Case Note & Summary
The present writ petition was filed by the petitioner, Chowgule and Company Limited (now Chowgule and Company Private Limited), challenging the order dated 22/07/2015 passed by the Civil Judge, Senior Division, at Margao, in Regular Civil Suit No. 123/2010. The petitioner is the original plaintiff in the suit, which was filed for eviction and recovery of possession of a property. The respondents are the original defendants, who are tenants in the suit property. During the pendency of the suit, an interim order was passed directing the defendants to pay rent at a certain rate. The defendants failed to comply with this order, leading the plaintiff to file an application under Order XV Rule 5 of the Code of Civil Procedure, 1908 (CPC) to strike off the defence of the defendants. The trial court, by the impugned order, rejected this application. The petitioner challenged this order before the High Court. The High Court examined the provisions of Order XV Rule 5 CPC, which empowers the court to strike off the defence of a tenant who fails to pay rent as directed by the court. The court noted that the discretion under this provision must be exercised judicially and not arbitrarily. The court found that the trial court had failed to consider the material on record, including the conduct of the defendants and the reasons for non-payment. The High Court held that the trial court's order was not sustainable as it did not apply its mind to the facts of the case. Consequently, the High Court allowed the writ petition, set aside the impugned order, and remanded the matter back to the trial court for fresh consideration in accordance with law. The court directed the trial court to pass a fresh order after giving an opportunity of hearing to both parties and considering the material on record.
Headnote
A) Civil Procedure - Order XV Rule 5 CPC - Striking off defence - The trial court's discretion under Order XV Rule 5 CPC to strike off defence for non-compliance with interim order regarding payment of rent must be exercised judicially and not arbitrarily. The court must consider whether the default was willful and deliberate. In the present case, the trial court's order refusing to strike off defence was set aside as it failed to consider the material on record and the conduct of the defendants. (Paras 1-10) B) Civil Procedure - Interim Orders - Compliance - The purpose of Order XV Rule 5 CPC is to ensure compliance with interim orders passed by the court. The provision is meant to be a deterrent against willful disobedience of court orders. The court must examine the facts and circumstances to determine if the default was intentional. (Paras 5-8) C) Civil Procedure - Discretion of Court - Judicial exercise - The discretion conferred on the court under Order XV Rule 5 CPC must be exercised in a judicial manner, based on the facts and circumstances of each case. The court cannot refuse to strike off defence without considering the material on record and the conduct of the parties. (Paras 6-9)
Issue of Consideration
Whether the trial court was justified in refusing to strike off the defence of the respondents under Order XV Rule 5 of the Code of Civil Procedure, 1908, for non-payment of rent as directed by the interim order.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 22/07/2015, and remanded the matter back to the trial court for fresh consideration in accordance with law. The trial court was directed to pass a fresh order after giving an opportunity of hearing to both parties and considering the material on record.
Law Points
- Order XV Rule 5 CPC
- discretion must be exercised judicially
- willful default necessary for striking off defence
- purpose of Order XV Rule 5 is to ensure compliance with interim orders
- trial court's order must be based on material on record
