1. Heard Sri Pankaj Agarwal, learned counsel for the petitioner and Sri H.P. Singh and Divakar Rai Sharma, learned counsel for the respondents.
2. The writ petition is directed against judgment dated 15th April, 1999 of Small Cause Court, Aligarh decreeing respondents-landlords' SCC Suit No.9/93 [Smt. Sarvesh Jain (since deceased) & Ors. Vs. Sri Ravi Kumar] directing for ejectment of petitioner and realization of arrears of rent with mesne profits and revisional order dated 27th November, 1999 passed by District Judge, Aligarh dismissing petitioner's S.C.C. Revision No.20/1999.
3. The facts in brief giving rise to the present dispute be stated as under:-
4. The dispute relates to residential building bearing municipal no.9/6 situated at Modi Khana, Aligarh. It was earlier owned by Smt. Chameli Devi who transferred the said accommodation vide sale deed dated 17th January, 1991 in favour of Smt. Sarvesh Jain, respondent no.3 (since deceased and her legal heirs have been impleaded as respondent no.3/1 to 3/5). The accommodation in question was under tenancy of petitioner's father even prior to 17th January, 1991.
5. The respondent no.3 gave a notice to petitioner on 29th October, 1992 informing transaction of sale of house in dispute coupled with the fact that she has now become owner of said property. The petitioner gave reply dated 5th November, 1992 demanding a copy of sale deed so as to verify information given by respondent No.3.
6. The respondent No.3, however, filed SCC Suit No.9/93 in the Court of Small Cause, Aligarh for ejectment of petitioner-tenant from premises in dispute and realization of arrears of rent and mesne profit. The suit was directed to proceed ex parte on 20th October, 1993 and an ex parte decree was passed decreeing suit on 28th October, 1993.
7. The petitioner filed an application for restoration of suit and setting aside ex parte decree on the ground that summons were never served upon him and he did not get any information about aforesaid suit. The aforesaid application was entertained by Trial Court on 8th December, 1993. The petitioner also deposited Rs.700/- in purported compliance of requirement of Section 17 of Provincial Small Cause Court Act, 1887 (hereinafter referred to as "Act, 1887") and submitted receipt of payment in Trial court. Notices were issued to respondent No.3 and after considering objection filed by plaintiff-landlord, the Trial Court rejected petitioner's application for setting aside ex parte decree vide order dated 11th September1995/8th November, 1995.
8. Aggrieved thereto petitioner came in SCC Revision No.36 of 1995 which was allowed by 8th Additional District Judge, Aligarh vide judgment dated 26th November, 1996 and ex parte decree was set aside on the ground that summons were never served upon defendant tenant, hence Trial Court had no jurisdiction to proceed ex parte in view of Order IX, Rule 6 C.P.C., hence ex parte decree being wholly without jurisdiction, was liable to be set aside. The aforesaid judgment dated 26th November, 1996 attained finality. The suit proceeded thereafter before Trial Court after return of record. The Trial Court again decreed the suit vide judgment dated 15th April, 1999 and revision thereagainst has been rejected by District Judge, Aligarh vide judgment dated 27th November, 1999. The two judgments are impugned in this petition.
9. Sri Pajkaj Agrawal, learned counsel for the petitioner submitted that deposit made by petitioner under Section 17 of Act, 1887 was liable to be adjusted and accounted for compliance of Section 20(4) of Act, 1972 but both the Court's below have declined to do so observing that payment under Section 17 of Act, 1887 is not liable to be adjusted in order to consider whether there is any compliance of Section 20(4) of Act, 1972 or not. He relied on a decision of this Court in Prem Chandra Mishra Vs. IInd Additional District Judge, Etah & Ors., 2008(3) ARC 928. He, therefore, submitted that in fact there was no default and Courts below have erred in decreeing the suit.
10. Sri Divakar Rai Sharma and Sri H.P.Singh, learned counsel appearing for respondents on the contrary submitted that firstly deposit made under Section 17 of Act, 1887 cannot be adjusted for the purpose of Section 20(4) and, secondly; that deposit was not made unconditionally but on the contrary petitioner contested the suit by filing an application requesting Trial Court not to allow plaintiff -landlord to withdraw the amount deposited under Section 17 of Act, 1887 and therefore it cannot be said that petitioner had complied with Section 20(4) of Act, 1972.
11. They further submitted that both the Courts below have held that petitioner was in arrears of rent and did not deposit entire dues as contemplated in Section 20(4) Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) (hereinafter referred to as "Act, 1972") on the first date of hearing hence liable for ejectment.
12. At the outset it may be placed on record that none of the parties could not inform the Court what would have been the actual amount which petitioner-tenant would have been required to deposit on the first date of hearing to ensure compliance of Section 20(4) of Act, 1972.
13. In this matter, to my mind, there are three aspects which needs consideration. Firstly; whether amount deposited under Section 17 of Act, 1887 is liable to be adjusted towards requirement of deposit under Section 20(4) of Act, 1972 and; secondly; even if such adjustment is permissible, can it be said that amount deposited was the total amount which the petitioner tenant was supposed to deposit in order to comply Section 20(4) of Act, 1972 and thirdly; whether such amount stood deposited on the first date of hearing. In other words, in the facts and circumstances of this case, what was the date of first hearing before the Trial Court.
14. The date of first hearing has been well explained in the context of Section 20(4) of Act, 1972 and explanation thereof in a catena of decisions and the same has also been considered by this Court in Writ Petition No.65093 of 2011 (Satya Narain Tiwari Vs. Pt. Neelkanth Trust) decided on 16.07.2012 wherein this Court has said:
"24. Thus the effective date of first hearing of the suit should be, when the Court proposed to apply its mind. Therefore it would be the date fixed earliest for final disposal/hearing and not adjourned for reasons attributable to the defendant-tenant. There are certain decisions of this Court also and I need not to burden this judgment giving in detail all such judgments except of making reference of some of those hereto i.e Mohd. Salim alias Salim Uddin Vs. 4th Addl. District Judge, Allahabad & Ors. 2001(2) AWC 1468, Har Prasad Vs. Ist A.D.J., Etah 2004 (56) ALR 460, Jai Ram Dass Vs. Iind Addl. District Judge, Jhansi & Ors. 2004(57) ALR 233, Chaturbhuj Pandey Vs. VI A.D.J., Kanpur & Ors. 2005 (60) ALR 697, Hira Lal & Ors. Vs. Ram Das 2006 (3) ARC 657 and Saadat Ali Vs. J.S.C.C., Moradabad & ors. 2006 (2) ARC 208."
15. The suit was initially decreed ex parte but ex parte decree was set aside by Revisional Court recording a positive finding that service of summons upon defendant tenant was not proved and in absence of any service of summons upon the defendant in the suit, Trial Court possessed no jurisdiction to proceed ex parte under Order IX, Rule 6, hence ex parte decree was without jurisdiction. It lays down a situation where till the date of ex parte decree, summons of the suit were not served upon the defendants hence ex parte decree was illegal, without jurisdiction and it was set aside. The matter thereafter came back to Trial Court for further proceedings.
16. On coming back what shall be the date of first hearing has to be examined by the Court below in the light of proceedings and orders passed by Trial Court after the revisional judgment dated 26.11.1996. However, both the Courts below have not considered the matter from this angle. Therefore, I do not find it appropriate to record final opinion at this stage as to what is the date of first hearing in this case at this stage but in my opinion this matter should be remanded to the Trial Court to look into this aspect of the matter.
17. The second aspect is adjustment of amount deposited under Section 17 of Act, 1887 for the purpose of Section 20(4) of Act, 1972.
18. The issue is now covered by this Court's decision in Prem Chandra Mishra (supra) where this Court, following earlier decision in Lachhi Ram Vs. First Additional District Judge, Meerut and others, 1984(1) ARC 4; Shiv Shankar Singh Vs. IVth A.D.J. Kanpur, 1997 (1) ARC 491, in paras 18, 22 and 24 of the judgment held as under:
"18. The object behind proviso of Section 17(1) of Provincial Small Causes Courts Act 1887 is that unscrupulous tenants against whom rent is due, who do not appear on the date fixed may not take advantage of not paying rent and thereby causing harassment of the landlord. The purpose of adding this proviso to Section 17 is to protect the interest of landlord from further harassment and to secure and ensure payment of rent and to put tenant to term to legally make said deposits. Idea behind said provision is to strike a balance between rival interests so as to be just to law. In case of exparte decree tenant has been given liberty to move application under Order IX Rule 13 of Code of Civil Procedure on the ground provided therein but under proviso to Section 17 (1) of Provincial Small Cause Courts Act 1887 condition has been imposed so that tenant does not take undue advantage for non-appearance and in this background as condition precedent is it has been made obligatory on the part of the tenant to deposit the amount which is due so that in the event an application for setting aside decree is dismissed the decree in question may be satisfied from the amount deposited or from the security furnished by the judgment debtor."
"22. As already discussed above, deposits made under sub-Section (4) of Section 20 and Section 30 of U.P. Act No. XIII of 1972 and under Order XV Rule 5 of C.P.C. are in custody of court, and said amount at any point of time can be withdrawn by the landlord. Said amount already deposited and lying with the Court at the point of time of presenting application, can be treated as deposit in the Court, the amount due from him under the decree or in pursuance of the judgment and mere information is good enough on this score, as records of deposit are already with the Court, and can be very well verified by the Court. If the deposits already made are of amount due and over and above the amount due, the application under Order IX Rule 13 will not be non-suited for non compliance of proviso of Section 17(1) of Provincial Small Causes Courts Act and in case it is short of the amount due application will have to be necessarily dismissed as not competent and maintainable provided at the point of time of presenting application entire amount has not be deposited. In other category of cases, i.e. where tenant intends to furnish security, therein prior application has to be there as per Kedarnath's case (supra)."
"24. In the present case admitted position is that after ex pate decree has been passed application to recall ex-parte decree was made on 24.05.1993 and alongwith the same application under the proviso to Section 17(1) has not at all been moved. Said application was admittedly moved subsequent to the same on 25.02.1994 and in the said application mention was made by him that he has already deposited the rent, cost of suit and interest of JSCC suit much earlier before passing of exparte decree. Said application which has been moved on behalf of tenant was not stating any thing new rather it was sought to be stated by the tenant that in the present case decretal amount is already with the court as he has already paid arrears of rent, cost of suit and interest of JSCC suit much before passing of exparte decree and same may be taken into consideration while entertaining application. Distinction will have to be drawn qua the cases wherein entire amount as mentioned in the proviso to Section 17 of Provincial Small Cause Courts Act 1887 already stands deposited even before passing of exparte decree. In the said event of entire amount in question being prior deposited, information has to be furnished before Judge Small Causes Court, then said fact on verification can be treated as sufficient compliance as provided under the proviso to Section 17 (1) of Provincial Small Cause Courts Act 1887, inasmuch as nothing new has been sought to be done after expiry of the period rather only information has been furnished that said condition has already been complied with and interest of landlord is fully protected as per object and the purpose of Section 17. Tenant cannot be asked to make deposit for second time and furnish security for the second time in the backdrop that prior to passing of decree entire amount due under decree or judgment has already been deposited. Judge Small Causes can make inquiry in the matter of this fact on being apprised as to whether decretal amount is there or not but where decree in question has been passed and decretal amount mentioned as above is not at all there then law laid down by Hon'ble Apex Court in Kedarnath's case (supra) has to be followed in its word and spirit. Facts narrated above clearly makes Kedarnath's case (supra) distinguishable. In the facts of the present case as finding of fact is that entire amount has been deposited which was over and above to the decretal amount and Revisional Court has allowed the same then there being no failure of justice, then there is hardly any scope of interference."
19. Sri Divakar Rai Sharma and Sri H.P.Singh, learned counsel appearing for respondent-landlord could not dispute that on the question of adjustment of amount paid under Section 17 of Act, 1887 for the purpose of compliance of Section 20(4) of Act, 1972, the aforesaid judgment is directly in favour of petitioner and they could not place before this Court any judgment taking an otherwise view and also could not pursue this Court to take a different view. I am, therefore, in respectful agreement of the aforesaid decision. In my view, Courts below have erred in law in taking a different view that deposit made under Section 17 of Act, 1887 cannot be adjusted for the purpose of compliance of Section 20(4) of Act, 1972.
20. However, this is not sufficient for the reason that under Section 20(4) of Act, 1972, tenant has to deposit the amount of rent, expenses of suit, counsel fee etc. Whether amount deposited by petitioner under Section 17 of act, 1887 satisfy the said requirement of entire deposit under Section 20(4) of Act, 1972 even after giving due care to the petitioner of such deposit is not clear from the record for the reason that this aspect has not been addressed by the Courts below, which justify remand to the Trial Court.
21. The third aspect, whether deposit made can be treated to be an unconditional deposit or not, in case it is found that the amount, which ought to have been deposited towards compliance of Section 20(4) of Act, 1972 in the present case, stood actually deposited by the petitioner on the first date of hearing. On this aspect also I do not find any categorical discussion and finding on the part of Courts below and therefore on this aspect also, in my view, the matter should be examined by Trial Court which would obviously be necessary when the earlier two aspect are found adjudicated in favour of the petitioner-tenant. In case he fails on the earlier aspect, the third aspect would be redundant.
22. Be that as it may, since the judgment impugned in this writ petition for the reasons and discussion made above cannot sustain, the same are set aside.
23. The writ petition is allowed. The impugned judgments dated 15.4.1999 and 27.11.1999 (Annexure II and I to the writ petition) are hereby set aside. The matter is remanded to the Trial Court with the direction to decide respondent-landlord's suit afresh in the light of the observations made above and in accordance with law, expeditiously, and in any case within three months from the date of production of a certified copy of this order.
24. In the facts and circumstances of the case, there shall be no order as to costs.
Order Date :- 14.8.2012 KA