Holding

The Supreme Court held that where a tenant willfully fails to deposit the admitted rent without a bonafide reason, the court must exercise its discretionary power under Order XV Rule 5 to strike off the defence, and the High Court’s indulgence was unlawful.

Summary

Asha Rani Gupta, the plaintiff‑lessor, filed an eviction suit against Sri Vineet Kumar, the defendant‑lessee, for non‑payment of rent and damages. The trial court struck off the defendant’s defence under Order XV Rule 5 of the CPC for failing to deposit the admitted rent, a decision affirmed by the revisional court. The Allahabad High Court set aside that order, granting the defendant ‘some indulgence’ and directing him to make deposits. On appeal, the Supreme Court examined the statutory scheme, emphasizing that the power to strike off a defence is discretionary, to be exercised with circumspection, and not to be waived where the tenant’s default is volitional and no bonafide reason is shown. Finding the defendant’s conduct to be a deliberate refusal to pay, the Court restored the trial court’s order and set aside the High Court’s indulgence. The appeal was allowed and no costs were awarded.

Issues considered

Whether the High Court was correct in overturning the trial court's order striking off the defence under Order XV Rule 5 of the CPC.
Whether the discretion conferred by Order XV Rule 5 may be exercised to grant indulgence to a tenant who has willfully defaulted on rent.
Whether a denial of the landlord‑tenant relationship absolves the tenant from the deposit obligations under Order XV Rule 5.
Whether the term ‘may’ in Order XV Rule 5 renders the power to strike off defence mandatory or discretionary.

Legislation cited

Code of Civil Procedure, 1908s. Order XV Rule 5
Delhi Rent Control Act, 1958s. Section 15(7)
Transfer of Property Act, 1882s. Section 106, s. Section 109
Tripura Buildings (Lease and Rent Control) Act, 1975s. Section 13
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972s. Section 30

Subjects

evictionrent arrearsOrder XV Rule 5striking off defencelandlord‑tenant disputediscretionary powercivil procedurelease determinationvolitional non‑performance

Judgment

402 [2022]REPORTS
SUPREME COURT 15 S.C.R. 402 [2022] 15 S.C.R.

A ASHA RANI GUPTA
v.
SRI VINEET KUMAR
(Civil Appeal No. 4682 of 2022)
B JULY 11, 2022
[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
Code of Civil Procedure, 1908: Ord. XV r.5(as applicable in
the State of U.P.) – Striking off defence for failure to deposit the
admitted rent – Eviction suit by appellant-lessor against the
C
respondent-lessee on grounds of arrear of rents and damages–
Failure of respondent to pay or deposit the due rent – Application
u/Ord. XV r.5 for striking off the defence – Allowed by the trial
court holding that there was no evidence of payment of rent to the
appellant and even if the tenant-landlord relationship is denied,
D then also application u/Ord. XV r.5 was maintainable – Approved
by the revisional court, however, set aside by the High Court holding
that respondent was entitled to ‘some indulgence’ – On appeal,
held:As per the provision, the defendant is under an obligation to
deposit the entire amount admitted by him to be due along with the
interest on or before the first hearing and to regularly deposit the
E
monthly amount due within a week of its accrual throughout the
pendency of the suit – Consequence of default in making either of
these deposit is that the court may strike of his defence – However,
court should consider the representation of the defendant if made
within 10 days of the first hearing –Such provision has to be been
F 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 – 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 – On facts, the
respondent has not denied his status as being the lessee and it has
G
clearly been the case of volitional non-performance with nothing
left to guess about the defendant’s mood of defiance – No facts or
any circumstance is existing on record to find even a remote reason
for extending any latitude or relaxation in operation of Ord. XV r. 5
– Conclusion of the High Court could only be said to be an
H assumptive one, being not supported by any reason – Furthermore,
402
ASHA RANI GUPTA v. SRI VINEET KUMAR 403

the deposits made belatedly, pursuant to the unsustainable order of A
the High Court, would not enure benefit to the respondent – Thus,
the order of the High Court is set aside.
Allowing the appeal, the Court
HELD: 1.1 A few basic factors related with the provisions
of Order XV Rule 5 CPC are that in a suit by a lessor for eviction B
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: 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 to regularly deposit C
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 D
expression ‘monthly amount due’ means the amount due every
month, whether asrent 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 E
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][418-D-G]
1.2 The present suit has been filed by the plaintiff-appellant F
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 damages for use and G
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. [Para 11][423-D-E]

H
404 SUPREME COURT REPORTS [2022] 15 S.C.R.

A 1.3 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
B
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
C failure or deliberate default or volitional non-performance. 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 and not as a matter
D
of course. 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. [Para 11.1][423-
F-H; 424-A-B, D]
1.4 The question of good and adequate reason for not
E 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. [Para 11.2][424-E-F]
F 1.5 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
G 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
H
ASHA RANI GUPTA v. SRI VINEET KUMAR 405

only basic requirement in the suit of the nature envisaged by A
Order XV Rule 5 CPC is the character of defendant as being the
lessee/tenant in the suit premises. Viewed from this angle, it
cannot be said 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.
B
[Para 12][424-F-H; 425-A-B]
1.6 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 C
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. [Para 13][425-D]
1.7 In the context of the proposition of denial of title of the D
plaintiff and denial of relationship of landlord and tenant between
the plaintiff and defendant, 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, E
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 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/ F
damages. [Para 14][425-F-H]
1.8 On facts, 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 G
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

H
406 SUPREME COURT REPORTS [2022] 15 S.C.R.

A 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
and contra submissions on behalf of the appellant that even in
B
the year 1990, the defendant-respondent admitted the RK 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
C 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 the erstwhile
owner or otherwise, now in this appeal. Secondly, so far as any
D
affidavit filed by the defendant-respondent in the year 1990,
allegedly admitting RK 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. [Para 15][426-A-E]
1.9 In the totality of facts and circumstances, there was
E 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
defendant- respondent. The Revisional Court had also approved
F 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. It is rather find intriguing
that, despite having not found any cogent reason for which
G 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 of the order impugned, abruptly stated
its conclusion that: ‘yet the defendant/tenant deserves some
indulgence’.With respect, the said conclusion of the High Court
H
ASHA RANI GUPTA v. SRI VINEET KUMAR 407

could only be said to be an assumptive one, being not supported A
by any reason. In previous paragraph, 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/
B
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 C
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.The impugned
D
order as passed by the High Court cannot be approved and is
required to be set aside. [Para 16-18][426-G-H; 427-A-F]
1.10 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 E
made 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 defendant- F
respondent. 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. [Para 19][427-G-H; 428-A]
G
1.11 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

H
408 SUPREME COURT REPORTS [2022] 15 S.C.R.

A 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
B
court.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. [Para 21-22][428-F-H; 429-A]
Bimal Chand Jain v. Sri Gopal Agarwal 1981 (3) SCC
486 : [1982] (1) SCR 124; Manik Lal Majumdar and
C Ors. v. Gouranga Chandra Dey and Ors. AIR 2005
SC 1090 : [2005] (1) SCR 437; Ladly Prasad v. Ram
Shah Billa and Ors. (1976) 2 ALR 8; Kunwar Baldevji
v. The XI Additional District Judge, Bulandshahar and
Ors. (2003) 1 ARC 637; Miss Santosh Mehta v. Om
D Prakash and Ors. (1980) 3 SCC 610 : [1980] 3 SCR
325; Smt. Kamla Devi v. Vasdev (1995) 1 SCC 356 :
[1994] 6 Suppl. SCR 603; Hisamul Islam Siddiqui and
Anr. v. Mohd. Javed Barki 2016 (131) RD 135 –
referred to.
E Case Law Reference
[1982] (1) SCR 124 referred to Para 7.1
[2005] (1) SCR 437 referred to Para 7.1
[1980] 3 SCR 325 referred to Para 10.1
F [1994] 6 Suppl. SCR 603 referred to Para 10.1
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4682
of 2022.
From the Judgment and Order dated 02.11.2018 of the High Court
of Judicature at Allahabad in Matters Under Article 227 No.2419 of
G 2018.
Dinesh K. Garg, Dhananjay Garg, Abhishek Garg, N. Suresha,
Advs. for the Appellant.
Praveen Jain, Adv. for the Respondent.
H
ASHA RANI GUPTA v. SRI VINEET KUMAR 409

The Judgment of the Court was delivered by A
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
B
the plaintiff-appellant against the defendant-respondent1, 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 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. C
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 D
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 E
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 F
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.

1
Hereinafter, the parties have also been referred to as ‘the plaintiff’ or as ‘the defendant’, G
as per their status in the suit.
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. H
410 SUPREME COURT REPORTS [2022] 15 S.C.R.

A 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
B
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
C 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
D 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
E 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.
F
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.”
4.3. In his written statement, the defendant-respondent has, in
essence, denied the relationship of landlord and tenant between the
G
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
H Abhishek Gupta (son of the present plaintiff) and particularly, the
ASHA RANI GUPTA v. SRI VINEET KUMAR 411
[DINESH MAHESHWARI, J.]

boundaries on the northern side of the said property. In other words, the A
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
B
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 C
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. D
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
E
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
F
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 G
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
H
412 SUPREME COURT REPORTS [2022] 15 S.C.R.

A 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
B 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: -
“No such evidence has been filed on the record by the defendant
C 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
D 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
E 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
F 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 defendant-
respondent in S.C.C. Revision No. 11 of 2017, which was duly considered
G 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
H has averred that she is the owner of the shop in suit on the basis
ASHA RANI GUPTA v. SRI VINEET KUMAR 413
[DINESH MAHESHWARI, J.]

of the sale deed. This fact is undisputed that the revisionist did not A
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
B
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 C
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 D
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 E
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 F
out to the defendant-respondent but, opined that the defendant-respondent
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 current rent as determined by the Trial Court, G
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 H
414 SUPREME COURT REPORTS [2022] 15 S.C.R.

A 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
B 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.
C
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
D 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
E 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
F 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
G 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.”
H (emphasis supplied)
ASHA RANI GUPTA v. SRI VINEET KUMAR 415
[DINESH MAHESHWARI, J.]

6. Assailing the order so passed by the High Court, learned counsel A
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
B
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 C
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 D
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 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 E
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.
F
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 plaintiff-
appellant had purchased under the registered sale deed dated 10.05.2010.
G
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
H
416 SUPREME COURT REPORTS [2022] 15 S.C.R.

A (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
B
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.
C 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
D 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 defendant-respondent cannot be
faulted in raising objection and in not making deposit of rent in the present
E 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
F 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
G 637.
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.
H
ASHA RANI GUPTA v. SRI VINEET KUMAR 417
[DINESH MAHESHWARI, J.]

8. We have given thoughtful consideration to the rival submissions A
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: - B
“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
C
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 D
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 E
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
F
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. G
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. H
418 SUPREME COURT REPORTS [2022] 15 S.C.R.

A (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.
B (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:
C
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.”

D 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
E
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
F 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
G
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.
H
ASHA RANI GUPTA v. SRI VINEET KUMAR 419
[DINESH MAHESHWARI, J.]

10.1. The High Court has primarily based its decision on the cases A
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 B
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 C
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 D
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-in-self-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 E
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 F
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…. G
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

4
Hereinafter also referred to as ‘the Delhi Rent Act’. H
420 SUPREME COURT REPORTS [2022] 15 S.C.R.

A 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
B
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.”
10.1.2. In the case of Smt. Kamla Devi (supra), the order for
C 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
D 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
E 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: -
F “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
G 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
H
ASHA RANI GUPTA v. SRI VINEET KUMAR 421
[DINESH MAHESHWARI, J.]

order the defence against eviction to be struck out. But, the power A
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 B
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 C
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 D
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 E
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: - F

“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 off. If a representation is G
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 H
422 SUPREME COURT REPORTS [2022] 15 S.C.R.

A 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.
B
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
C 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 PuranChand (1981
All LJ 82) (Supra). We are of opinion that the High Court has
D
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
E 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
F 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: -
G “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,
H
ASHA RANI GUPTA v. SRI VINEET KUMAR 423
[DINESH MAHESHWARI, J.]

evident that by the time the Court will render its finding, ‘first date A
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 B
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 C
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 D
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 damages for use and occupation. Having regard to the plaint E
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 F
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 G
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 H
424 SUPREME COURT REPORTS [2022] 15 S.C.R.

A 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
B
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
C 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
D 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.
E
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.
F
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,
G
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
H
ASHA RANI GUPTA v. SRI VINEET KUMAR 425
[DINESH MAHESHWARI, J.]

in the suit of the nature envisaged by Order XV Rule 5 CPC is the A
character 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
B
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 C
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. D

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- E
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
F
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 G
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 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.
H
426 SUPREME COURT REPORTS [2022] 15 S.C.R.

A 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
B
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
C 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-
D performance by the defendant-respondent is concerned, with no 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.
E 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
F 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
G 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 defendant-
respondent. The Revisional Court had also approved the order of the
Trial Court on relevant considerations. Even the High Court did not find
H
ASHA RANI GUPTA v. SRI VINEET KUMAR 427
[DINESH MAHESHWARI, J.]

the pleas taken by the defendant-respondent to be of bonafide character, A
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
B
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 C
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 D
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, E
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 F
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 such deposits only G
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 defendant-respondent. On the contrary, with setting aside of
H
428 SUPREME COURT REPORTS [2022] 15 S.C.R.

A 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
B 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
C 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
D 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
E 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.

F 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
G 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
H
ASHA RANI GUPTA v. SRI VINEET KUMAR 429
[DINESH MAHESHWARI, J.]

the result that the order dated 01.03.2017 passed by the Trial Court A
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.
B

Nidhi Jain Appeal allowed.
(Assisted by : Shashwat Jain, LCRA)

C

D

E

F

G

H