2022 LiveLaw (SC) 607

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
DINESH MAHESHWARI; J., ANIRUDDHA BOSE: J.
JULY 11, 2022
CIVIL APPEAL NO. 4682 OF 2022 (ARISING OUT OF SLP(CIVIL) NO. 1319 OF 2019)
ASHA RANI GUPTA versus SRI VINEET KUMAR
Code of Civil Procedure, 1908; Order XV Rule 5 - it cannot be laid down as a general
proposition that by merely denying the title of plaintiff or relationship of landlord-
tenant/lessor-lessee, a defendant of the suit of the present nature could enjoy the
property during the pendency of the suit without depositing the amount of
rent/damages. (Para 14)
Code of Civil Procedure, 1908; Order XV Rule 5 - As per these provisions, in a suit
by a lessor for eviction of a lessee after the determination of lease and for recovery
of rent or compensation for use and occupation, the defendant is under the
obligation: (1) to deposit the entire amount admitted by him to be due together
with interest at the rate of 9% per annum on or before the first hearing of the suit;
and (2) to regularly deposit the monthly amount due within a week of its accrual
throughout the pendency of the suit. The consequence of default in making either
of these deposits is that the Court may strike off his defence. The expression 'first
hearing' means the date for filing written statement or the date for hearing
mentioned in the summons; and in case of multiple dates, the last of them. The
expression 'monthly amount due' means the amount due every month, whether as
rent or damages for use and occupation at the admitted rate of rent after making
no other deduction except taxes, if paid to the local authority on lessor's account.
It is, however, expected that before making an order striking off defence, the Court
would consider the representation of the defendant, if made within 10 days of the
first hearing or within 10 days of the expiry of one week from the date of accrual
of monthly amount. (Para 9.1)
(Arising out of impugned final judgment and order dated 02-11-2018 in A No. 2419/2018 passed by
the High Court of Judicature at Allahabad)
For Petitioner(s) Mr. Dinesh K. Garg, Adv. Mr. Dhananjay Garg, AOR Mr. Abhishek Garg, Adv. Mr.
N. Suresha, Adv. Mr. Ishaan Tiwari, Adv;
For Respondent(s) Mr. Vineet Kumar, Adv. Mr. Praveen Jain, AOR
JUDGMENT
DINESH MAHESHWARI, J.
Leave granted.
2. The present appeal arises out of a suit for eviction and recovery of arrears of rent
as also damages for use and occupation, as filed by the plaintiff-appellant against the
defendant-respondent 1 , wherein the order dated 01.03.2017, as passed by the Trial
Court striking off the defence of the defendant-respondent for failure to pay or deposit

1
Hereinafter, the parties have also been referred to as ‘the plaintiff’ or as ‘the defendant’, as per their status in the suit.
1
the due rent, which was approved by the Revisional Court in its order dated 18.01.2018,
has been set aside by the High Court in its impugned order dated 02.11.2018.
3. The root question calling for determination in this appeal is as to whether the High
Court was right in reversing the order striking off defence in terms of Order XV Rule 5 of
the Code of Civil Procedure, 19082, as applicable to the present case3?
4. The relevant factual and background aspects, so far relevant for the present
purpose, are as follows:
4.1. The plaintiff-appellant has filed the suit leading to this appeal, being S.C.C. Suit
No. 27 of 2011, in the Court of Judge, Small Causes, Aligarh against the defendant-
respondent on 30.04.2011 with the averments, inter alia, that she is the owner of a shop
bearing Municipal Corporation No. 1/225, situated at Naurangabad Sahar, Kol, Aligarh,
for having purchased the same from the erstwhile owner Shri Rajiv Kant Sharma through
a registered sale deed dated 10.05.2010. The appellant has further averred that the
defendant-respondent is a tenant in the suit shop since the time of its erstwhile owner on
a monthly rent of Rs. 625/- apart from statutory taxes; that after her purchasing the shop,
the defendant became her tenant; and that after registration of the sale deed, the
erstwhile landlord had informed the defendant about sale of the shop to the plaintiff.
4.2. The plaintiff-appellant has alleged that the defendant-respondent was a chronic
defaulter in payment of rent and taxes; and despite information of the sale deed dated
10.05.2010 and despite demand made by her, the rent along with taxes had not been
paid by him since the month of May 2010. The plaintiff has averred that she got served
a legal notice under Section 106 of the Transfer of Property Act, 1882 to the defendant
on 08.02.2011, who refused to accept the notice and has neither paid the balance rent
and damages nor vacated the suit shop. It has also been pointed out that the suit shop
was a newly constructed one to which, the provisions of U.P. Act No. 13 of 1972 were
not applicable. While asserting her right to receive the rent and damages in relation to
the suit shop from the month of May 2010 and with other averments regarding cause of
action, jurisdiction and court fee etc., the plaintiff has claimed the reliefs in the following
terms: -
“10. That the plaintiff is entitled for the following relief: -
a) the decree may kindly be passed in favour of the plaintiff and against the defendant for
realizing amount of Rs. 8,050/- and damages for use and occupation @ Rs.625/- per month
presently and in future besides the taxes.
b) a decree of eviction in favour of plaintiff and against the defendant for the shop which is in
the possession of defendant and after eviction of the defendant the possession of the shop may be
given to the plaintiff through the Amin of the Court, may be passed.
c) the expenses of the suit may be recovered from the defendant and be given to the plaintiff.
d) any other relief which this Hon’ble Court may deem fit and proper in the circumstances of the
case may be given to the plaintiff.”

2
‘CPC’, for short.
3
Rule 5 of Order XV was inserted to CPC for its application in the State of Uttar Pradesh by the Uttar Pradesh Laws (Amendment)
Act, 1972; it was substituted by the Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976 w.e.f. 01.01.1977 and was
slightly amended by Notification No. 121/IV-h-36-D dated 10.02.1981 w.e.f. 03.10.1981.
2
4.3. In his written statement, the defendant-respondent has, in essence, denied the
relationship of landlord and tenant between the plaintiff and himself, though he would not
deny his status as tenant in the suit shop. The defendant has also asserted that the
alleged sale deed dated 10.05.2010 is illegal and void. He has assigned the reasons for
this assertion by relying on certain recitals made by said Shri Rajiv Kant Sharma in
another sale deed dated 04.05.2010 executed in favour of Abhishek Gupta (son of the
present plaintiff) and particularly, the boundaries on the northern side of the said property.
In other words, the assertion is that in the sale deed dated 04.05.2010, no such shop
was shown on the northern side as attempted to be sold by the sale deed dated
10.05.2010. The defendant has further asserted that the shop in question was let out to
him by Smt. Sudha Sharma wife of Shri Rajiv Kant Sharma; and not by Shri Rajiv Kant
Sharma, the alleged transferor of the plaintiff. According to the defendant, Shri Rajiv Kant
Sharma was not the landlord; and his landlady Smt. Sudha Sharma had not transferred
the shop in question to the plaintiff. The defendant has also alleged that Smt. Sudha
Sharma was earlier issuing the rent receipts but afterwards, stopped giving the receipts
though she was regularly receiving rent and that the rent up to 31.08.2010 had been paid
to Smt. Sudha Sharma. The defendant has also refuted the averments about
inapplicability of U.P. Act No. 13 of 1972 and has alleged that the shop in question being
too old, the said Act is applicable to it. The defendant has yet further asserted that the
notice dated 18.02.2011 never reached him and he had never refused to receive the
notice.
4.4. It is also noticed that at the stage of evidence in this suit, the defendant moved an
application seeking appointment of a Court Commissioner with the submissions that a
site plan, containing the details of the property, including the measurement of the suit
shop and the house situated on the southern side of the shop was required to be called.
The Trial Court considered and rejected this application by its order dated 03.02.2016,
for there being no reason to issue a commission in view of the respective stand of the
parties and the real questions involved in the matter.
4.5. Thereafter, the plaintiff-appellant filed an application with reference to the
provisions of Order XV Rule 5 CPC as applicable to the present case and prayed that
the defence of the defendant-respondent be struck off, for the reason that defendant had
not deposited any rent and no evidence was adduced by him to establish any payment
of rent. This application was contested by the defendant-respondent with the
submissions that the provisions of Order XV Rule 5 CPC were applicable only to a case
where the defendant would accept the plaintiff as his landlord; and in the present case,
he had taken the special plea that the plaintiff was not the landlord or the owner of the
suit shop and had clearly averred that there was no relationship of landlord and tenant
between the plaintiff and defendant. The defendant-respondent also referred to certain
rent receipts said to have been issued by the said Smt. Sudha Sharma.
4.6. After having examined the record and the rival contentions, the Trial Court, in its
order dated 01.03.2017, found that no evidence was placed on record by the defendant
to show his payment of rent to the plaintiff and observed that even if the tenant would
deny the relationship of landlord and tenant, the application under Order XV Rule 5 CPC
was maintainable. The Trial Court, accordingly, proceeded to strike off the defence while
observing, inter alia, as under: -
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 “No such evidence has been filed on the record by the defendant so that it could become
explicit that on the date of sale deed on 10.05.2010, the alleged rent was deposited in favour of
Asha Devi or payment was made to the plaintiff Asha Devi. According to the aforesaid documentary
evidence available on the record, principle of law laid down in the citations, if the tenant has denied
the relationship landlord and tenant, then the application shall be maintainable under the provision
of Order XV Rule 5 of Civil Procedure Code. As per the citation relied upon on behalf of the plaintiff
is more recent in comparison to the citation relied upon by the defendant. Although the principle of
law laid down in both citations are applicable with respect to the case in this Court, but due to the
citation relied upon by the plaintiff being more recent, so it has more significance. Therefore, the
application 61Ga of the plaintiff ought to be allowed and the defence of the defendant ought to be
struck off.
ORDER
The application 61Ga is allowed and the defence of the defendant is struck off. The record
be put up on 16.03.2017 for cross examination of the witness PW-1.”
4.7. The order aforesaid was challenged by the defendantrespondent in S.C.C.
Revision No. 11 of 2017, which was duly considered and dismissed by the Fourth
Additional District Judge, Aligarh on 18.01.2018, while agreeing with the Trial Court and
observing as under: -
“The revisionist has admitted as the tenant of the shop in suit in the written statement. But it
was mentioned that the respondent / plaintiff is not the owner of the shop in suit and the respondent
has averred that she is the owner of the shop in suit on the basis of the sale deed. This fact is
undisputed that the revisionist did not deposit the rent of the shop in suit in the Court on the first
date of hearing and even he did not deposit the rent corresponding to the period thereafter. In case
the revisionist denies the relationship of tenant and landlord, then he should have complied with
second part of the Order XV Rule 5 of Civil Procedure Code, but it was not done so as per the
principle of law laid down by the Hon’ble High Court of Allahabad in the citation 2012 (1) CAR, 93
Allahabad, Mukesh Singh & Ors. Vs. Ramesh Chand Solanki. Therefore, in view of facts and
circumstances of the present case, no error of law is found in the impugned order passed by the Ld.
Subordinate Court and even the Ld. Subordinate Court has not superseded its jurisdiction.
Therefore, there appears no sufficient ground to interfere with the impugned order. Consequently
the revision ought to be set aside.”
5. The defendant-respondent, being aggrieved of the orders aforesaid, approached
the High Court under Article 227 of the Constitution of India and his petition (No. 2419 of
2018) came to be allowed by the High Court by way of its impugned order dated
02.11.2018.
5.1. The High Court took note of the background aspects and the long-drawn
arguments with case laws cited by either of the parties; and after a survey of various
decisions of the Allahabad High Court as also of this Court, took the view that the
discretionary power as regards striking off defence must be exercised with great
circumspection. Thereafter, though the High Court observed that the pleas taken by the
defendant-respondent might apparently be for the purpose of protracting the litigation as
the property was purchased through a registered sale deed that distinctly carried the
number (1/225) of the shop which was let out to the defendant-respondent but, opined
that the defendantrespondent was entitled to ‘some indulgence’. The High Court, thus,
set aside the orders impugned before it; and issued directions to the defendant to deposit
the arrears of rent together with interest within one month; and further to deposit the

4
current rent as determined by the Trial Court, month by month, by seventh of every month
during the pendency of litigation.
5.2. In the impugned order dated 02.11.2018, where first 42 paragraphs are devoted to
background facts, rival contentions and discussion concerning cited decisions with
several extractions, entire of the reasoning and then, conclusion and directions of the
High Court are contained in paragraphs 43 to 47, which could be usefully reproduced as
under: -
“43. This Court finds from a consideration of the judgments cited by the counsel for either of the
parties that the language of Order XV, Rule 5 CPC is similar to the language used in sub section 7
of Section 15 of the Delhi Rent Control Act, 1958 and sub section 1 of Section 13 of the Tripura
Building Lease and Control Act, 1975. The Delhi Rent Control Act, was considered by the Supreme
Court in Miss. Santosh Mehta Vs. Om Prakash and in Kamla Devi Vs. Basudev.
44. The Supreme Court observed that the Rent Control Court / Appellate Authority has been
conferred with a discretionary power which must be exercised with great circumspection.
45. In the case of the petitioner who is the defendant before the learned Trial Court, a specific
plea was taken regarding non existence of relationship of landlord and tenant. In fact the ownership
of the landlord of the Suit property was also denied, as also the identity of the Suit property, which
was allegedly purchased by the plaintiffs. Though the pleas taken by the defendant / tenant may
apparently be for the purpose of protracting the litigation as the property was bought through a
registered sale deed and the shop number mentioned in the said sale deed was 1/225 which was
the same as the shop rented out to the defendant / tenant, yet the defendant / tenant deserves some
indulgence.
46. The orders impugned are set aside. However, a direction is issued to the petitioner / tenant
to deposit arrears of rent @ Rs. 625/- per month along with 9% interest per annum and cost before
the learned Trial Court within a period of one month from today. The tenant shall also deposit the
current rent as determined by the learned Trial Court, month to month by the seventh of every month
during the pendency of the litigation. All such deposits made by the tenant shall be kept in a separate
interest bearing account by the learned Trial Court and shall abide by the final decision of the SCC
Suit filed by the plaintiff / respondents.
47. This matter stands thus disposed of.”
(emphasis supplied)
6. Assailing the order so passed by the High Court, learned counsel appearing for the
plaintiff-appellant has strenuously argued that the High Court has dealt with the matter
in a rather cursory manner and has erroneously upset the considered orders dated
01.03.2017 and 18.01.2018, as passed respectively by the Trial Court and the Revisional
Court, striking off the defence of the defendant-respondent in terms of Order XV Rule 5
CPC for non-payment of the due amount of rent/damages.
6.1. Learned counsel has argued that the High Court has misinterpreted and
misapplied the provisions of Order XV Rule 5 CPC and has allowed the petition filed by
the defendant by merely holding that he was entitled to some indulgence but, without
giving any specific reason or finding to overturn the considered orders passed by the
subordinate Courts.
6.2. Learned counsel has referred to the provisions contained in Order XV Rule 5 CPC
and has submitted that as per the said provisions, the defendant-respondent, being the
tenant of the suit shop, was required to pay or deposit the entire rent for use and
occupation of the shop in question but, he neither paid nor deposited the due amount on

5
the first hearing though he filed the written statement on 04.09.2012; and he did not pay
or deposit the monthly amount due during the continuation of the suit. According to the
learned counsel, even if the defendant-respondent had taken the plea suggestive of
denial of title of the plaintiff and denial of the relationship of landlord and tenant, he is not
absolved of the liability to make payment of rent; and on his failure to make such
payment/deposit, the consequences contemplated by the Order XV Rule 5 CPC would
indeed follow and he cannot be granted any so-called indulgence.
6.3. Learned counsel has also attempted to refer to the additional document filed with
I.A. No. 24489 of 2022, inter alia, being of affidavit filed by the defendant-respondent in
the year 1990 admitting Shri Rajiv Kant Sharma as the owner of the suit property, from
whom the plaintiffappellant had purchased under the registered sale deed dated
10.05.2010.
7. Per contra, learned counsel for the defendant-respondent has duly supported the
order impugned and has submitted that the view taken by the High Court calls for no
interference.
7.1. It has been submitted with reference to the decisions of this Court in the case of
Bimal Chand Jain v. Sri Gopal Agarwal: 1981 (3) SCC 486 and Manik Lal Majumdar
and Ors. v. Gouranga Chandra Dey and Ors.: AIR 2005 SC 1090 that when the
defendant-respondent has taken specific plea regarding non-existence of relationship of
landlord and tenant, he is not liable to deposit any rent in terms of the Order XV Rule 5
CPC. It is submitted that the plaintiff’s ownership of the suit property has been denied by
the defendant and the identity of the property allegedly purchased by the plaintiff has
also been questioned; and these contentions/objections of the defendant could only be
decided after the trial. Thus, until the matter is duly tried, the defendant cannot be
compelled to deposit the arrears of rent due in this suit and the High Court has rightly
extended him indulgence of not striking off the defence.
7.2. It has also been submitted that the defendant-respondent had paid the rent to the
erstwhile landlord Smt. Sudha Sharma upto 31.08.2010 and the receipts said to have
been given by her have been referred to. It has further been submitted that the defendant-
respondent, obviously, entertained genuine doubt about the entitlement of the plaintiff
because the erstwhile landlord had never informed about her having sold the property
and for payment of rent to the plaintiff; and in view of obvious discrepancies in the
description of properties allegedly sold by Shri Rajiv Kant Sharma, there had been
genuine confusion about the landlord/owner of the property. In this scenario, the
defendantrespondent cannot be faulted in raising objection and in not making deposit of
rent in the present suit.
7.3. It has been asserted on behalf of the respondent that the expression “may” in sub-
rule (1) of Rule 5 of the Order XV merely vests discretionary power in the Court to strike
off the defence but, it does not oblige the Court to do so in every case of default or non-
payment of rent. In regard to the operation of Order XV Rule 5 CPC, learned counsel for
the defendant-respondent has also relied upon the Division Bench decisions of the High
Court in Ladly Prasad v. Ram Shah Billa and Ors.: (1976) 2 ALR 8 and in Kunwar
Baldevji v. The XI Additional District Judge, Bulandshahar and Ors.: (2003) 1 ARC
637.
6
7.4. It has also been pointed out that pursuant to the order passed by the High Court,
the defendant-respondent has deposited the entire rent from 10.05.2010 to 10.11.2018
and is also making further deposits regularly.
8. We have given thoughtful consideration to the rival submissions and have
examined the record with reference to the law applicable to the present case.
9. For dealing with the relevant question involved, it would be appropriate to take note
of the provisions of Order XV Rule 5 CPC, as applicable to the present case. These
provisions read as under: -
“5. Striking off defence on failure to deposit admitted rent. - (1) In any suit by a lessor for the eviction
of a lessee after the determination of his lease and for the recovery from him of rent or compensation
for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the
entire amount admitted by him to be due together with interest thereon at the rate of nine per centum
per annum and whether or not he admits any amount to be due, he shall throughout the continuation
of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and
in the event of any default in making the deposit of the entire amount admitted by him to be due or
the monthly amount due as aforesaid, the court may, subject to the provisions of sub-rule (2), strike
off his defence.
Explanation 1.- The expression ‘first hearing’ means the date for filing written statement or for
hearing mentioned in the summons or where more than one of such dates are mentioned, the last
of the dates mentioned.
Explanation 2.- The expression ‘entire amount admitted by him to be due’ means the entire gross
amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of
rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid
to a local authority in respect of the building on lessor’s account and the amount, if any, paid to the
lessor acknowledged by the lessor in writing signed by him and the amount, if any, deposited in any
court under section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,
1972.
Explanation 3.- The expression ‘monthly amount due’ means the amount due every month, whether
as rent or compensation for use and occupation at the admitted rate of rent, after making no other
deduction except the taxes, if any, paid to a local authority in respect of the building on lessor’s
account.
(2) Before making an order for striking off defence, the court may consider any representation
made by the defendant in that behalf provided such representation is made within 10 days, of the
first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be.
(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff:
Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff
disputing the correctness of the amount deposited:
Provided further that if the amount deposited includes any sums claimed by the depositor to be
deductible on any account, the court may require the plaintiff to furnish the security for such sum
before he is allowed to withdraw the same.”
9.1. A few basic factors related with the provisions of Order XV Rule 5 CPC could be
noticed at once. As per these provisions, in a suit by a lessor for eviction of a lessee after
the determination of lease and for recovery of rent or compensation for use and
occupation, the defendant is under the obligation: (1) to deposit the entire amount
admitted by him to be due together with interest at the rate of 9% per annum on or before
the first hearing of the suit; and (2) to regularly deposit the monthly amount due within a
week of its accrual throughout the pendency of the suit. The consequence of default in
making either of these deposits is that the Court may strike off his defence. The
7
expression ‘first hearing’ means the date for filing written statement or the date for
hearing mentioned in the summons; and in case of multiple dates, the last of them. The
expression ‘monthly amount due’ means the amount due every month, whether as rent
or damages for use and occupation at the admitted rate of rent after making no other
deduction except taxes, if paid to the local authority on lessor’s account. It is, however,
expected that before making an order striking off defence, the Court would consider the
representation of the defendant, if made within 10 days of the first hearing or within 10
days of the expiry of one week from the date of accrual of monthly amount.
10. At this juncture, we may also take note of the decisions which have been referred
to and relied upon.
10.1. The High Court has primarily based its decision on the cases of Miss Santosh
Mehta v. Om Prakash and Ors.: (1980) 3 SCC 610 and Smt. Kamla Devi v. Vasdev:
(1995) 1 SCC 356. Both these cases related to the operation of Section 15(7) of the Delhi
Rent Control Act, 19574.
10.1.1. In the case of Miss Santosh Mehta (supra), the tenant, a working woman,
had regularly paid the rent to her advocate, who neither deposited the same in the Court
nor paid it to the landlord. In the given circumstances, this Court found it unjustified to
punish the tenant by striking out the defence. In that context, this Court observed that
under Section 15(7) of the Delhi Rent Act, it was in the liberal discretion of the Rent
Controller, whether or not to strike out the defence. This Court also observed that it was
of harsh and extreme step, and having regard to the benign scheme of the legislation,
this drastic power was meant for use in grossly recalcitrant situations where the tenant
was guilty of disregard in paying rent. This Court further said, -
“3. We must adopt a socially informed perspective while construing the provisions and then it will
be plain that the Controller is armed with a facilitative power. He may or may not strike out the
tenant's defence. A judicial discretion has built-inself-restraint, has the scheme of the statute in mind,
cannot ignore the conspectus of circumstances which are present in the case and has the brooding
thought playing on the power that, in a Court, striking out a party's defence is an exceptional step,
not a routine visitation of a punitive extreme following upon a mere failure to pay rent. First of all,
there must be a failure to pay rent which, in the context, indicates wilful failure, deliberate default or
volitional non-performance. Secondly, the section provides no automatic weapon but prescribes a
wise discretion, inscribes no mechanical consequence but invests a power to overcome
intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood
of defiance or gross neglect, the tenant may forfeit his right to be heard in defence….
4. There is no indication whatsoever in the Act to show that the exercise of the power of striking out
of the defence under S. 15(7) was imperative whenever the tenant failed to deposit or pay any
amount as required by S. 15. The provisions contained in S. 15(7) of the Act are directory and not
mandatory. It cannot be disputed that S. 15(7) is a penal provision and gives to the Controller
discretionary power in the matter of striking out of the defence, and that in appropriate cases, the
Controller may refuse to visit upon the tenant the penalty of non-payment or non-deposit. The effect
of striking out of the defence under S. 15(7) is that the tenant is deprived of the protection given by
S. 14 and, therefore, the powers under S. 15(7) of the Act must be exercised with due
circumspection.”

4
Hereinafter also referred to as ‘the Delhi Rent Act’.
8
10.1.2. In the case of Smt. Kamla Devi (supra), the order for payment or depositing
the arrears of rent was made on 27.01.1984 and the payment/deposit was to be made
within one month. The tenant paid certain amount to the appellant but did not pay the
arrears. Earlier, the Rent Controller passed the order denying benefit to the tenant and
ordered eviction but the matter was remanded for consideration of the question of
condonation of delay in depositing the arrears. After remand, the Rent Controller held
that there was some compromise between the parties and in any case, delay in deposit
could not be termed as wilful, deliberate or contumacious and hence, condoned the
same. The order so passed was maintained by the Tribunal and the High Court. The
landlord then appealed to this Court. This Court referred to the scheme of the enactment
as also the decision in Miss Santosh Mehta (supra) and held that Section 15(7) of the
Delhi Rent Act gave discretion to the Rent Controller, who may or may not pass the order
striking out defence but, exercise of this discretion will depend upon the circumstances
of each case. This Court observed, inter alia, as under: -
“23. …… In our view, sub-section (7) of Section 15 of the Delhi Rent Control Act, 1958 gives a
discretion to the Rent Controller and does not contain a mandatory provision for striking out the
defence of the tenant against eviction. The Rent Controller may or may not pass an order striking
out the defence. The exercise of this discretion will depend upon the facts and circumstances of
each case. If the Rent Controller is of the view that in the facts of a particular case the time to make
payment or deposit pursuant to an order passed under sub-section (1) of Section 15 should be
extended, he may do so by passing a suitable order. Similarly, if he is not satisfied about the case
made out by the tenant, he may order the defence against eviction to be struck out. But, the power
to strike out the defence against eviction is discretionary and must not be mechanically exercised
without any application of mind to the facts of the case.”
10.2. In the case of Manik Lal Majumdar (supra), the question was slightly different and
was related to the maintainability of appeal in terms of Section 20 of Tripura Buildings
(Lease and Rent Control) Act, 1975 where, in view of the embargo put by Section 13 of
the said Act, the tenant was not entitled to prefer an appeal unless he had paid or
deposited all arrears of rent admitted by him to be due. This Court put a purposive
interpretation to the expression ‘prefer an appeal’ while observing that mere filing of
appeal was not prohibited but, the Appellate Authority may not proceed with the hearing
of appeal or pass an interim order in favour of the tenant until he had paid or deposited
the arrears of rent.
10.3. The case of Bimal Chand Jain (supra) directly related to the provisions of Order
XV Rule 5 CPC, as applicable to the present case. Therein, though the tenant had
deposited the arrears admitted to be due, but had failed to make regular deposits of
monthly rent and to submit representation in terms of sub-rule (2) of Rule 5 of Order XV.
Thus, the Trial Court proceeded to strike off the defence; and the High Court affirmed the
order of the Trial Court. In the said case, the High Court proceeded with reference to an
earlier decision of its Division Bench that in the given circumstances, the Court was
obliged to strike off defence. Such a construction of the said provisions by the High Court,
giving them mandatory character, was not approved by this Court and the matter was
remanded to the High Court for reconsideration with the following observations: -
“6. … Sub-rule (2) obliges the court, before making an order for striking off the defence to consider
any representation made by the defendant in that behalf. In other words, the defendant has been
vested with a statutory right to make a representation to the court against his defence being struck
9
off. If a representation is made the Court must consider it on its merits, and then decide whether the
defence should or should not be struck off. This is a right expressly vested in the defendant and
enables him to show by bringing material on the record that he has not been guilty of the default
alleged or if the default has occurred there is good reason for it. Now, it is not impossible that the
record may contain such material already. In that event, can it be said that sub-r. (1) obliges the
court to strike off the defence? We must remember that an order under sub-rule (1) striking off the
defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the
power is not to be exercised mechanically. There is a reserve of discretion vested in the court
entitling it not to strike off the defence if on the facts and circumstances already existing on the
record it finds good reason for not doing so. It will always be a matter for the judgment of the court
to decide whether on the material before it, notwithstanding the absence of a representation under
sub-rule (2), the defence should or should not be struck off. The word “may” in sub-rule (1) merely
vests power in the court to strike off the defence. It does not oblige it to do so in every case of
default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand
(1981 All LJ 82) (Supra). We are of opinion that the High Court has placed an unduly narrow
construction on the provisions of clause (1) of Rule 5 of Order XV.”
(emphasis supplied)
10.4. In Ladly Prasad (supra), the Division Bench of Allahabad High Court held as
follows: -
“8….In case the court after considering the representation made by the defendant comes to the
conclusion that the circumstances justify grant of further time on security being furnished for the
amount, the court will be competent to do so. It is not obligatory on the court to refuse to entertain
any defence or to strike off the defence in a case default is committed by the defendant in making
the requisite deposits…..”
10.5. In Kunwar Baldevji (supra), another Division Bench of the High Court observed
as under: -
“13. If amount of rent is admitted then it is not required to be adjudicated by the Court. In case,
tenant denies any rent to be due, Court shall be required to decide the same. It is obvious that in
such contingency Court will have to adjudicate and its finding will come subsequent to the ‘first date
of hearing’ contemplated under Order 15, Rule 5, Code of Civil Procedure. It is, therefore, evident
that by the time the Court will render its finding, ‘first date of hearing’ which is cut off date for
deposition of rent, shall be over. It also requires no comment that such an issue is first to be framed
and thereafter adjudicated after parties have led evidence in accordance with law.”
10.6. We have also noticed that in the case of Hisamul Islam Siddiqui and Anr. v.
Mohd. Javed Barki: 2016 (131) RD 135, as referred to in the impugned order, a learned
Single Judge of the same High Court had referred to the provisions of Order XV Rule 5
CPC as also Section 109 of the Transfer of Property Act, 1882; and after finding that the
purchaser became the landlord by operation of law upon transfer of property, the High
Court took note of the fact that the defendant had not denied the status as tenant by filing
written statement and had not deposited any rent. Hence, it was held that the Trial Court
had rightly struck off the defence.
11. The present suit has been filed by the plaintiff-appellant claiming her capacity as
the lessor after having purchased the suit property from its erstwhile owner. According to
the plaintiff, the defendant has been the lessee in the suit shop and his lease was
determined; and while alleging the rent to be due and having not been paid despite
demand, the plaintiff has filed this suit for eviction and recovery of arrears of rent and
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damages for use and occupation. Having regard to the plaint averments, the suit in
question is clearly the one to which the provisions of Order XV Rule 5 CPC are
applicable.
11.1. Though the aforesaid decisions in cases of Miss Santosh Mehta, Smt. Kamla
Devi and Manik Lal Majumdar related to the respective rent control legislations
applicable to the respective jurisdictions, which may not be of direct application to the
present case but and yet, the relevant propositions to be culled out for the present
purpose are that any such provision depriving the tenant of defence because of default
in payment of the due amount of rent/arrears have been construed liberally; and the
expression ‘may’ in regard to the power of the Court to strike out defence has been
construed as directory and not mandatory. In other words, the Courts have leaned in
favour of not assigning a mandatory character to such provisions of drastic consequence
and have held that a discretion is indeed reserved with the Court concerned whether to
penalise the tenant or not. However, and even while reserving such discretion, this Court
has recognised the use of such discretion against the defendant-tenant in case of wilful
failure or deliberate default or volitional non-performance. This Court has also explained
the principles in different expressions by observing that if the mood of defiance or gross
neglect is discerned, the tenant may forfeit his right to be heard in defence. The sum and
substance of the matter is that the power to strike off defence is considered to be
discretionary, which is to be exercised with circumspection but, relaxation is reserved for
a bonafide tenant like those in the cases of Miss Santosh Mehta and Smt. Kamla Devi
(supra) and not as a matter of course. The case of Bimal Chand Jain (supra) directly
related with Order XV Rule 5 CPC where the tenant had deposited the arrears admitted
to be due but, failed to make regular deposits of monthly rent and failed to submit
representation in terms of sub-rule (2) of Rule 5 of Order XV. The defence was struck off
in that matter with the Trial Court and the High Court taking the said provisions of Order
XV Rule 5 CPC as being mandatory in character. Such an approach was not approved
by this Court while indicating the reserve of discretion in not striking off defence if, on the
facts and circumstances existing on record, there be good reason for not doing so. The
common thread running through the aforesaid decisions of this Court is that the power
to strike off the defence is held to be a matter of discretion where, despite default,
defence may not be struck off, for some good and adequate reason.
11.2. The question of good and adequate reason for not striking off the defence despite
default would directly relate with such facts, factors and circumstances where full and
punctual compliance had not been made for any bonafide cause, as contradistinguished
from an approach of defiance or volitional/elective non-performance.
12. Reverting to the provisions under consideration, it is noticed that while the first part
of sub-rule (1) of Rule 5 of Order XV CPC requires deposit of the admitted due amount
of rent together with interest, the second part thereof mandates that whether or not the
tenant admits the amount to be due, he has to, throughout the continuation of the suit,
regularly deposit monthly amount due within a week from the date of its accrual. Read
as a whole, it is but clear that Order XV Rule 5 CPC embodies the fundamental principle
that there is no holidaying for a tenant in payment of rent or damages for use and
occupation, whether the lease is subsisting or it has been determined. The only basic
requirement in the suit of the nature envisaged by Order XV Rule 5 CPC is the character
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of defendant as being the lessee/tenant in the suit premises. Viewed from this angle, we
are not inclined to accept the line of thought in some of the decisions of the High Court
that in every case of denial of relationship of landlord and tenant, the defendant in suit
for eviction and recovery of rent/damages could enjoy holidays as regards payment of
rent.
12.1. For what has been discussed hereinabove, the decision of the High Court in Ladly
Prasad (supra) does not require much dilation when it remains indisputable that it is not
always obligatory on the Court to strike off the defence. However, the said decision
cannot be read to mean that despite default of the tenant in payment of rent, the defence
has to be permitted irrespective of its baselessness. The decision in Kunwar Baldevji
(supra), again, would have no application to the facts of the present case. Herein, the
defendant-respondent has not only omitted to deposit the rent on the first date of the
hearing but, has also omitted to deposit the accrued rent during the pendency of the suit.
13. In a suit of the present nature, where the defendant otherwise has not denied his
status as being the lessee, it was rather imperative for him to have scrupulously complied
with the requirements of law and to have deposited the arrears of rent due together with
interest on or before the first date of hearing and in any case, as per the second part of
sub-rule (1) of Rule 5 of Order XV CPC, he was under the specific obligation to make
regular deposit of the monthly amount due, whether he was admitting any such dues or
not.
14. In the context of the proposition of denial of title of the plaintiff and denial of
relationship of landlord and tenant between the plaintiff and defendant, we may also
observe that such a denial simpliciter does not and cannot absolve the lessee/tenant to
deposit the due amount of rent/damages for use and occupation, unless he could show
having made such payment in a lawful and bonafide manner. Of course, the question of
bonafide is a question of fact, to be determined in every case with reference to its facts
but, it cannot be laid down as a general proposition that by merely denying the title of
plaintiff or relationship of landlordtenant/lessor-lessee, a defendant of the suit of the
present nature could enjoy the property during the pendency of the suit without depositing
the amount of rent/damages.
15. Taking the facts of the present case, it is at once clear that the defendant-
respondent, by his assertions and conduct, has left nothing to doubt that he has been
steadfast in not making payment of rent/damages, despite being lessee of the suit shop.
The present one has clearly been the case of volitional non-performance with nothing left
to guess about the defendant’s mood of defiance. Nothing of any fact or any
circumstance is existing on record to find even a remote reason for extending any latitude
or relaxation in operation of Order XV Rule 5 CPC to the present case. It shall be apposite
at this juncture to also observe that the contentions on behalf of the defendant-
respondent to the effect that he had made payment of rent to the alleged erstwhile
landlord Smt. Sudha Sharma and contra submissions on behalf of the appellant that even
in the year 1990, the defendant-respondent admitted the said Shri Rajiv Kant Sharma as
the owner of the property as also the factors co-related with these submissions, do not
call for adjudication in this appeal. This is for two simple reasons: One, that so far as the
fact of volitional non-performance by the defendant-respondent is concerned, with no
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cogent evidence of lawful payment of rent, the findings of fact by the Trial Court and the
Revisional Court against the defendant-respondent stand final and have not been
disturbed even by the High Court. There appears no reason for this Court to enter into
any factual inquiry as regards payment of rent to Smt. Sudha Sharma or otherwise, now
in this appeal. Secondly, so far as any affidavit filed by the defendant-respondent in the
year 1990, allegedly admitting Shri Rajiv Kant Sharma as owner of property is concerned,
it may be a matter of adjudication by the Trial Court but would not be a matter of
consideration in this appeal. Suffice it to observe that the present one is a case very near
and akin to that of Hisamul Islam Siddiqui (supra) wherein, the learned Single Judge
of the same High Court has approved the order striking off the defence after finding want
of deposit of the amount of rent, despite the defendant having not denied his status as
tenant.
16. In the totality of facts and circumstances, we are clearly of the view that there was
absolutely no reason for the High Court to have interfered in the present case, where the
Trial Court had struck off the defence after finding that there was no evidence on record
to show the payment or deposit of rent in favour of the plaintiff by the
defendantrespondent. The Revisional Court had also approved the order of the Trial
Court on relevant considerations. Even the High Court did not find the pleas taken by the
defendant-respondent to be of bonafide character, particularly when survey number of
the shop let out to him was clearly stated in the sale deed executed in favour of the
plaintiff. We find it rather intriguing that, despite having not found any cogent reason for
which discretion under Rule 5 of Order XV CPC could have been exercised in favour of
the defendant-respondent, the High Court, in the last line of paragraph 45 of the order
impugned, abruptly stated its conclusion that: ‘yet the defendant/tenant deserves some
indulgence’.
17. With respect, the said conclusion of the High Court could only be said to be an
assumptive one, being not supported by any reason. In paragraph 44, of course, the High
Court observed with reference to the decisions of this Court that the discretionary power
must be exercised with great circumspection but, such enunciation by this Court cannot
be read to mean that whatever may be the fault and want of bonafide in the
defendant/tenant, he would be readily given the so-called ‘indulgence’ of not striking off
defence. Such an approach is neither envisaged by the statutory provisions nor by the
referred decisions. In fact, such an approach would simply render the relevant provisions
of law rather nugatory. The expected circumspection would require the Court to be
cautious of all the relevant facts and the material on record and not to strike off the
defence as a matter of routine. However, when a case of the present nature is before the
Court, disclosing deliberate defiance and volitional/elective non-performance, the
consequence of law remains inevitable, that the defence of such a defendant would be
struck off.
18. For what has been discussed hereinabove, the impugned order as passed by the
High Court cannot be approved and is required to be set aside.
19. The submissions made on behalf of the defendant-respondent that he had
deposited the due rent from 10.05.2010 to 10.11.2018 and he has been further making
regular deposits do not take his case any further. The defendant-respondent has made
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such deposits only pursuant to the order of the High Court. The said order, being not in
conformity with the law applicable and with the record of this case, is required to be set
aside. In any event, any deposit made under or pursuant to the said order cannot wipe
out the default already committed by the defendantrespondent. On the contrary, with
setting aside of the said order of the High Court, the order of the Trial Court shall stand
revived. Simply put, the deposits belatedly made, pursuant only to the unsustainable
order of the High Court, do not enure to the benefit of the defendant-respondent.
20. Before concluding on this matter, a few peripheral aspects may also be indicated.
The petition seeking special leave to appeal in the present case was entertained on
28.01.2019 when this Court, while issuing notice, stayed the operation and
implementation of the impugned order of the High Court. Obviously, the impugned order
dated 02.11.2018 as passed by the High Court stood eclipsed under and by virtue of the
stay order of this Court. Consequently, the suit was required to proceed with the order of
the Trial Court dated 01.03.2017 striking off the defence of the defendant continuing in
operation. The facts have been placed before us to the effect that the plaintiff sought
expeditious disposal of the suit and in that regard, also filed a petition bearing No. 2810
of 2020 before the High Court, which was disposed of on 29.09.2020 with directions to
the Trial Court to decide the said suit expeditiously and preferably within two years from
the date of production of the copy of the order without granting any unnecessary
adjournment to either of the parties. Thereafter, the Trial Court considered and granted
an application moved by the plaintiff to amend the plaint, so as to seek eviction of the
defendant on the ground of denial of title. The said amendment was allowed on
18.02.2021. As per the material placed on record, the additional written statement as
filed by the defendant was taken on record on 21.04.2022 and the matter was placed for
plaintiff’s evidence.
21. Having taken note of the subsequent events after passing of the impugned order
by the High Court, suffice it to say that with the impugned order of the High Court being
set aside and that of the Trial Court dated 01.03.2017 being restored by this judgment, it
would be expected of the Trial Court to take note of the fact that the suit filed way back
in the year 2011 has remained pending yet and is required to be assigned a reasonable
priority for expeditious disposal. The order passed by the High Court on 29.09.2020 is
also to be kept in view by the Trial Court.
22. Accordingly, and in view of the above, this appeal succeeds and is allowed; the
impugned order dated 02.11.2018 is set aside with the result that the order dated
01.03.2017 passed by the Trial Court stands restored. The Trial Court shall be expected
to proceed with the matter while keeping in view the observations foregoing.
23. Having regard to the circumstances of the case, there shall be no order as to costs
of this appeal.

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