Dharmendra Kalra & Orsv.Kulvinder Singh Bhatia

Citation:: 2026 INSC 492
Date:: 15 May 2026
Reading time:: 10 min read

Legal Analysis: Dharmendra Kalra & Ors v. Kulvinder Singh Bhatia

Citation: 2026 INSC 492
Court: Supreme Court of India
Bench: A Division Bench comprising Justice Prasanna B. Varale and Justice S.V.N. Bhatti
Date of Decision: May 15, 2026
Nature of Case: Civil Appeal arising out of Special Leave Petition (Civil) No. 7116 of 2025

Synopsis

The Supreme Court set aside the orders of the Allahabad High Court which had granted extension of time to a tenant to deposit rent despite earlier default, and also set aside the Trial Court’s order striking off the defence under Order XV Rule 5 of the Code of Civil Procedure, 1908 (CPC). The Court remanded the matter to the Trial Court for fresh consideration. The core issue was whether the Trial Court had mechanically struck off the defence without determining the “first date of hearing” and whether the High Court had properly exercised its discretion in granting successive extensions. The Supreme Court held that striking off defence is a drastic penal consequence; the power under Order XV Rule 5 CPC, though mandatory in form, vests a judicial discretion which must be exercised after considering the representation of the tenant and determining the first date of hearing. Procedural laws are the handmaid of justice and must not be applied mechanically.

1. Basic Information of the Judgment

Case Title: Dharmendra Kalra & Ors v. Kulvinder Singh Bhatia
Citation: 2026 INSC 492
Civil Appeal No.: Arising out of SLP (C) No. 7116 of 2025
Bench: Division Bench (Justice Prasanna B. Varale and Justice S.V.N. Bhatti)
Date of Decision: May 15, 2026
Court: Supreme Court of India (Civil Appellate Jurisdiction)
Impugned Orders: Order dated 10.12.2024 and order dated 07.02.2025 passed by the Allahabad High Court in S.C.C. Revision No. 114 of 2023 and C.M.A. No. 6 of 2025

2. Legal Framework

Major Laws and Provisions Involved

Code of Civil Procedure, 1908 (CPC) – Order XV Rule 5 (striking off defence for non-deposit of rent), Order IX Rule 7 (recall of ex parte proceedings), Order VII Rule 11 (rejection of plaint), Order VIII Rule 1 (written statement), Order XIV Rule 3 (framing of issues).
Transfer of Property Act, 1882 – Section 106 (termination of tenancy).
Provincial Small Cause Courts Act, 1887 – Section 15 (jurisdiction).
Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021 (U.P. Act No. 16 of 2021) – Plea of bar to suit, though not finally decided.

Key Precedents Cited and Applied

Bimal Chand Jain v. Sri Gopal Agarwal – Held that Order XV Rule 5(1) uses the word “may”, not “shall”; the court has a reserve of discretion and is not obliged to strike off defence in every case of default. The defendant has a statutory right to make a representation under sub-rule (2).
Santosh Mehta v. Om Prakash – Held that striking off defence is an extreme, drastic power meant for grossly recalcitrant situations where the tenant is guilty of wilful disregard. A judicial discretion is vested; the power is facultative, not mandatory. The last resort cannot be converted into the first resort.
Siraj Ahmad Siddiqui v. Prem Nath Kapoor – Defined “first date of hearing” as the date on which the court proposes to apply its mind to determine the points in controversy between the parties and to frame issues, not any earlier date fixed for procedural purposes.
Kailash v. Nanhku – Held that procedural law is the handmaid of justice and is meant to advance its cause, not to thwart it. The use of the word “shall” is not conclusive to determine mandatory or directory nature; the context and intention of the legislature must be examined.

3. Relevant Facts

The appellants (landlords) are the successors-in-interest of the original owners who purchased the suit premises in Kanpur Nagar through a registered sale deed.
The respondent (tenant) occupied two halls on the ground floor, running a hotel named ‘Gyan Vaisnav Hotel’. The monthly rent was revised to Rs. 25,000/- per month from September 2020. The tenant paid rent for September and October 2020 but stopped thereafter.
The landlords sent a legal notice under Section 106 of the Transfer of Property Act on 12.07.2021 demanding arrears of rent from November 2020 to June 2021 (Rs. 2,00,000/-).
The landlords filed S.C.C. Suit No. 52 of 2021 before the Judge, Small Causes Court, Kanpur Nagar, seeking eviction and recovery of arrears.
The tenant initially failed to appear; ex parte proceedings were ordered on 08.03.2022. The tenant later appeared and sought recall, which was granted on 10.11.2022 subject to cost.
The landlords filed an application under Order XV Rule 5 CPC to strike off the defence for non-deposit of arrears on the first date of hearing. The tenant filed objections and a delayed application to deposit rent.
The Trial Court allowed the application under Order XV Rule 5 CPC on 05.08.2023 and struck off the defence.
The tenant filed a revision before the Allahabad High Court. The High Court, by order dated 10.12.2024, allowed the revision on the condition that the tenant deposit monthly rent of Rs. 1,500/- (a drastically reduced amount) on or before 31.12.2024, failing which the defence would stand struck off.
The tenant failed to deposit by 31.12.2024 and filed an application for extension of time. The High Court, by order dated 07.02.2025, extended the time despite the earlier conditional order.
Aggrieved, the landlords filed the present appeal before the Supreme Court.

4. Issues Before the Supreme Court

Issue No. 1: Whether the Trial Court was justified in striking off the defence under Order XV Rule 5 CPC without determining the “first date of hearing” and without properly examining the tenant’s representation.
Issue No. 2: Whether the High Court erred in granting extension of time to deposit rent despite its own earlier order which had expressly provided that failure to deposit would result in striking off the defence without any further liberty.
Issue No. 3: Whether the discretion under Order XV Rule 5 CPC is absolute or is to be exercised judicially, considering the conduct of the tenant and the statutory scheme.
Issue No. 4: Whether the matter should be remanded for fresh consideration or decided on merits by the Supreme Court.

5. Ratio Decidendi

A. Striking off defence under Order XV Rule 5 CPC is discretionary, not automatic.
The Division Bench, relying on Bimal Chand Jain and Santosh Mehta, held that the word “may” in Order XV Rule 5(1) vests a judicial discretion in the court. The provision, though mandatory in form, is not intended to be applied mechanically. Striking off the defence is a drastic, penal consequence and should be resorted to only in cases of deliberate default, wilful disregard, or contumacious conduct. The tenant has a statutory right under sub-rule (2) to make a representation, which the court must consider. (Paras 15-17)

B. The “first date of hearing” must be properly determined.
Following Siraj Ahmad Siddiqui, the Court held that the “first date of hearing” is not any date fixed for procedural purposes (e.g., service of summons or filing of written statement). It is the date on which the court proposes to apply its mind to the controversy between the parties, typically at the stage of framing of issues. Without a clear determination of this date, the foundation for invoking Order XV Rule 5 CPC becomes uncertain. The Trial Court had failed to determine this date conclusively. (Paras 18-20)

C. Procedural law is the handmaid of justice.
Relying on Kailash v. Nanhku, the Court reiterated that rules of procedure are meant to advance justice, not to defeat it. A strict interpretation that leads to miscarriage of justice must be avoided. While the conduct of the tenant in not adhering to timelines cannot be overlooked, the court must balance the need for compliance with the interests of justice. (Para 22)

D. Both the Trial Court and the High Court erred in their approaches.
The Trial Court proceeded in a somewhat mechanical manner in striking off the defence without adequate examination of foundational aspects. The High Court, while granting extension, did not sufficiently reconcile its earlier conditional order with the subsequent indulgence granted. Neither court comprehensively addressed all relevant aspects in their proper perspective. (Paras 23-24)

E. Remand is the appropriate remedy.
Since the controversy required fresh consideration of the application under Order XV Rule 5 CPC, and this Court had not expressed any opinion on the merits, the matter was remanded to the Trial Court. The Trial Court was directed to: (i) determine the first date of hearing; (ii) examine whether there has been due compliance or substantial compliance with Order XV Rule 5; (iii) consider whether the default was wilful or bona fide; and (iv) pass a reasoned order after affording adequate opportunity to both parties. (Paras 25-27)

6. New Legal Principles Established / Reiterated

First, the discretionary nature of Order XV Rule 5 CPC is reaffirmed. The provision does not mandate automatic striking off of defence upon default; the court must consider the tenant’s representation and the circumstances of the case.
Second, the “first date of hearing” must be identified with precision. It is the date when the court applies its mind to the controversy and frames issues, not a mere procedural date.
Third, successive extensions of time to deposit rent, despite a conditional order stipulating no further extension, are not per se illegal but must be justified by cogent reasons. The High Court’s discretion must be exercised judicially and not in a manner that undermines its own conditional orders.
Fourth, procedural laws are not to be interpreted strictly to defeat substantive justice. The handmaid of justice metaphor applies even in the context of rent deposit provisions.

7. Court’s Examination and Analysis of Concepts

The Division Bench examined the scheme of Order XV Rule 5 CPC. It noted that sub-rule (1) obliges the tenant to deposit admitted arrears at or before the first hearing and to continue depositing monthly rent. Upon default, the court “may” strike off the defence. Sub-rule (2) gives the tenant a right to make a representation. The Court interpreted that the word “may” confers a power, not an obligation. The power is to be exercised judicially, considering whether the default was wilful or bona fide.

The Court then analysed the concept of “first date of hearing”. It rejected the notion that any date fixed in the summons is the first hearing. Instead, adopting the reasoning in Siraj Ahmad Siddiqui, the Court held that the date of first hearing is when the court takes up the case for determining the points in controversy, i.e., framing of issues. This is a significant safeguard for tenants, as it prevents the court from striking off the defence before the tenant has had a fair opportunity to present his case.

The Court also considered the conduct of the tenant. While the tenant had defaulted repeatedly, the High Court had granted extension on the ground of bona fide reasons (counsel being abroad). The Supreme Court found that both the Trial Court and the High Court had not properly balanced the competing considerations. The Trial Court was too mechanical; the High Court was too indulgent without reconciling its earlier conditional order. The appropriate course was to remand for fresh determination.

8. Critical Analysis

Strengths: The judgment correctly emphasises that striking off defence is a drastic penal measure, not to be used routinely. By requiring the determination of the “first date of hearing”, the Court ensures that tenants are not unfairly penalised before the case has even been listed for hearing on merits. The reliance on Bimal Chand Jain and Santosh Mehta is appropriate and reaffirms the settled position. The remand order gives both parties an opportunity to present their cases properly before the Trial Court.

Potential concerns: The Court did not finally decide whether the tenant’s default was wilful or bona fide, leaving it to the Trial Court. This will prolong the litigation. Also, the High Court had drastically reduced the monthly rent from Rs. 25,000/- to Rs. 1,500/- without any apparent justification. The Supreme Court did not comment on this reduction, which may be seen as an undue indulgence to the tenant. However, since the matter was remanded, the Trial Court can now reconsider the quantum of rent to be deposited.

Practical impact: This judgment will be cited in all cases where a tenant’s defence is sought to be struck off under Order XV Rule 5 CPC. It reinforces that the court must first determine the first date of hearing, give the tenant an opportunity to make a representation, and then exercise discretion judicially. It also clarifies that procedural defaults are not always fatal if the tenant shows bona fides. Landlords will need to be more diligent in establishing that the default was wilful and contumacious.

9. Final Outcome

The impugned orders of the Allahabad High Court dated 10.12.2024 and 07.02.2025 were set aside.
The matter was remanded to the Trial Court (Judge, Small Causes Court/ Additional District Judge, Kanpur Nagar) for fresh consideration of the application under Order XV Rule 5 CPC.
The Trial Court was directed to:
Determine the “first date of hearing” in accordance with law;
Examine whether there has been due compliance or substantial compliance with Order XV Rule 5 CPC;
Consider whether the default, if any, was wilful or bona fide;
Pass a reasoned order after affording adequate opportunity to both parties.
The Trial Court was requested to dispose of the matter expeditiously, preferably within six months.
All issues were left open; the Supreme Court expressed no opinion on the merits.
The appeal was disposed of accordingly.

10. Practical Application (Use in Court)

First, a tenant facing an application under Order XV Rule 5 CPC can cite this judgment to argue that the court must first determine the “first date of hearing” as the date of framing of issues, not any earlier procedural date. The tenant can also rely on the discretionary nature of the provision and seek an opportunity to make a representation before defence is struck off.

Second, a landlord seeking to strike off the defence must demonstrate that the default was wilful and contumacious, not merely a bona fide delay. The landlord should ensure that the Trial Court has clearly recorded the first date of hearing and the tenant’s representation before seeking the penal order.

Third, in revision or appeal against an order striking off defence or granting extension, parties can cite this judgment to argue that procedural laws are the handmaid of justice and that courts must balance strict compliance with substantive fairness.

11. Court Lines

Line 1 (Discretionary power under Order XV Rule 5 – Para 16, quoting Bimal Chand Jain):
“The word ‘may’ in sub-rule (1) merely vested power in the court to strike off the defence. It does not oblige it to do so in every case of default. … 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.”

Line 2 (Striking off defence is a drastic measure – Para 17, quoting Santosh Mehta):
“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. … The last resort cannot be converted into the first resort.”

Line 3 (First date of hearing – Para 19, quoting Siraj Ahmad Siddiqui):
“The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit.”

Line 4 (Procedural law is handmaid of justice – Para 22, quoting Kailash v. Nanhku):
“The rules of procedure are made to advance the cause of justice and not to defeat it. … The rules of procedure are the handmaid of justice and not its mistress.”

12. Legal Strategy Insight

For a tenant: If an application under Order XV Rule 5 CPC is filed against you, immediately file a representation under sub-rule (2) explaining the reasons for default (e.g., financial difficulty, bona fide dispute, absence of counsel). Argue that the “first date of hearing” has not yet occurred – typically the date of framing of issues. Cite paragraphs 16 and 19 of this judgment to emphasise that the court has discretion and must determine the first hearing date before striking off the defence. If the default is minimal and bona fide, seek condonation and permission to deposit arrears with interest.

For a landlord: Before moving an application under Order XV Rule 5, ensure that the “first date of hearing” is clearly recorded in the court’s orders. Document every instance of default and any wilful conduct (e.g., deliberate avoidance of summons, repeated non-payment despite demands). In the application, specifically allege that the default is contumacious and not bona fide. If the tenant seeks extension of time, oppose it vigorously by citing the conditional order and the tenant’s conduct. If the High Court or Trial Court grants undue indulgence, challenge the order by relying on the principle that discretion must be exercised judicially and not in a manner that nullifies earlier conditional orders.

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