Harjinder Pal vs Tarlochan Singh

Sat Pal, J.—This petition has been directed against the order dated 3.5.1997 passed by the Additional Civil Judge (SD) Nawanshahr. By this order the learned trial Court has allowed the application filed by the plaintiff-respondent under Order 15 Rule 5 CPC and has directed the petitioner-defendant to deposit arrears of compensation at the rate of Rs. 1,350/- per month in the court. Notice of this petition was issued to the respondent. The case has been called out second time after a pass over was given but none is present on behalf of the respondent. Accordingly, I proceed to dispose of the matter.

Mr. Arvind Singh, the learned counsel appearing on behalf of the petitioner submits that the present suit has been filed by the plaintiff for mandatory injunction ordering/directing the defendant-petitioner to stop the user of the shop in dispute. He submits that in a suit like this, the provisions of Order 15 Rule 5 CPC are not applicable.

After hearing the learned counsel for the petitioner and having perused the plaint and the impugned order, I am of the opinion that the impugned order dated 3.5.1997 passed by the learned trial court is not legally sustainable. Order 15 Rule 5 CPC under which the application filed by the respondent-plaintiff was allowed, reads as under:

"5. Striking off defence for failure to deposit admitted rent :

(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 cent 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 the 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."

A bare reading of the Order 15 Rule 5 CPC clearly shows that this applies to any suit by a lessor for the eviction of the lessee after the determination of his lease, and for the recovery from him of rent or compensation for the use and occupation. Admittedly, the present suit is for mandatory injunction and as such the provisions of Order 15 Rule 5 CPC are not applicable to the present case.

In view of the above discussion the petition is allowed and the impugned order dated 3.5.1997 passed by the learned trial court is set aside.