While remanding an eviction suit to the Trial Court, the Supreme Court has held that the “first date of hearing” is the date on which the Court applies its mind to the case, ordinarily at the stage of framing of issues or consideration of pleadings and in the absence of determination of such a date, the very foundation for invoking Order XV Rule 5 CPC becomes uncertain.

The Apex Court was considering a special leave petition filed under Article 136 of the Constitution against the impugned judgment of the Allahabad High Court allowing the revision petition of the tenant.

The Division Bench of Justice S.V.N. Bhatti and Justice Prasanna B. Varale stated, “The expression ‘first date of hearing’ has to be understood as the date when the Court proposes to apply its mind to the controversy involved in the suit and not any earlier date fixed for procedural purposes.”

“In the absence of a clear determination of such a date, the very foundation for invoking Order XV Rule 5 CPC becomes uncertain”, it added.

Senior Advocate R. Nedumaran represented the Appellant while M/S MPS Legal represented the Respodent.

Factual Background

The fathers of the Appellants purchased the suit premises from the erstwhile owner through a registered sale deed. The respondents occupied two halls on the ground as a tenant at the aforesaid premises at an agreed rent which was revised from time to time. The respondent/tenant failed to make the payment of rent from November 2020 to June 2021 amounting to Rs 2,00,000. The Appellants/landlords sent a legal notice terminating the tenancy prescribing 30 days’ time to the respondent/tenant to pay the arrears of rent as per Section 106 of the Transfer of Property Act (TPA). Thereafter, the Appellants/original plaintiffs filed a suit seeking a decree of eviction and a decree of recovery of arrears of rental against the defendant/respondent. The Small Causes Court ordered ex-parte proceedings against the respondent/defendant.

Being aggrieved, the respondent/defendant appeared before the Trial Court and moved an application under Order IX Rule 7 of CPC for recall of ex-parte proceedings, which came to be allowed. The Appellants/plaintiffs preferred an application under Order XV Rule 5 CPC seeking striking off the defence of the respondent/defendant for want of mandatory compliance with the provisions of Order XV Rule 5 CPC. After a round of litigation, the Allahabad High Court directed the respondent to deposit the monthly rent. The respondent failed to deposit the amount and subsequently filed an application for extension of time on the ground that the respondent failed to deposit on time for a sum of Rs 9000 (@Rs. 1500) for the rent, as his local counsel had gone abroad and the time provided in the order had expired. The extension application was allowed. Aggrieved thereby, the appellant approached the Apex Court.

Reasoning

The Bench, at the outset, explained, “It is not in dispute that the provision contained in Order XV Rule 5 CPC is intended to ensure that a tenant does not continue in possession of the tenanted premises without complying with the statutory obligation of depositing admitted rent/damages during the pendency of the suit. At the same time, it is equally well settled that the consequence of striking off the defence is a drastic one and the provision, though mandatory in form, has been interpreted to confer a degree of judicial discretion.”

The Bench noted that the Trial Court allowed the application under Order XV Rule 5 CPC and struck off the defence of the respondent primarily on the ground of non-deposit of rent within the stipulated time. However, the Bench highlighted that certain foundational aspects, such as the determination of the “first date of hearing” and the issue of proper service and opportunity, were neither conclusively determined nor adequately examined. “This Court has consistently held that the “first date of hearing” is not a mere formal date but the date on which the Court applies its mind to the case, ordinarily at the stage of framing of issues or consideration of pleadings”, it clarified.

The Bench further took note of the fact that in spite of the opportunities being given and though the assurance was given to the Court by submitting an application that the amount would be deposited, the amount was not deposited within the prescribed timeline, and again an application was filed for extension. “The record reflects certain lapses, however, the explanation offered indicates that the delay was neither gross nor wholly unexplained”, it added.

The Bench thus disposed of the appeal by holding that the ends of justice would be best served by remanding the matter to the Trial Court for a fresh consideration of the application under Order XV Rule 5 CPC.

Cause Title: Dharmendra Kalra & Ors. v. Kulvinder Singh Bhatia (Neutral Citation: 2026 INSC 492)

Appearance

Appellant: Senior Advocate R.Nedumaran, Advocates Anurag Dubey, Anu Sawhney, Maitri Goal, AOR Ashish Kumar Upadhyay, Advocate Varun Ranjan

Respondent: AOR M/S MPS Legal, Advocates Prabhat Chaurasia, Jasdeep Singh Dhillon, Anirudh Jamwal, Aditya Bajaj, Kenisha Savla

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