TaxTMI 
TaxTMI 
2026 (5) TMI 1021
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....allowing the application seeking extension of time filed by the respondent herein. BRIEF FACTS: 3. The fathers of the Appellants namely, Sh. Uttam Chand Kalra and Sh. Sain Das Kalra purchased suit premises no. 118/1-A Kaushalpuri, Kanpur Nagar from the erstwhile owner Shri Surendra Nigam son of Shri Laxmi Narayan Nigam, through a registered sale deed registered in the office of Sub-Registrar Kanpur Nagar. The respondents occupied two halls on the ground admeasuring 27' 3'' * 13 and 20" * 17'6" as a tenant at the aforesaid premises at an agreed rent which was revised from time to time and the tenancy corresponds to English Calendar Month. The defendant/respondent are running a Hotel named as 'Gyan Vaisnav Hotel' in the tenanted premises and the Appellants/landlords have to pay commercial taxes. Thereafter Shri Uttam Chand Kalra passed away on 29.09.2002 and Shri Sain Das Kalra passed away on 14.09.2014. Consequently, the Appellants/landlords became the owner of the suit premises. In the month of September 2020, the Appellants/landlords revised monthly rent to Rs. 25,000/- per month and the respondent/tenant agreed to pay the revised amount of rent. Further, the respondent/tena....
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...., Small Causes Court/ Additional District Judge, Kanpur for rejection of plaint on the ground inter-alia that the suit is barred under The Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021 i.e. U.P Act 16 of 2021. However, the same was rejected vide order dated 21.07.2023. Thereafter, the respondent/defendant filed an objection application dated 02.08.2023 in S.C.C Suit No. 52/2021 before Ld. Judge, Small Causes Court/ Additional District Judge, Kanpur praying inter-alla to dismiss the application filed by the Appellants/plaintiff under Order XV Rule 5 of CPC. 8. The respondent/defendant filed an application under Order XV Rule 5 regarding deposit of rent and interest in S.C.C Suit No. 52/2021 before Ld. Judge, Small Causes Court/ Additional District Judge, Kanpur praying inter-alla to condone the delay by accepting deposit of rent and interest from 1.04.2021 to 30.08.2021. Ld. Judge, Small Causes Court/ Additional District Judge, Kanpur vide order dated 05.08.2023 passed in S.C.C Suit No. 52/2021 allowed the application under Order XV Rule 5 of CPC filed by the Appellants/plaintiff herein on the ground inter-alia that defendant has accepted plaintiff as the co-owner ....
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....ailed to appreciate the settled legal position governing Order XV Rule 5 of the Code of Civil Procedure, 1908, inasmuch as mere denial of the landlord-tenant relationship does not absolve the tenant from the statutory obligation to deposit rent. The conduct of the respondent clearly demonstrated deliberate default and non-compliance, thereby attracting the consequence of striking off the defence. Learned counsel contended that the High Court, vide order dated 10.12.2024, had granted a final opportunity to the respondent to deposit the rent subject to an express condition that failure to do so would entail striking off the defence and that no liberty would be granted to seek extension of time. Despite such a categorical direction, the respondent failed to deposit the rent within the stipulated period, yet the High Court, by a subsequent order dated 07.02.2025, erroneously extended the time in the teeth of its earlier order, which is impermissible in law. It was also submitted that the respondent failed to deposit the entire arrears of rent, damages, and costs on or before the first date of hearing, as mandatorily required under Order XV Rule 5 CPC, and no representation was made wit....
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.... The present petition has been filed only after the grant of extension, which clearly indicates that the grievance is limited to the discretionary order dated 07.02.2025. Learned counsel further submitted that in view of the subsequent compliance with the conditions imposed by the High Court, including deposit of the entire due rent, the present petition has become infructuous and does not warrant consideration on merits. Without prejudice, it was contended that the underlying suit itself is not maintainable in view of the enforcement of the Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021, and the applicability of the earlier regime stands excluded. It was also submitted that the Trial Court erred in allowing the application under Order XV Rule 5 CPC without determining the "first date of hearing" and without ensuring proper service of the plaint or affording an opportunity to file a written statement. It was emphasized that striking off the defence is a penal consequence and the power under Order XV Rule 5 CPC is discretionary, requiring due consideration of the facts and circumstances. In the present case, the respondent had substantially complied with the requiremen....
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....ts, 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-rule (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 vested power in the court to strike off the defence. It does no....
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....or volitional nonperformance. 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. The last resort cannot be converted into the first resort; a punitive direction of court cannot be used as a booby trap to get the tenant out. Once this teleological interpretation dawns, the mist of misconception about matter-of-course invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing truant with the duty underlying the power." (emphasis supplied) Striking off the defence is a serious matter and ought not to be resorted to unless there is a clear case of deliberate default or contumacious conduct on the part of the tenant. 18. In the present case, the Trial Court proceeded to allow 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, fro....
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....or proceeding to be taken by the court for it is, after all, a "hearing" that is the subject-matter of the definition, unless there be something compelling in the said Act to indicate otherwise; and we do not find in the said Act any such compelling provision. Further, it is not possible to construe the expression "first date for any step or proceeding" to mean the step of filing the written statement, though the date for that purpose may be mentioned in the summons, for the reason that, as set out earlier, it is permissible under the Code for the defendant to file a written statement even thereafter but prior to the first hearing when the court takes up the case, since there is nothing in the said Act which conflicts with the provisions of the Code in this behalf. We are of the view, therefore, that the date of first hearing as defined in the said Act is the date on which the court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary. (emphasis supplied) 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 ....