O. XV, R. 5 of the C.P.C., introduced by the notification dated 10-5-1991, is prospective in nature and cannot be applied to suits pending on the date of publication of the notification. The court has the discretion to strike off or not to strike off the defense after considering the representation, if any, made by the defendant and the relevant facts brought on record.

, J.

1. Two interesting questions which arise for determination in this revision petition are as to whether O. 15, R. 5 Code of Civil Procedure is retrospective so as to affect pending cases and whether the Court has no discretion to extend the time for deposit of arrears of rent etc.

2. The suit filed by the respondents for possession of the shop in dispute is pending trial before the Court of learned Sub Judge, Charkhi Badri. The plaintiff-respondents have claimed themselves to be the owners of the shop in question and have pleaded that after termination of tenancy of the tenant-petitioner, the latter has no right to continue with the possession of the suit property. The defendant-petitioner has contested the suit by alleging that the plaintiff-respondents do not have any right to seek his eviction. During the pendency of the suit, the defendant-petitioner filed an application under O. VI, R. 17, Code of Civil Procedure, for amendment of the written statement and the plaintiff-respondents filed an application to strike off the defence of the defendant-petitioner under O. XV, R. 5, Code of Civil Procedure, on the ground of non-payment of rent/ compensation for use and occupation of the suit premises.

3. After considering the cases set up by the parties, the learned Sub Judge rejected the application for amendment filed by the defendant-petitioner and allowed the application filed by the plaintiff-respondents to strike off the defence of the petitioner. The learned Sub Judge held that the provision contained in O. XV, R. 5, C. P. C. introduced by notification dated 10-5-1991 is retrospective in character. The learned Sub Judge further held that as the defendant-petitioner has failed to pay the rent/compensation together with interest for use and occupation of the shop in dispute, his defence is liable to be struck off.

4. During the course of hearing, Shri Sarin made a statement that he is not challenging the order passed by the learned Sub Judge in so far as it relates to rejection of the application filed by the defendant-petitioner under O. VI, R. 17. On the issue of applicability of the provision of O. XV, R. 5, Shri Sarin argued that the suit was filed by the respondents in the year 1989 and as the provision of O. XV, R. 5, has been inserted by notification dated 10-5-1991, the same can have no application to the pending proceedings. Shri Sarin argued that O. XV, R.5, introduces a penal provision and, therefore, it cannot be applied to the pending cases. According to the learned counsel, O. XV, R. 5, is prospective in character and, therefore, the learned Sub Judge was in error in invoking the said provision for striking off the defence of the petitioner. Shri Sarin argued that it was impossible for the tenant to comply with the provision of O. XV, R. 3, because the first date of hearing of the suit was much prior to the date of insertion of O. XV, R. 5, and it could not have been possible for the tenant to avail of the opportunity envisaged in that provision in order to avoid the penalty which he could suffer in case of his failure to avail the opportunity to deposit the entire amount of rent etc. An alternative contention raised by Shri Sarin is that even if the provision contained in O. XV, R. 5, is - held - to be retrospective, it was not open to the learned Sub Judge to have straightway passed an order striking off the defence of the petitioner without giving him a reasonable opportunity to deposit the arrears of rent etc. Shri B. R. Gupta, learned counsel appearing for the respondents argued that O. XV, R. 5, is only a procedural provision and as the procedural provision is always retrospective in nature, the learned trial Court was right in applying the provisions of O. XV, R. 5, to the case of the petitioner. Shri Gupta argued that a similar provision introduced by the State of Uttar Pradesh has been held to be retrospective in Kashi Ram V/s. Hari Chand, Allahabad Rent Cases, 1982 (C.R. No. 1522 of 1979 de