Court says striking off defence is a “drastic” measure reserved for wilful and contumacious defaulters.
Supreme Court of India.
New Delhi, May 24, 2026 — In a significant judgment reinforcing judicial discretion in landlord-tenant disputes, the Supreme Court of India has held that the power to strike off a tenant’s defence under Order XV Rule 5 of the Code of Civil Procedure (CPC) cannot be exercised mechanically and must be invoked only in cases of deliberate or contumacious default.
A bench comprising Justice Prasanna B. Varale and Justice S.V.N. Bhatti observed that striking off a defence is a “drastic” and “penal” consequence intended only for tenants who display a clear mood of defiance or gross negligence in depositing admitted rent.
“Power to strike off the defence under Order XV Rule 5 CPC, though couched in mandatory terms, is not to be exercised mechanically,” the bench held.
Eviction Dispute Originated From Kanpur Commercial Property
The case arose from an eviction and rent recovery suit filed by landlords against a tenant occupying a commercial premises in Kanpur.
The trial court had struck off the tenant’s defence under Order XV Rule 5 CPC on the ground that the tenant failed to deposit the entire arrears of rent and damages by the “first date of hearing.”
Although the High Court initially granted relief to the tenant and later extended the time for deposit despite earlier warnings of a “final opportunity,” the landlords approached the Supreme Court challenging the repeated indulgence shown to the tenant.
The central issue before the apex court was whether the provision under Order XV Rule 5 CPC operates mandatorily or whether courts retain discretion while imposing the penal consequence of striking off a defence.
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Supreme Court Reaffirms Judicial Discretion
Justice Prasanna B Varale.
The bench relied heavily on the precedent in Bimal Chand Jain v. Sri Gopal Agarwal to hold that the use of the word “may” in Order XV Rule 5 CPC gives courts discretionary authority rather than imposing an automatic obligation.
The judges emphasized that courts must assess whether there has been substantial compliance with rent deposit requirements and whether the tenant’s conduct reflects wilful disobedience before denying the right to defend the suit.
“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,” the court observed.
The judgment stressed that procedural penalties should not be used indiscriminately to shut out litigants from contesting disputes.
Clarification On ‘First Date Of Hearing’
A key aspect of the ruling involved interpretation of the expression “first date of hearing” under Order XV Rule 5 CPC.
Referring to the Supreme Court decision in Siraj Ahmad Siddiqui v. Prem Nath Kapoor, the bench clarified that the phrase does not refer merely to a date fixed for appearance or filing of pleadings.
Instead, the “first date of hearing” means the stage at which the court actually applies its mind to the controversy, typically during framing of issues.
The Supreme Court noted that the trial court had failed to clearly determine this crucial date before invoking the penal consequences of the provision.
“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,” the bench said.
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Procedural Rules Must Advance Justice
The Supreme Court further reiterated the long-standing principle that procedural law exists to facilitate justice and not obstruct it.
Citing Salem Advocate Bar Association v. Union of India, the bench held that rigid interpretation of procedural requirements could defeat substantive justice in certain circumstances.
While acknowledging that the tenant had committed lapses in complying with deposit timelines, the court observed that the delay was neither entirely unexplained nor demonstrably malicious.
At the same time, the bench criticized both the trial court and the High Court for failing to properly examine the legal standards governing the exercise of discretion under Order XV Rule 5 CPC.
Matter Remanded For Fresh Consideration
The apex court ultimately set aside the impugned orders and remanded the matter to the trial court for fresh adjudication.
The trial court has now been directed to specifically determine the “first date of hearing,” assess whether the tenant substantially complied with deposit obligations, and examine whether the default was wilful or bona fide.
The Supreme Court requested the trial court to dispose of the matter expeditiously, preferably within six months.
The ruling is expected to have broader implications in landlord-tenant litigation across jurisdictions where similar procedural provisions apply, reinforcing that tenants cannot automatically lose their right to defend eviction proceedings merely because of procedural lapses unless the default is deliberate and contumacious.
