Case Note & Summary
The dispute arose from a suit for ejectment and recovery of arrears of rent filed by the respondent against the appellant. The appellant, as the lessee, resisted the suit but defaulted in depositing the rent during the pendency of the case. The respondent applied to strike off the appellant's defence under Rule 5 of Order XV of the Code of Civil Procedure, which mandates the deposit of rent to avoid such a penalty. The trial court accepted the application, stating that the appellant failed to make timely representation as required. The High Court upheld this decision, asserting that it had no discretion to allow the defence to remain if no representation was made or if it was late. The Supreme Court, however, found that the court does have discretion in such matters and that the word 'may' in the rule indicates that striking off the defence is not obligatory in every case of default. The court emphasized that the responsibility of striking off the defence should not be exercised mechanically and that the court must consider the existing facts before making such a decision. Consequently, the Supreme Court allowed the appeal, set aside the High Court's order, and remanded the case for fresh consideration, indicating that the appellant should have the opportunity to present any material that could justify not striking off the defence.
Headnote
A) Civil Procedure - Striking off Defence - Court's Discretion - Code of Civil Procedure, 1908, Order XV, Rule 5 - The court has discretion not to strike off the defence even if the defendant defaults in rent payment and fails to make timely representation. The court must consider the facts and circumstances before exercising this power, as striking off the defence is a penalty and not a mechanical process. Held that the High Court's interpretation was too narrow (Paras 128-129).
Issue of Consideration
Whether the court has discretion not to strike off the defence in case of default in depositing rent and failure to make representation under Rule 5 of Order XV, Code of Civil Procedure.
Final Decision
The Supreme Court allowed the appeal, set aside the High Court's order, and remanded the case for fresh consideration, emphasizing the court's discretion in striking off the defence.
Law Points
- Discretion of court
- Striking off defence
- Default in rent payment
- Representation under CPC
- Nature of penalty
