JUDGMENT S.U. Khan, J.
1. The only point involved in this writ petition relates to interpretation of "first hearing" as given in the Explanation to Section 20 (4) of U.P. Rent Control Act, (U.P. Act No. 13 of 1972) hereinafter referred to as Act, and its applicability upon the facts of the instant case.
2. The suit giving rise to the instant writ petition was filed by landlady respondent No. 3 against the tenant petitioner on 8.9.1993. The suit was registered as S.C.C. Suit No. 162 of 1993 on the file of J.S.C.C. Allahabad (Later on suit was transferred to Additional J.S.C.C.). Prior to filing of the suit tenancy was determined through notice dated 13.4.1993. served upon the tenant on 28.4.1993. In the notice as well as in the plaint, rent from February, 1984 was demanded. Tenant had already deposited the rent from February, 1984 till April, 1992 under Section 30 of the Act. After filing of the suit summons were issued to the defendant fixing 30.11.1993 as the date of hearing. On 30.11.1993. the presiding officer was on leave however defendant appeared and filed application praying for supply of copy of plaint. Thereafter on 18.12.1993 which was the date fixed on 30.11.1993 by the Reader of the Court, defendant did not appear, hence the suit was directed to proceed ex-parte, and the suit was decreed ex parte on 23.3.1994. Petitioner filed an application for restoration on 31.3.1994 and deposited an amount of Rs. 15,000 in compliance of the provisions of Section 17 of P.S.C.C. Act on 4.4.1994. On 7.4.1994 the restoration application was allowed and ex parte decree dated 23.3.1994 was set aside. Thereafter on 12.4.1994 formal order of restoration of suit on its original number was passed and 9.5.1994 was fixed for filing written statement. On 26.4.1994 tenant filed an application that only an amount of Rs. 7,624 was due against him (Rs. 6,000 as rent at the rate of Rs. 250 per month from May, 1992 to April, 1994 and Rs. 1,624 as cost of suit) hence out of the amount of Rs. 15,000 deposited by him remaining amount of Rs. 7,376 deposited in excess by him shall be returned to him. Landlord did not oppose the said application, hence it was allowed on 27.4.1994 and tenant was permitted to withdraw the amount of Rs. 7,376. However tenant did not actually withdraw the amount. On 9.5.1994 the petitioner filed written statement. On the said date the trial court recorded in the order sheet that both the learned counsel admitted that the said date was date of first hearing. Thereafter it was ordered that "fix 16.5.1994 for hearing". On 16.5.1994 the Reader of the Court recorded in the order sheet that Presiding Officer was not available due to promotion and transfer. The Reader fixed 4.7.1994 as the next date. On 4.7.1994 defendant filed an application seeking amendment in the written statement. In para 5 of the said application it was stated that "due to legal complication the defendant has not deposited an amount of Rs. 1,100 as alleged in para 19 of his written statement which needs certain amendments." In the prayer clause of the said amendment application the following amendment was sought to be made. "That in para 19 of the written statement the sentence beginning from the word "the defendant is depositing (Rs. 1,100) to Rs. 2 since September. 1987 to April 1987" be deleted and substituted by the following sentence :
"The defendant has deposited Rs. 15,000 in compliance of the provisions of Section 17 of the P.S.C.C. Act in Misc. Case No. 42 of 1994 arising out of Suit No. 162 of 1993, the same should be adjusted in the suit in compliance of the provisions of Section 20 (4) of U.P. Act No. 13 of 1972."
3. The amendment application was allowed on 5.8.1994.
4. The trial court on 23.2.1995 decreed the suit by holding that the date of first hearing was 30.11.1993. i.e., the date fixed in the summons and as by that date the entire amount due till then had not been deposited in terms of Section 20 (4) of the Act, hence suit was liable to be decreed. Against the judgment and decree dated 23.2.1995 tenant petitioner filed revision under Section 25 of P.S.C.C. Act being Civil Revision No. 121 of 1995. XTVth Additional District Judge, Allahabad through judgment and order dated 23.8.1993 dismissed the revision, hence this writ petition. The revisional court also agreed with the trial court that 30.11.1993 was the date of first hearing.
5. The revisional court observed that on 30.11.1993 Presiding Officer of the Court of Additional J.S.C.C. was on leave and Peshkar fixed 18.12.1993 as the next date. On 18.12.1993 without passing any order on the application of the tenant petitioner for supplying copy of plaint, the suit was directed to proceed ex parte.
6. The revisional court placing reliance upon an authority of the Supreme Court in S.C. Jain v. A.D.J., AIR 1989 SC 1070, held that 30.11.1993 was the date of first hearing. In the aforesaid authority of the Supreme Court it has been held that the first date fixed after setting aside of the ex parte decree and restoration of the suit is the first date of hearing. In that authority the suit had been decreed ex parte in 1975, which was set-aside on 24.3.1977. It appears that after restoration of the suit 30.8.1977 was the date fixed. The tenant deposited incomplete arrears of rent etc. on 30.5.1977. The remaining amount was deposited on 1.10.1977. The Supreme Court held that as complete deposit was not made by 30.8.1977, which was the date of first hearing, hence tenant was not entitled to the benefit of Section 20(4) of the Act.
7. In my opinion 30.11.1993 cannot be taken to be the date of first hearing as on that date neither written statement had been filed nor Presiding Officer was available. On the said date petitioner had filed application for supply of copy of plaint. If copy of plaint is not supplied to the defendant there arises no question of hearing of the suit, hence on this ground alone 30.11.1993 cannot be said to be date of first hearing [vide Shafiqur Rahman Khan v. IInd Addl. District Judge, Rarhpur, 1982 AWC 701 (DB)]. Apart from it, if on the date fixed in the summons the tenant prays for and is granted time to file written statement then the said date cannot be said to be date of first hearing.
8. Interpretation of the expression "first hearing" as used in Explanation under Section 20 (4) of the Act has engaged attention of the Supreme Court in several authorities including the following :
(1) Siraj Ahmad Siddiqui v. P.N. Kapoor, AIR 1993 SC 2525 (three Judges);
(2) Advaitdnand v. J.S.C.C., 1995 (3) SCC 407 (two Judges);
(3) Sudarshan Devi v. Sushila Devi, 1999 (4) AWC 3484 (SC) : AIR 1999 SC 3688 (two Judges);
(4) Mam Chand Pal v. Shanti Agarwal, AIR 2002 SC 955 (two Judges); and (5) Ashok Kumar v. Rishi Ram, AIR 2002 SC 2520.
9. Unfortunately in the fifth authority of Ashok Kumar decided on 8.7.2002, the authority of Mam Chand Pal at serial No. 4 decided on 14.2.2002 was not noticed. In the authority of Mam Chand Pal it has been held in para 7 that "in cases where the Court itself is not available, it would not be treated as date of first hearing." However, in the authority at serial Nos. 3 and 5 (Sudarshan Devi and Ashok Kumar) a contrary view has been taken. In Sudarshan Devi's authority in para 42 it has been held that "It is also true that on 12.4.1990 the Presiding Officer was on training but that in our view is not relevant inasmuch as there is no difficulty in depositing the rent etc. in the manner prescribed."
10. In Ashok Kumar's authority it was mentioned in para 3 that :
"After service of summons the suit was adjourned to May 20, 1980 for final disposal. On that day the tenant sought time for filing written statement so the suit was adjourned to July 25, 1980 when time was, however extended for filing written statement and the suit was posted for final disposal on October 10, 1980. The hearing of the suit was not taken up on that date as Presiding Officer was on judicial training but the tenant deposited the entire amount in demand."
Thereafter in para 12 of the said authority it was held :
"On July 25, 1980 time was extended for filing written statement and the suit was again adjourned for final disposal to October 10, 1980. Inasmuch as after giving due opportunity to file written statement, the suit was posted for final disposal on October 10, 1980, it was that date which ought to be considered as the date fixed by the Court for application of its mind to the facts of this case to identify the controversy between the parties and as such the date of first hearing of the suit. Admittedly on that date the appellant tenant deposited all the arrears of rent. Though the suit was again adjourned to December 5, 1980, it would be irrelevant because the date of first hearing of the suit is the date when the Court proposes to apply its mind and not the date when it actually applies its mind. It follows that the first hearing of the suit would not change on every adjournment of the suit for final disposal. The effective date of the first hearing of the suit on which the Court proposed to apply its mind, on the facts of the case, was October 10, 1980 as stated above."
11. In view of the above authority of the Supreme Court of Ashok Kumar it is quite clear that 30.3 1.1993 cannot be held to be the date for first hearing as by that date plaint had not been supplied to the defendant. Applying the said authority it becomes clear that 16.5.1994 was the date of first hearing in the instant case as the said date had been fixed for hearing on 9.5.1994 on which date (9.5.1994) tenant-petitioner had filed written statement. Till 16.5.1994 tenant had not filed any application for adjustment of entire amount of Rs. 15,000 deposited by him under Section 17 P.S.C.C. Act on 4.4.1994. In fact on 16.5.1994 the amount of Rs. 7,376 out of the aforesaid amount of Rs. 15,000 was not available to the landlord as the Court by earlier order dated 27.4.1994 had permitted the defendant to withdraw the said amount of Rs. 7,376. The subsequent amendment in the written statement seeking adjustment of the entire amount of Rs. 15,000 may be taken to be a deposit made on the date of the amendment application or the date on which amendment application of the tenant was allowed. Both these dates are subsequent to 16.5.1994. In the written statement as filed on 9.5.1994 it was admitted in paragraph 9 that atleast defendant was defaulter to the tune of Rs. 1,100 which he was depositing. In fact the said proposed deposit of Rs. 1,100 was never made. It is therefore, quite clear that on 16.5.1994 complete deposit as required by Section 20 (4) of the Act had not been made.
12. Accordingly, even though I do not agree with the Courts below that 30.11.1993 was the date of first hearing still the writ petition is liable to be dismissed on the ground that 16.5.1994 was the date of first hearing but even on that date complete deposit had not been made.
13. Accordingly, writ petition is dismissed.
14. However, tenant petitioner is granted time till 31.3.2005 to vacate the premises in dispute provided that within one month from today he deposits the entire decreetal amount due till 31.3.2005 after adjusting the amount already deposited and files an undertaking before the trial/executing court to the effect that on or before 31.3.2005 he will willingly vacate the premises and hand over possession of the same to the landlord. The amount already deposited or to be deposited 'under this judgment shall at once be paid to the landlord respondent.