JUDGMENT Tarun Agarwala, J.
1. The respondent Nos. 3 and 4 filed a suit for ejectment and for realization of rent and damages alleging that the petitioner was in arrears of rent since 1.1.1978 and that the water charges was also due against him from 1.10.1973. The respondents served a notice of demand for arrears of rent and also terminated the tenancy. Inspite of the service of the notice, neither the arrears of rent was paid nor the petitioner vacated the shop in question.
2. The Judge Small Cause Court issued summons fixing 26.5.1982. According to the petitioner, the said summons were duly received, but was not accompanied by a copy of the plaint nor any date was indicated in the summons for appearance. The petitioner, thereafter, made an enquiry and appeared on the next date, i.e., 21.7.1982 and moved an application indicating that he was not served with a copy of the plaint nor any date was indicated in the summons and, therefore, he could not appear earlier. The application of the petitioner was allowed and the respondent Nos. 3 and 4 were directed to supply a copy of the plaint. The Court fixed 27.8.1982 for filing the written statement. On 27.8.1982, the Presiding Officer was on leave and, accordingly, the case was adjourned for final disposal on 22.9.1982. On 22.9.1982, the petitioner moved an application seeking further time to file the written statement, which was not opposed. The said application was allowed by the Court and the next date fixed was 22.10.1982. The petitioner deposited the entire arrears of rent, damages, etc. as required under Section 20 (4) of U. P. Act No. 13 of 1972 on 22.10.1982. Thereafter, the petitioner moved an application stating therein that since he had deposited the entire amount of arrears of rent etc. on the first date of hearing, the benefit available under Section 20 (4) of the Act should be given to him and that he should be relieved from the liability of being ejected from the premises in question and the suit should be dismissed. This application was rejected by the Judge Small Cause Court vide an order dated 26.8.1983.
3. Aggrieved by the aforesaid order, the petitioner filed a revision under Section 25 of the U. P. Provincial Small Cause Courts Act. The revisional court by judgment dated 12.7.1984, rejected the revision.
4. Both the courts below held that the first date of hearing was 26.5.1982, which was the date fixed in the summons. Since the petitioner did not deposit the amount on the first date of hearing, the benefit available under Section 20 (4) could not be granted.
5. The petitioner-tenant has now filed the present writ petition. Heard Sri S.K. Shukla, the learned counsel for the petitioner and Sri P.K. Mishra, the learned counsel for the respondents.
6. The learned counsel for the petitioner submitted that the petitioner had deposited the entire amount on 22.10.1982, which was prior to the first date of hearing and, therefore, the deposit should be treated within time and the benefit available under Section 20 (4) of Act No. 13 of 1972 should be granted.
7. On the other hand, the learned counsel for the respondents contended that the first date of hearing was 26.5.1982, which was the date fixed in the summons. Alternatively, the first date of hearing would be 22.9.1982, which was the date fixed for final disposal of the case. The learned counsel for the respondents submitted that the arrears of the rent was neither deposited on 26.5.1982 nor deposited on 22.9.1982 and therefore, the deposit made on 22.10.1982 could not be treated to be a valid deposit on the first date of hearing.
8. The question that arises for consideration is, whether the petitioner is entitled to avail the benefit of Section 20 (4) of U. P. Act No. 13 of 1972. Section 20 (4) of the Act states as under :
"4. In any suit for eviction on the ground mentioned in clause
(a) of Sub-Section (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 (such 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 his liability for eviction on that ground :
Explanation.-For the purpose 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."
9. The expression "at the first hearing of the suit" has been the subject-matter of various decisions. In Siraj Ahmad Siddiqui v. Prem Nath Kapoor, 1993 (4) SCC 406, the Supreme Court held that the date of first hearing of the suit would be the date on which the Court proposes to apply its mind for the purpose of framing the issues to be decided in the suit. The Supreme Court further held that the first hearing of the suit would not mean the date for filing the written statement and accordingly came to the conclusion "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 the issues, if necessary."
10. Similar view was again reiterated by the Supreme Court in Advaita Nand v. Judge Small Causes Court, Meerut and others. 1995 (1) ARC 563.
11. The learned counsel for the petitioner has also relied upon a decision in Mam Chand Pal v. Smt. Shanti Agarwal, 2002 (2) AWC 1257 (SC) : AIR 2002 SC 955, in which the Supreme Court held :
"4. So far the question as to the meaning of the date of first hearing is concerned, the position stands well-settled that it is the date on which the Court applies its mind to the facts and controversy involved in the case. Any date prior to such a date would not be date of first hearing. For instance date for framing of issues would be the date of first hearing when the Court is to apply his mind to the facts of the case. As it relates to proceedings under the Small Cause Courts Act, there being no provision for framing of issues any date fixed for hearing of the case would be the first date for the purpose. The above stated position is clear from a catena of cases of the Allahabad High Court and some decisions of this Court also. In Ved Prakash Wadhwa v. Vishwa Mohan, AIR 1982 SC 816, this Court held that the date of first hearing would not be before a date fixed for preliminary examination of parties and framing of issues. It has further been held that if the amount is deposited before the date of first hearing, it would amount to compliance with the relevant provision of the Act. In Sudarsharn Devi and Anr. v. Sushila Devi and Anr., 1999 (4) AWC 3484 (SC) : 1999 (8) SCC 31, the service of notice was by publication, hence tenant applied for copy of the plaint which was furnished and fresh date for filing W.S. and hearing was fixed. The Court considered the provisions of Sub-Section (4) of Section 20 of the Act alongwith Explanation (a) as well as a series of earlier decisions and held that the date fixed for hearing of the matter was the date of first hearing and not the date fixed for filing of the written statement. It has been observed that the emphasis in the relevant provision is on the word 'hearing'. The decision in the case of Ved Prakash (supra) was also relied upon. In yet another case Advaita Nand v. Judge, Small Cause Court, Meerut and Ors., 1995 (3) SCC 407, the dates were fixed for filing of the written statement and later for hearing of the case after furnishing of a copy of the plaint, 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."
12. From the aforesaid, it is clear that the first date of hearing would be the date when the Court proposes to apply its mind for the framing of the issues, etc. A date fixed for filing of the written statement, etc. could not be treated as the first date of hearing of the suit. On the other hand the learned counsel for the respondents relied upon another decision of the Supreme Court in Ashok Kumar and Ors. v. Rishi Ram, 2002 (3) AWC 2428 (SC) : AIR 2001 SC 2520, in which it has been held that the date of the first hearing of the suit was the date when the Court proposes to apply its mind for framing the issues and that it was not the date when it actually applied its mind. The learned counsel for the respondents, therefore, submitted that the court below by an order dated 27.8.1982, fixed 22.9.1982 for hearing and this date became the date when the Court proposed to apply its mind. Since the amount of rent was not deposited on 22.9.1982, no benefit could be granted to the tenant.
13. Applying the aforesaid ratio from the aforesaid judgments of the Supreme Court, this Court finds that the first date of hearing could not be the date so fixed in the summons, i.e., 26.5.1982. The date fixed in the summons was for filing the written statement and, therefore, the said date cannot be the first date of hearing. In paragraph 5 of the writ petition, the petitioner stated that on 22.8.1982, the Presiding Officer was on leave and therefore, the case was adjourned till 22.9.1982. This fact has not been denied by the respondents in paragraph 5 of the counter-affidavit. Therefore, it could not be said that 22.9.1982 was fixed for final hearing and that the Court proposed to apply its mind for the first time on 22.9.1982. Further, the petitioner filed an application on 22.9.1982 praying for time to file the written statement, which was not opposed and the application was allowed and further time was granted by the Court to the petitioner to file written statement by 22.10.1982. On 22.10.1982, the petitioner deposited the rent, etc.
14. In my view, the petitioner had deposited the rent and damages etc. on or before the first date of hearing and, therefore, would be entitled to the benefit of Section 20 (4), in the event of depositing the entire amount of rent, damages, etc.
15. In view of the aforesaid, the writ petition is allowed. The order and judgment dated 26.8.1983 and 12.7.1984, are quashed. In the circumstances of the case there shall be no order as to cost.