M.L.SINGHAL,J - (1.) SHRI Mani Ram Verma, Advocate has not pressed his prayer for amendment of the written statement made under Order 6 Rule 17 CPC before the learned trial Court. If that is so, this part of the order of the learned trial Court whereby he refused him to amend the written statement has become unassailable. Revision qua that part of the order is dismissed as not pressed.
(2.) HE presses his prayer for the dismissal of the application which has been moved by the plaintiffs for the striking off his defence on account of non- payment of rent/compensation for use and occupation in view of the provisions of Order 15 Rule 5 CPC and which was allowed by the learned trial Court. He submits that Order 15 Rule 5 CPC was inserted by the Punjab and Haryana High Court as referred in Punjab Govt. Gazette Legislative (Suppl) notification dated May 13, 1991 while this suit was instituted in the year 1989. He submits that the provisions of Order 15 Rule 5 could not be retrospective in effect. These could be only prospective in effect. In other words, these provisions should be applicable to the suits, instituted after 13th May, 1991. He further submits that provisions of Order 15 Rule 5 are penal in character and penal provisions cannot be retrospective in their effect to the detriment of the party, Order 15 Rule 5 CPC reads as follows :- "5. Striking off defence on failure to deposit admitted rent, etc. - (1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant, shall at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2) strike off his defence. Explanation 1 : The expression 'first hearing' means the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned the last of the dates mentioned. Explanation 2 : The expression 'entire amount admitted by him to be due' means the entire gross amount whether as rent or compensation for use and occupation, calculated at the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, deposited in any Court. Explanation 3 : The expression 'Monthly amount due" means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other decution except the taxes, if any, paid to a local authority, in respect of the building on lessor's account. (2) Before making an order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within ten days of the first hearing or, of the expiry of the week referred to in sub-section (1) as the case may be. (3) The amount deposited under this rule may at any time be withdrawn by the plaintiff : Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited : Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same." 3. In support of this submission, he seeks to draw support from Jai Bhagwan v. Chandra Mohan and others, 1995(2) RCR (Rent) 373 (P&H) : 1995(3) PLR 191 : 1995(3) RCR(Civil) 3 (P&H) where it was held that "Order 15 Rule 5 CPC as introduced by the notification dated 10.5.1991 is prospective in nature and the said provision cannot be applied to the suits bending on the date of publication of the said notification. It was also held that for the purpose of the suit filed by the respondent in the year 1989, the date of first hearing had come and gone long before the insertion of Rule 5 and, therefore, it was impossible for the petitioner to take advantage of the provisions relating to the deposit of the amount of rent, interest etc. on the first date of hearing. This must be the position in majority of the suits which were pending on 14.5.1991. This impossibility of compliance of the provisions of Rule 5 is a factor which shall have to be kept in view while determining the issue relating to applicability of the said provision. Another important factor which has to be taken note of is that the provision introduced vide notification dated 10.5.1991 imposes a penalty/disqualification on the tenant/lessee in case of his failure to comply with the conditions of deposit of rent or compensation for the use and occupation of the leased premises. The striking off the defence of a lessee deprives him of his right to contest the suit on merits and, therefore, an order of the Court striking off the defence has grave consequences. This being the import of Rule 5, it cannot be treated as a procedural provision. To my mind, Rule 5 which creates a new disability for the tenant/lessee in case of his failure to deposit the amount of rent or compensation and which effects the rights of the tenant is a substantive provision and, therefore, it cannot be treated as retrospective."
(3.) . In this view of the matter, this revision has to be allowed and is accordingly allowed. Order striking off the defence of the defendants passed by the learned trial Court is set aside. Defendant petitioner is, however, directed to deposit all arrears of rent, if any, due together with interest that has become accrued thereon to date in the trial Court on or before October 31, 2000. Participation of the defendant in the suit is subject to the compliance of this direction being given to him now. Learned trial court is directed to dispose of the suit as early as possible, at any rate, till 30.4.2001. Revision allowed.;