JUDGMENT Rakesh Tiwari, J.
1. This petition has been filed challenging the validity and correctness of the judgments and decree dated 14.9.1999 and 12.5.2005, passed by Judge Small Causes Court, Etah and Additional District Judge, Etah, respectively in S.C.C. Suit No. 37 of 1986 and S.C.C. Revision No. 19 of 1993 respectively.
2. Briefly stated, the facts of the case are that the plaintiff-respondent filed Suit No. 37 of 1986 against Late Mauji Ram, father of the petitioners for ejectment on the ground of nonpayment of rent w.e.f. 11.11.1976 to 10.5.1986. Notices were issued by the Court fixing 21.8.1986, which were served on the tenant, which was incidentally a holiday, as such, the case was taken up on 22.8.1986.
3. The plaintiff was present in the Court but neither late Mauji Ram nor his counsel was present when the case was taken up, as such, the Court on 22.8.86 ordered the case to proceed ex parte fixing 29.8.1986 for ex parte hearing. The predecessor-in- in terest of the petitioners, i.e., the tenant appeared in the case on 29.8.1986 and filed an application for setting aside the order dated 22.8.1986 to proceed ex parte. The application was allowed and the order dated 22.8.1986 was set aside fixing 9.10.1986 for final hearing and filing of written statement.
4. It is claimed by the petitioners that as averred in paragraph 16 of their written statement they had deposited the entire amount in excess than claimed by the plaintiff-respondent together with interest as well as costs of the suit etc., as per provision of Section 20 (4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') even before the date of first hearing and that the plaintiff-respondent could withdraw the same. It is also claimed by the petitioners that this fact was not denied by the landlord-respondent in reply to the aforesaid written statement.
5. The Judge, Small Causes Court decided S.C.C. Suit No. 37 of 1986 in favour of the landlord treating the 'date of first hearing in the case as 22.8.1986 and not 29.8.1986.
6. Aggrieved, the tenant-petitioners preferred S.C.C. Revision No. 19 of 1993, which too was dismissed by judgment and decree passed by Additional District Judge, Etah, who by its order dated 12.5.2005 affirmed the judgment and decree of Judge, Small Causes Court in S.C.C. Suit No. 37 of 1986.
7. Counsel for the petitioner vehemently urged that the only controversy in the instant case is as to what would be the date of first hearing'. He contends that if, for any reason, the date fixed in the summons is adjourned to a future date, the adjourned date on which the Court applies its mind to the facts and circumstances of the case, would be the 'first date of hearing'. in support of this contention he placed reliance on the decision in SiraJ Ahmad Siddiqui v. Prem Nath Kapoor 1993 (2) ARC 451; Mam Chand Pal v. Smt. Shanti Agarwal 2002 (I) ARC 370 : 2002 (2) AWC 1257 (SC) and Ashok Kumar and Anr. v. Rishi Ram and Ors. 2002 (2) ARC 160 : 2002 (3) AWC 2428 (SC).
8. in SiraJ Ahmad Siddiqui (supra) it is held:
Learned Counsel for the respondent drew attention to the provisions of Section 20 (4) of the said Act and Laid emphasis upon the Explanation thereto which said that for the purpose of this sub-section the expression "first hearing" meant the first date for any step or proceedings mentioned in the summons served on the defendant". in his submission, the date of first hearing was the date of the service of the summons on the appellant, which, in the instant case, had to be presumed since the summons had been returned by the postal authorities with the remark "Refused." We do not question the latter part of the submission but, in our view the date of the first hearing cannot, plainly, be the date of service of the summons. That is plain from the expression "first hearing" itself and from the meaning given to it in the said Act.
9. Counsel for the respondent contended that the predecessor-in- in terest of the petitioners executed a rent deed for two motor garages situated in Qasba Jalesar, district Etah at the rate of Rs. 60 per month w.e.f. 11.11.1976. He committed default in payment of rent and a sum of Rs. 8,673 became due upto 10.5.1986. Notice dated 7.6.1986, was served by the landlord on the tenant on 11.6.1986, terminating the tenancy of the predecessor-in-interest of the petitioners but in spite of it, neither rent was paid nor premises, in question, was vacated compelling the landlord to institute S.C.C. Suit No. 37 of 1986 for restitution of possession and recovery of Rs. 3,200. It is further stated that in paragraph 16 of the written statement, the petitioners-tenants stated that a sum of Rs. 9,750 was deposited in the Court and the landlord may withdraw the outstanding amount, but the amount aforesaid deposited by the defendant-tenants was a conditional deposit, hence the benefit of Section 20 (4) of the Act could not be extended to the tenants.
10. He states that Judge, Small Causes Court, Etah, has decided the case and has held that defendant is telling lie. Subsequent, the Court found that the defendant has committed default in paying the rent. Relevant issue No. 5 relating to benefit under Section 20 (4) of the Act has been decided and after considering various decisions, the courts below have held that 22.8.1986 will be the 'first date of hearing' as Court had applied its mind on that date and that admittedly the amount had been deposited on 29.8.1986. Thus, after holding that the defendant is not entitled to get the benefit of Section 20 (4) of the Act, decreed the suit for arrears of rent and eviction. The legal heir of the defendant, i.e., the present petitioner instituted S.C.C. Revision No. 19 of 1993, against the aforesaid judgment dated 14.9.1993 which too has been dismissed by the Allahabad District Judge, Etah on 12.5.2005 and affirmed the findings recorded by the trial court vide order dated 14.9.1993.
11. He submitted that on the one hand the petitioners allege that copy of the plaint was not served upon them and on the other, they have calculated the actual balance rent, cost of the suit etc. and deposited an amount of Rs. 9,750. if copy of the plaint was not served upon them, it is beyond comprehension as to how they calculated the exact amount. He further submitted that the Judge, Small Causes Court has recorded a finding of fact that the tenants defaulted in payment of rent and holding 22.8.1986 to be the first date of hearing' as Court applied its mind on that day but the amount having been deposited on 29.8.1986, the petitioners are not entitled to the benefit of Section 20 (4) of the Act. it is urged that the findings of facts recorded by the trial court having been affirmed by the revisional court and that as both the courts below having recorded concurrent findings of fact, as such, they require no interference in the writ jurisdiction under Article 226 of the Constitution of India unless perversity and illegality in arriving to the conclusions is proved by the petitioneRs.
12. Insupport of his contentions, the counsel for the respondents relied upon the decisions of Hon'ble Supreme Court in Sudershan Devi and Anr. v. Sushila Devi and Anr. 1999 (2) ARC 668 : 1999 (4) AWC 3484 (SC); Lal Chand and Anr. v. District Judge, Agra and Ors. 1999 (2) ARC 678 : 1999 (4) AWC 3428 (SC); Mam Chand Pal v. Smt. Shanti Agarwal 2002 (1) ARC 370 : 2002 (2) AWC 1257 (SC); P. Purshottam Reddy and Anr. v. Pratap Steels Ltd. 2002 (1) ARC 376 : 2002 (3) AWC 2364 (SC); Ashok Kumar and Ors. v. Rishi Ram and Ors. 2002 (2) ARC 160 : 2002 (3) AWC 2428 (SC) and decisions of this Court in Radhey Shyam Patwa v. Xth Addl. District Judge, Varanasi and Ors. 1993 (2) ARC 485 : 1994 (2) AWC 870 and L.M.L. Ltd. v. State of U.P. and Ors. 2001 (2) AWC 1472: 2001 (2) AWC 1472.
13. There is no controversy on the fact that admittedly the entire rent had been deposited by the tenant on 29.8.1986 with interest and cost of suit etc., hence the only dispute which requires to be considered is the legal point as to whether the deposit made by the tenant on 29.8.1986 in the circumstances of the case was on or before the first date of hearing or not.
14. The cases relied upon by counsel for the petitioner may be considered first.
15. In the case of SiraJ Ahmad Siddiqui (supra), Hon'ble the Supreme Court considered the provisions of Section 20 (4) read with Section 20 (1)(a) of the Act alongwith Order V, Rule 1, Order VIII, Rule 1 and Order XIV, Rule 3 of the Code of Civil Procedure for the purposes of determining the first date of hearing'. Hon'ble the Apex Court considered the question of determination and relevant aspects about the 'first date of hearing' and held that:
The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the Court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. Does the definition of the expression first hearing for the purposes of Section 20 (4) means something different? The 'step or proceedings mentioned in the summons referred to in the definition should, we think, be construed to be a step or proceedings to be taken by the Court for it is, after all, a 'hearing' that is the subject-matter of the definition, unless there be something compelling in the said Act to indicate otherwise; and we do not find in the said Act any such compelling provision. Further, it is not possible to construe the expression 'first date for any step or proceeding' to mean the step of filing the written statement though the date for that purpose may be mentioned in the summons, for the reason that, as set out earlier, it is permissible under the Code for the defendant to file a written statement even thereafter but prior to the first hearing when the Court takes up the case, since there is nothing in the said Act which conflicts with the provisions of the Code in this behalf. We are of the view, therefore, that the date of first hearing as defined in the said Act is the date on which the Court proposes to apply its mind to 'determine the points in controversy between the parties to the suit and to frame issues, if necessary.
16. In that case, the date fixed for filing written statement was 22.2.1984 and date for framing of issues was 28.2.1984, but summons could not be served. The defendant, however appeared on 24.2.1984 and filed an application alongwith an affidavit that he has come to know about the filing of the case. Court gave one month's time for depositing rent etc. The defendant deposited it on two dates but within time allowed by the Court. in those circumstances, Hon'ble the Apex Court held that the tenant was entitled for the benefit of deposit under Section 20 (4) of the Act.
17. in Mam Chand Pal v. Smt. Shanti Agarwal (supra), Hon'ble the Apex Court interpreted the expression 'first date of hearing' to mean the date on which Court applies its mind to the facts and controversies involved in the case. It was held that the date fixed for hearing would be the date for first hearing provided the Court applied its mind by framing issues or otherwise. in that case, the Court was vacant and the case was adjourned, hence, it was held that date on which the case was adjourned would not be treated as the 'first date of hearing'. After considering the cases of Sudarshan Devi and Anr. v. Sushila Devi and Anr. ; Ved Prakash Wadhwa v. Vishwa Mohan ; Advita Nand v. Judge, Small Causes Court, Meerul and Ors. , it was held that the Court was to apply its mind to the facts of the case on the date fixed for hearing and not earlier on the date fixed for filing of the written statement. Hon'ble the Apex Court also considered the decision in Jagannath and Anr. v. Ram Chandra Srivastava and Anr. 1982 (1) ARC 665, wherein the Court was considering the expression 'first hearing' as occurring in Order XV, Rule 5, C.P.C. It was held that the first hearing' will be the date mentioned in the summons for the purpose except when the Prescribed Officer is absent or otherwise is not available to take up the case on that date.
18. Last case cited by counsel for the petitioner is Ashok Kumar and Ors. v. Rishi Ram and Ors. 2002 (2) ARC 160, wherein Hon'ble the Supreme Court considered Explanation (1) of Order V, Rule 1 of the Code of Civil Procedure read with Section 20 (4) of the Act which defines the 'first date of hearing' as the date of filing written statement or the date mentioned in the summons. It was held that Section 20 (4) of the Act would prevail over Section 38 and Explanation (1) of Order V, Rule 1, C.P.C. It was held that it is the date when the Court purposes to apply its mind to identify the controversy in the suit and that stage arises when the defendant is afforded an opportunity to file his written statement. It was further held that the controversy was no longer res in tegra and the first hearing would not change on every adjournment of the suit for final disposal.
19. Contention of counsel for the respondents in relation to the legal provisions of the Act read with Code of Civil Procedure and law cited by him may now be considered.
20. Counsel for the respondents submits that for the purposes of the present case, provision of Section 20 (4) of the Act and provision of Order V, Rule, 5, of the Code of Civil Procedure will be relevant, which are quoted below:
Section 20 (4).--inany suit for eviction on the ground mentioned in Clause (a) of subsection (2), if at the first hearing of the suit the tenant unconditionally pays (or tenders to the landlord or deposits in Court) the entire amount of rent and damages for use and occupation of the building due from him (each damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against the liability for eviction on that ground:
Provided that nothing in this sub-section shall apply in relation to a tenant who or any member of his family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area.
Explanation. -- For the purposes of this sub-section--
(a) the expression 'first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant;
(b) the expression 'cost of the suit' includes one-half of the amount of counsel's fee taxable for a contested suit.
Order V, Rule 5 of C.P.C.
(5) Summons to be either to settle or for final disposal and the Court shall determine, at the time of Issuing the summons, whether it shall be for settlement of issues only, or for the final disposal of the suit and the summons shall containa direction accordingly:
Provided that in every suit heard by the Court of Small Causes, the summons shall be for the final disposal of the suit.
21. in the case of Radhey Shyam Patwa (supra) cited by counsel for the respondents, the tenant disputed the claim of the landlord, making deposit for rent etc., but it was found short of necessary deposit. Subsequent deposit of amount which was short, it was held, will be of no help to the tenant as delay in depositing the amount cannot be condoned under Section 5 and Court cannot exercise Its inherent powers under Section 151 also for extending benefit of Section 20 (4). This citation, therefore, does not help the respondents as in the instant case, more than excess amount was deposited and the deposit was not a conditional tender. in Sudarshan Devi and Anr. (supra), Siraj Ahmad Siddiqui (supra) and Advita Nand (supra), referred to above, were considered by Hon'ble the Supreme Court in reference to Section 20 (4) and the Explanation (1) of Order V, Rule 1, C.P.C. Hon'ble the Apex Court held that the date of first hearing of the suit would not be the date fixed for filing the written statement but would be the date proposed for the hearing, i.e., the date proposed for applying the Court's mind to determine the points in controversy and to frame issues, if necessary. It further held that the decisions in Siraj Ahmad Siddiqui (supra) and Advita Nand (supra) were binding on it. Thus, in the case of Sudarshan Devi and Anr. (supra), the case was one tried by the Judge, Small Causes Court in which summons initially stated that the date for first hearing i.e., the date fixed for final hearing would be 22.2.1990. All the three courts below held that the crucial date was 22.2.1990 and there was clear default by 22.2.1990, but in the opinion of Hon'ble Supreme Court, 22.2.1990, was not the due date. The summons were served by the method of substituted service and it was common ground that the summons were not accompanied by plaint. But in the case in hand, there is no such plea that the summons were not accompanied by plaint.
22. The cases of Mam Chand Pal v. Smt. Shanti Agarwal (supra) and Ashok Kumar and Ors. (supra) cited by counsel for the respondents have also been relied upon by counsel for the petitioner and have been dealt with in the foregoing paragraphs of this Judgment.
23. The decision in Mohd. Salim alias Salim Uddin v. Fourth Addl. District Judge, Allahabad and Ors., 2001 (2) AWC 1468, cited by counsel for the respondents was decided by this Court wherein it was held as to what would be the 'first date of hearing' in reference to explanation of Section 20 (4) of the Act, need not be gone in to in detail in face of binding decisions of Hon'ble the Apex Court already cited above as this Court, in that case has only held that the expression 'first date of hearing' means the date mentioned in the summons duly served. in that case as well, the defendant appeared and prayed for copy of the plaint which was supplied to him on 27.10.1994 and 21.11.1994 was fixed for filing written statement and hearing 21.11.1994 was construed to be the 'first date of hearing'.
24. In the aforesaid context regard may be had to the fact that a suit giving a notice for determination of the tenancy has to be filed in the Court of Small Causes in view of the Amendment (U.P. Act 37 of 1972) to Section 15 and Article 4 of the Second Schedule of the Provincial Small Causes Courts Act, 1887. Under Section 38 of the Act, the provisions of the U.P. Act 'shall have effect notwithstanding anything in consistent therewith contained in the Transfer of Property Act, 1882 (Act IV of 1882) or in the Code of Civil Procedure, 1908 (Act V of 1908)." That is how the suit for eviction under the U.P. Act of 1972 came to be filed in the Small Causes Court.
25. So far as the method of issue of summons in Small Causes suits is concerned, the Code of Civil Procedure, 1908, makes a special provision.
26. Now Order V, Rule 1 (1), contains the general procedure in suits, namely, that the summons directs the defendant to appear on the notified date to answer claim on a day specified therein and that the Court may also direct him to file his written statement. Further, Order V, Rule 2, states that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise staterrient. This provision is in tended to enable the defendant to have notice of the contents and relief claimed in the suit.
27. However, the proviso to Order V, Rule 5, which deals with Small Cause Suits, lays down a slightly different procedure than what is stated in Order V, Rule 1, and reads as follows:
Order V, Rule 5.--The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit, and the summons shall contain a direction accordingly.
Provided that in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit.
28. Thus, while in other suits, the Court has to decide at the time of summons whether it shall be for settlement of issues or for final disposal so far as suits heard by a Court of Small Causes are concerned, the summons shall be for the final disposal of the suit and under Order V, Rule 8, on issue of summons for final disposal the defendant has also to be directed to produce his witnesses too on the day fixed for his appearance.
29. However, the summons issued to the respondents in the case, quoted hereinafter, are not identical to the summons as prescribed in the Code of Civil Procedure for Small Causes Suit:
^^pwWafd oknh usa vkids f[kykQ ,d nkok ckor&&&&&&vnkyr gktk esa is'k fd;k gS fygktk vkidks lwfpr fd;k tkrk gS fd vki rk0 27-8-1986 dks o oDr 10 cts fnu ds vnkyr gktk esa gkftj gksdj vnkyr ;k ekQZr fdlh odhy ds viuk ,rjkt is'k djsa vkSj tokc gsrq dqy nkok dks djks ojuk vkidh xSjgkftjh esa eqdnek dh lekfIr bdrjQk vkidsa f[kykQ dh tk;sxhA esjs gLrk{kj o eqgj vnkyr ls vkt rk0 14-7-1986 dks tkjh fd;k A g0 vLi"V flfoy tt] ,Vk**
30. The Form for summons as prescribed in the Code of Civil Procedure for small causes suits, is as follows:
Whereas... has instituted a suit against you for... you are hereby summoned to appear in the Court in person or by a pleader duly instructed, and able to answer all material questions relating to the suit, or who shall be accompanied by some person able to answer all such questions on the... day of... 200... at... O'clock in the.... Noon to answer the claim; and as the day fixed for your appearance is appointed for the final disposal of the suit, you must be prepared to produce that that day all the witnesses upon whose evidence and all the documents upon which you in tend to rely in support of your defence.
Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.
Given under my hand and the seal of the Court, this... day of... 200 Judge Notice -- (1). Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call upon the witness to produce, on applying to the Court and on depositing the necessary expenses.
(2) If you admit the claim, you should pay the money in to Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.
31. Section 20 (4) of the Act uses the words 'at the first hearing of the suit and requires the tenant to unconditionally pay or deposit or tender the entire amount of rent and damages, interest and costs after deducting amounts, if any, deposited under Section 30 (1). The Explanation defines the summons served on the defendant. 'Now in the words 'first hearing' the emphasis is certainly on the word 'hearing'.
32. Question arises as to whether the words 'for any step or proceeding mentioned in the summons used in the Explanation as meant to bring about any change in the understanding that in a small cause suit, notice is for final disposal of the suit on the specified date?
33. Before U.P. Amendment Act 28 of 1976, 'first hearing' meant date on which Court applied its mind to the case or on which the issues were settled or evidence taken.
34. Hon'ble the Apex Court on several occasion explained the meaning of the words 'first hearing of the suit' as they occurred in Section 20 (4) of the Act before the amendment of Section 20 (4) in U.P. Act No. 28 of 1976. in Ved Prakash Wadhwa's case (supra) it was held that the words 'first hearing' meant 'after framing of issues' when the suit would be posted for production of evidence Hon'ble Supreme Court referred in that context to Order X, Rule 1, Order XIV, Rule 1 (5) and Order XV, Rule 1 and held that the 'first hearing of the suit' could never be earlier than the date fixed for preliminary examination of witnesses. Order X, Rule 1 and the settlement of issues (Order XIV, Rule 1 (5)). in that case, District Judge ordered eviction on the ground that although the money was tendered before the first hearing, the actual deposit in the treasury was made later, which was a few days beyond the first hearing but before the framing of issues. The deposit was on 18.9.1974 while the issues were from on 24.10.1976. Hon'ble Supreme Court held that the deposit was in time. It was, however, observed that the Court was not there concerned with the amendment by the Amending Act 28/76 when the Explanation was added.
35. Thereafter in Sham Lal (dead by L.Rs. v. Atma Nand Jain Sabha JT 1986 SC 1016, following Ved Prakash Wadhwa (supra), it was held that, it was only after the written statement was filed, issues were framed that the hearing could commence. Hon'ble Supreme Court also held that the 'first day of hearing' would not be the day for return of the summons nor the returnable day but would mean the day on which the Court applied its mind to the case- which ordinarily, would be at the time when either of the issues are determined or evidence taken. It was stated that it was so held by the Bombay and Gujarat High Courts while dealing with Section 12 (3)(b) of the Bombay Rents, Hotel and Lodging House Rates (Central) Act, 1947 and that that view was correct. The judgment of the High Court was set aside and the eviction suit was dismissed. That case arose under Section 13 (2)(i) of the East Punjab Urban Rent Restriction Act, 1949, but is relevant as reference was made in that case to U.P. Act of 1972. It was observed that the provisions were part materia. There the summons were served on the tenant 'returnable' by 26.6.1969. On that date, the tenant appeared and prayed for adjournment to file written statement. The case was adjourned to 2.7.1969. On that date written statement was filed and the tenant tendered the arrears as fixed by the Rent Controller. The landlord accepted the same under protest. The High Court treated 26.6.1969, the date for return of summons as the date of first hearing. Hon'ble Supreme Court observed that the date 26.6.1969, mentioned in the summons could not be treated as the date of 'first hearing' because that was the date for appearance and the Court did not take up the hearing or apply its mind to the hearing of the application.
36. Subhash Chand Jainv. First Addl. District and Sessions Judge, Saharanpur and Ors., , again arose under the U.P. Act, 1972 and related to facts before the 1976 Amendment. The High Court ordered eviction and the same was confirmed by Hon'ble Supreme Court. The tenant in that case did not appear on 4.4.1975, the day fixed in the summons, the suit proceeded ex parte and was decreed. The ex parte decree was set aside and on 30.5.1977 a fresh date was fixed for hearing, namely, 30.8.1977. But the deposit was made on 1.10.1977. A. three Judge Bench of Hon'ble Supreme Court observed that 30.8.1977, would be the date of first hearing and that the deposit having been made much later, the High Court was right in ordering eviction:
After Amendment by Act 28 of 1976, which introduced Explanation:
First hearing means date fixed for purpose of framing disposal of suits or for purpose of framing issues, if necessary.
37. After the amendment, the position was considered in SiraJ Ahmad Siddique (supra) and Advaita Anand (supra) whereinHon'ble the Apex Court disagreed with the full Bench of Allahabad High Court in Sita Ram v. District Judge, Kheri 1984 (1) ARC 410 and reiterated what was stated in Ved Prakash Wadhwa's case (supra) as well as SiraJ Ahmad Siddique (supra) as to the meaning of 'first date of any step or proceeding' and in paragraph 7, observed as follows:
We find that in Siraj Ahmad Siddiqui's this Court took note of the Explanation and has observed that it was not possible to construe the words 'fixed date for any step or proceeding' which were contained in the Explanation, to mean the step of filing the written statement, thought the date for that purpose may be mentioned in the summons, for the reasons that it is permissible under the Code of Civil Procedure for the defendant to file written statement even thereafter but prior to the first hearing when the Court takes up the case. It cannot, therefore, be said that the Explanation to Section 20 (4) was not given due consideration in Siraj Ahmad Siddiqui.
Conclusions:
38. After hearing the counsels for the parties, the impugned order dated 22.8.1986 may be referred. It is as under:
Order Case called out. The plaintiff is present with his counsel. None is responding for defendant. Summons has been served personally to all. Acknowledge Paper No. 8C. No written statement filed.
The suit shall proceed ex parte. Fix 29.8.1986 for ex parte hearing on the request of the plaintiff.
Sd. Illegible 22.8.1986
39. It is evident that summons had been issued fixing 21.8.1986 for hearing but it was a holiday, hence the case was taken up on 22.8.1986. On that date, the case was called out and Court considered the fact that the summons had been served personally to all as well as acknowledgment paper No. 8C, but no written statement was filed and thereafter passed the order dated 22.8.1986 that suit shall proceed ex parte on 29.8.1986.
40. It is crystal clear from the aforesaid order that the Court did not apply its mind on 22.8.1986 and only noted that neither anyone had appeared on behalf of the tenant nor written statement had been filed. Neither any issues were framed nor the Court applied its mind to the facts of the case on 22.8.1986. It is apparent from the order, the case was in fact adjourned to 29.8.1986 for expedite hearing, which firmly establishes that no hearing in fact was done on 22.8.1986. Moreover, the date in the summon for hearing was 21.8.1986, which was a holiday as such, when the case was taken up on 22.8.1986, another date i.e., 29.8.1986, was fixed ordering that the case will proceed ex parte for hearing on that date.
41. The courts below have wrongly recorded concurrent finding of fact that the date of hearing, in the circumstances, was 22.8.1986. To my mind, in the facts and circumstances of the case and in view of the law, as discussed above, the orders passed by the court below holding 22.8.1986 as the first date of hearing suffer from illegality and error apparent on the face of record.
42. The findings of facts recorded by the courts below, in the circumstances, are liable to be set aside.
43. The writ petition succeeds and is allowed. The Judgment and order dated 14.9.1993 (Annexure-8 to the writ petition) as well as order dated 12.5.2005, passed in J.S.C.C. Revision No. 19 of 1993 are quashed. No order as to costs.