CIVIL PROCEDURE CODE, 1908 – Or. XV R. 5 – Striking off defence of tenant – Scope and nature of power – Judicial discretion – Meaning of “first date of hearing” – Delay in deposit of rent – Wilful default – Remand.

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APEX COURT HELD THAT 

CIVIL PROCEDURE CODE, 1908 – Or. XV R. 5 – Striking off defence of tenant – Scope and nature of power – Judicial discretion – Meaning of “first date of hearing” – Delay in deposit of rent – Wilful default – Remand.

Tenant failed to deposit arrears of rent within stipulated time in eviction suit – Trial Court struck off defence under O. XV R. 5 CPC – High Court interfered and granted time to deposit rent and subsequently extended time despite earlier conditional order – Validity.

Held : Provision under O. XV R. 5 CPC, though mandatory in form, confers judicial discretion and penal consequence of striking off defence cannot be invoked mechanically. Court is required to examine whether there has been substantial compliance and whether default is wilful, deliberate or contumacious. Expression “first date of hearing” means date on which Court applies its mind to controversy involved in suit, ordinarily at stage of framing issues, and not merely any procedural date fixed in proceedings. Trial Court failed to conclusively determine first date of hearing and mechanically invoked drastic consequence of striking off defence. High Court, while granting extension of time, also failed to reconcile earlier conditional order with subsequent indulgence granted to tenant. Procedural law is intended to advance cause of justice and not defeat it. In circumstances, matter required fresh adjudication by Trial Court on question of compliance with O. XV R. 5 CPC and nature of default committed by tenant.

Bimal Chand Jain v. Sri Gopal Agarwal, (1981) 3 SCC 486; Santosh Mehta v. Om Prakash, (1980) 3 SCC 610; Siraj Ahmad Siddiqui v. Prem Nath Kapoor, (1993) 4 SCC 406; Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344, relied on.

(Paras 15 to 29)

HELD

Power to strike off defence under Order XV Rule 5 CPC is discretionary and not automatic merely because default has occurred. Court must consider surrounding circumstances and determine whether conduct of tenant discloses wilful or contumacious default. (Paras 15 to 17)

Expression “first date of hearing” refers to date on which Court applies its mind to controversy between parties for purposes of framing issues and not any earlier procedural date. (Paras 18 to 20)

Rules of procedure are handmaid of justice and procedural provisions should receive interpretation advancing justice rather than defeating it. (Paras 21 and 22)

Where Trial Court invoked penal consequence mechanically and High Court failed to comprehensively address relevant aspects while extending time, remand for fresh adjudication was warranted. (Paras 23 to 29)

RESULT

Impugned orders set aside. Matter remanded to Trial Court for fresh adjudication of application under Order XV Rule 5 CPC in accordance with law.