme Court emphasized that such power, though available to courts, must be exercised cautiously and only after satisfying certain foundational requirements.

A bench comprising Justice S.V.N. Bhatti and Justice Prasanna B. Varale delivered the ruling.

Background of the Dispute

The dispute arose from a tenancy involving two commercial halls where the respondent-tenant was operating a hotel named “Gyan Vaisnav Hotel.”

According to the landlords:

  • The rent was revised to Rs. 25,000 per month in September 2020;
  • The tenant defaulted in payment from November 2020 onwards;
  • Despite repeated demands, arrears were not cleared.

The landlords subsequently issued a notice terminating the tenancy under Section 106 of the Transfer of Property Act, 1882, and thereafter instituted eviction proceedings before the Small Causes Court seeking:

  1. Eviction of the tenant;
  2. Recovery of rent arrears;
  3. Other consequential reliefs.

During the pendency of the suit, the landlords moved an application under Order XV Rule 5 CPC seeking striking off the tenant’s defence on the ground that rent had not been deposited in court.

The Trial Court accepted the landlords’ plea and, by order dated August 5, 2023, struck off the tenant’s defence.

What Is Order XV Rule 5 CPC?

Order XV Rule 5 CPC, applicable in certain states including Uttar Pradesh, is a procedural provision intended to protect landlords from prolonged litigation where tenants continue to occupy premises without paying rent.

Broadly, the provision requires the tenant to:

  • Deposit admitted rent at the first hearing;
  • Continue depositing monthly rent during pendency of the suit.

Failure to comply may result in the court striking off the tenant’s defence.

However, the Supreme Court reiterated that the provision cannot be applied in an automatic or punitive manner.

The Court clarified that even though the language of the provision appears mandatory, judicial discretion still exists.

Supreme Court’s Key Observations

  1. Defence Cannot Be Struck Off Mechanically

The Supreme Court strongly observed that courts cannot mechanically strike off a tenant’s defence merely because there is some delay or irregularity in rent deposit.

The bench observed:

“The 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 further emphasized that striking off the defence is a serious consequence because it virtually deprives the tenant of an effective opportunity to contest the eviction suit.

Accordingly, such power should only be used in cases involving:

  • Deliberate default;
  • Wilful non-compliance;
  • Contumacious conduct;
  • Abuse of judicial process.

The Court clarified that minor procedural lapses or bona fide mistakes should not automatically result in denial of defence.

 

  1. Determination of “First Date of Hearing” is Essential

One of the most important aspects of the judgment concerns interpretation of the phrase “first date of hearing.”

The Court held that before invoking Order XV Rule 5 CPC, the trial court must first determine:

  • What exactly constitutes the “first date of hearing” in the suit.

The Supreme Court explained that the “first date of hearing” is not every procedural date listed before the court. Instead, it refers to:

The date on which the court proposes to apply its judicial mind to the controversy involved in the suit.

Thus, dates fixed merely for:

  • Filing pleadings,
  • Issuance of summons,
  • Procedural compliance,
  • Administrative purposes,

cannot automatically be treated as the “first hearing.”

The Court stated that unless this date is clearly identified, the foundation for invoking Order XV Rule 5 CPC itself becomes uncertain.

This clarification is likely to have wide implications in rent litigation because many trial courts often treat preliminary procedural dates as the first hearing date.

 

  1. Proper Service of Summons Must Be Examined

The Supreme Court further stressed that before penal consequences are imposed on a tenant, the court must ensure proper service of summons and adequate opportunity of hearing.

The Court noted that:

  • If the tenant was not properly served,
  • Or was not aware of proceedings,
  • Or did not receive adequate opportunity,

then striking off the defence would violate principles of natural justice.

The bench found that these foundational aspects had not been conclusively examined by the Trial Court before striking off the defence.

 

  1. Wilful Default Vs Bona Fide Default

A major principle reiterated in the judgment is the distinction between:

  • Wilful default; and
  • Bona fide or inadvertent default.

The Court held that trial courts must examine:

  • Whether the tenant intentionally avoided payment;
  • Whether the delay occurred due to genuine reasons;
  • Whether substantial compliance exists;
  • Whether the conduct indicates deliberate defiance.

The Supreme Court observed that courts must adopt a balanced approach instead of treating every default identically.

This reasoning aligns with earlier judicial precedents emphasizing that procedural rules are intended to advance justice and not to punish litigants unfairly.

Criticism of the High Court’s Approach

The Supreme Court also found fault with the approach adopted by the High Court.

Initially, the High Court had partly allowed the tenant’s revision petition and directed deposit of rent at Rs. 1,500 per month instead of Rs. 25,000.

The High Court had further warned that non-compliance would result in striking off the defence.

However, later the High Court granted extension of time to the tenant on the ground that the local counsel had gone abroad.

The Supreme Court observed that the High Court failed to reconcile:

  • Its earlier conditional order; and
  • The later indulgence shown to the tenant.

This inconsistency was criticized by the apex court.

Supreme Court Sets Aside Orders

After examining the matter, the Supreme Court set aside:

  • The Trial Court’s order striking off the defence; and
  • The consequential High Court orders.

The matter was remanded back to the Trial Court for fresh consideration

Directions Issued by the Supreme Court

The Trial Court has now been directed to:

  1. Determine the “first date of hearing” in accordance with law;
  2. Examine whether there was due or substantial compliance with Order XV Rule 5 CPC;
  3. Consider whether the default was wilful or bona fide;
  4. Pass a reasoned order after giving adequate opportunity to both parties.

Importance of the Judgment

This ruling is likely to become an important precedent in landlord-tenant litigation across India, particularly in states where Order XV Rule 5 CPC is frequently invoked.

The judgment reinforces several important legal principles:

Protection Against Arbitrary Orders –

The ruling prevents trial courts from passing automatic orders striking off defence without proper judicial scrutiny.

Emphasis On Natural Justice

The judgment reiterates that litigants must receive:

  • Proper notice,
  • Opportunity of hearing,
  • Fair adjudication.

Judicial Discretion Still Exists

Although Order XV Rule 5 uses mandatory language, the Supreme Court clarified that courts retain discretion to examine the nature of default.

Substantial Compliance Matters

The Court recognized that substantial compliance with rent deposit requirements may sometimes be sufficient, especially where no deliberate misconduct is shown.

Broader Legal Significance

The decision reflects the Supreme Court’s continuing effort to balance:

  • Landlords’ rights to timely rent and speedy eviction proceedings; and
  • Tenants’ rights to fair procedure and meaningful opportunity to defend themselves.

The ruling also highlights a larger judicial principle that procedural laws should not be applied so rigidly that they defeat substantive justice.

By insisting upon determination of the “first date of hearing,” proper service, and examination of wilfulness, the Court has laid down procedural safeguards that will guide trial courts in future rent disputes.

Conclusion

The Supreme Court’s ruling in Dharmendra Kalra & Ors. v. Kulvinder Singh Bhatia is a significant reaffirmation of procedural fairness in eviction proceedings.

The Court made it clear that striking off a tenant’s defence is not a routine procedural consequence but a serious judicial action that requires careful examination of facts, conduct, notice, and compliance.

The judgment serves as an important reminder that while landlords are entitled to protection against non-paying tenants, courts must also ensure that tenants are not deprived of their defence without due process and proper adjudication.