1. Heard Sri Kailash Nath Kesharwani, learned counsel for the petitioner and Sri Anil Kumar Sharma, learned counsel for the respondents. Since pleadings are complete, as requested and agreed by learned counsel for the parties, I proceed to decide the matter under the Rules of the Court at this stage.
2. The petitioner is a tenant in the premises i.e. second and third storey of a house situated at Mohalla Akalganj, District Etawah. S.C.C. Suit No.33 of 1987 was filed by respondent in the Court of Judge, Small Causes, Etawah vide plaint dated 10.8.1987 alleging that petitioner-tenant has committed default in payment of rent since 1st May, 1976 till date. A registered notice was issued on 17/18.2.1987 demanding rent and terminating tenancy. The notice was served upon the petitioner-tenant on 21.2.1987. He replied by advocate's notice dated 9.3.1987 denying the very ownership of respondent on the premises in question and disputed relationship of landlord and tenant. Another notice was served upon petitioner vide registered letter dated 21.3.1987 terminating his tenancy on the ground of denial of ownership and the said notice was also served on 23.3.1987.
3. Though the tenant was alleged to be in default of payment of rent since 01.5.1976 but in the suit filed, the arrear of rent was claimed only for the preceding three years. The relief of eviction of tenant was also sought. The suit was registered issuing notice fixing 25.9.1987.
4. It is not in dispute that on 25.9.1987, employees of Court were on strike. Thereafter on 3.10.1987, the petitioner filed written statement dated 25.9.1987 along with an application No.6-C seeking permission of the Court below to pay rent by Tender. This application was allowed on 8.4.1988 permitting petitioner-tenant to make payment of rent by Tender within a week on its own risk. The rent for the period of 1.5.1976 to 31.3.2000 was deposited by Tender dated 23.5.2000 (Annexure 4 to the writ petition).
5. In the Court below the petitioner sought benefit of Section 20(4) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act 1972") alleging that he deposited the entire rent and other charges on the "first date of hearing" but this contention has not found favour in both the Courts below and they have recorded findings against him.
6. Sri Keserwani, learned counsel appearing for the petitioner contended that 25.9.1987 was the "first date" fixed after issuing notice but on that date there was a strike of employees. There was no function, administrative or judicial. Hence it cannot be said that 25.9.1987 was the "first date of hearing". On the very next date i.e. 3.10.1987 he submitted application seeking permission of trial Court for payment of rent as demanded by landlord by Tender but the said application was deferred on about 3 or 4 occasions and it is only on 8.4.1988 the same was allowed. The petitioner complied the same. Still he has not been given the benefit of Section 20(4) against eviction. It is said that both the Courts below have erred in law in deciding this issue against him. In support, he placed reliance on Apex Court's decision in Ved Prakash Wadhwa Vs. Vishwa Mohan 1981 ARC 1, Bimal Chand Jain Vs. Sri Gopal Agarwal 1981 ARC 463 and two Single Judge judgment of this Court in Ram Autar Dubey Vs. VIIth Additional District Judge, Gorakhpur & others 1985 (2) ARC 461; and, Gulam Mohinuddin Khan Vs. 1st Additional District Judge, Rampur & Ors. 1996 (2) ARC 255.
7. Sri Anil Kumar Sharma, learned counsel appearing for the respondent-landlord however submitted that even if what is contended by learned counsel for the petitioner is accepted to the extent that 25.9.1987 may not be considered to be "first date of hearing", admittedly when application of the petitioner was allowed on 8.4.1988, it was incumbent upon him to make deposit in order to get the benefit of Section 20(4) of Act 1972 but no such compliance was made and it is only after about 13 years i.e. on 23.5.2000 entire arrears of rent was deposited along with interest and expenses. This cannot be said to have been done on the "first date of hearing", inasmuch as, it cannot be said that the "first date of hearing" got extended till the year 2000. The Courts below thus have rightly held that petitioner was disentitled for benefit under Section 20(4) of Act 1972 though default in payment of rent since May, 1976 is virtually admitted.
8. The fact, which is not disputed in this case, is that summons issued to the petitioner by trial Court mentioned the date of appearance of defendant as 25th September, 1987. It is also not in dispute that on 25th September, 1987 the Court could not function due to strike of employees. The case was taken up then on 3rd October, 1987 when tenant presented his application No. 6-C and also filed an application seeking permission of trial Court to pay the rent etc. by Tender. On the aforesaid application, trial Court could pass order on 8th April, 1988. It allowed a week's time to the petitioner tenant to make payment, as requested by him in the application 6-C submitted on 3rd October, 1987
9. For consideration of petitioner's application 6-C, the trial Court fixed 12th October, 1987 whereafter it was adjourned to 4th December, 1987 and 5th February, 1988. The petitioner filed his written statement on payment of cost on 5th February, 1988. However, his application 6-C was heard by trial Court and after hearing both the sides the same was allowed on 8th April, 1988 permitting him to make payment by Tender within a week. The next date fixed was 8th July, 1988.
10. However, this order dated 8.4.1988 was not complied with. No payment was made as directed on 8th April, 1988. On the contrary, arrears of rent, interest, litigation expenses etc. were paid on 23rd May, 2000 as is evident from Annexure 4 to the writ petition.
11. Learned counsel for the petitioner relied on certain Tenders, said to have been submitted by him in December, 1987 and onwards making payment of regular rent commencing from 11th August, 1987 and onwards on different dates and copies of these tenders collectively have been filed as Annexure 7 to the writ petition. However, the said payments do not include entire arrears of rent, interest and cost of litigation as provided in Section 20(4) of Act, 1972.
12. From record it is evident that such payment for the first time was made by petitioner on 23rd May, 2000 and not before that.
13. The petitioner's submission is that 'first date of hearing' should be considered sometimes in May, 2000 when he deposited the entire amount as contemplated under Section 20(4) vide tender dated 23.5.2000 (copy of tender has placed as Annexure 4 to the writ petition).
14. The only question up for consideration is, "What is the date of first hearing in this writ petition".
15. Learned counsel for the respondent-landlord submitted that even if 25th September, 1987 may not be treated to be the date of first hearing, and giving maximum latitude to the tenant if it is taken when the Court applied its mind for the first time, the date of first hearing even in that case cannot be beyond 8th April, 1988 or 15th April, 1988 which would take into consideration period of one week allowed by trial Court for making payment to the petitioner.
16. The expression "first hearing" has been explained in Section 20(4) Explanation (a) and reads as under:
"the expression "first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant."
17. This expression has been considered by Apex Court in Ved Prakash Wadhwa (supra). It was held that the date of "first hearing would not be before a date fixed for preliminary examination of parties and framing of issues". Similar was the view taken in an earlier judgment also in Advaita Nand Vs. Judge, Small Cause Court, Meerut, 1995 (3) SCC 407.
18. A three-Judge Bench of Apex Court also considered this issue in Siraj Ahmad Siddiqui Vs. Prem Nath Kapoor, 1993 (4) SCC 406 and said as under "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) mean 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 proceeding 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."
19. Again it was considered in Sudarshan Devi Vs. Sushila Devi, 1999(8) SCC 31 and held that the date fixed for hearing of the matter is the date of first hearing and not the date fixed for filing of written statement. The Court observed that emphasis in the relevant provision is on the word "hearing". The Court also relied on its earlier decision in Ved Prakash Wadhwa (supra).
20. The matter again came to be considered in Mam Chand Pal Vs. Shanti Agarwal (Smt.), 2002 (3) SCC 49. Therein the suit was filed on 5.12.1988 and summons were issued fixing 19th January, 1989 for filing of written statement and 27th January, 1989 for hearing. The defendant was not served. The order was passed for service of notice on the defendant by publication fixing 3.7.1989 for hearing. By mistake in the publication, the date of hearing was shown as 26.4.1989 instead of 3.7.1989. On 26.4.1989, Presiding Officer was not available having proceeded for training. The case was thereafter adjourned to 11.5.1989 and further gone on adjournment for one or the other reasons on several dates. The Court held that in the present case 26th April, 1989 would not be regarded as "first date of hearing" since on that date the Presiding Officer was not available. In para 7 the court said, "where the Court itself is not available it could not be treated as the date of first hearing".
21. In Ashok Kumar & Ors. Vs. Rishi Ram and others, AIR 2002 SC 2520, the Court noticed distinction between the phraseology in Order XV, Rule 5 C.P.C. and Explanation (a) to sub-section (4) of Section 20 of Act, 1972 and in para 8, said:
"Rule 1 of Order V speaks of issue of summons. When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day specified therein. Rule 2 thereof enjoins that the summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Rule 5 of Order V says that 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 which shall be noted in the summons. However, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. It may be apt to notice here that Sub-section (3) of Section 20 of the Act was deleted in U.P. Civil Laws Amendment Act, 1972 with effect from September 20, 1972 and Rule 5 was inserted in Order XV of the Civil Procedure Code which deals with disposal of the suit at the first hearing. Explanation 1 to Rule 5 of Order XV defines the expression "first hearing" to mean the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. But the said expression, as noticed above, is defined in Clause (1) of Explanation to Sub-section (4) of Section 20. Section 38 of the U.P. Act says that the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act or in Code of Civil Procedure, therefore, the definition contained in Clause (a) of Explanation to Sub-section (4) of Section 20 of the Act will prevail over the definition contained in Rule 5 of Order XV of the Code of Civil Procedure as applicable to the State of U.P. It is too evident to miss that in contra-distinction to the "filing of written statement" mentioned in the definition of the said expression contained in Rule 5 of Order XV, the language employed in Clause (a) of the Explanation to Section 20(4) of the U.P. Act, refers to 'the first date for any step or proceeding mentioned in the summons served on the defendant'. In our view those words mean the first date when the court proposes to apply its mind to identify the controversy in the suit and that stage arises after the defendant is afforded an opportunity to file his written statement."
22. In para 12 of the judgment in Ashok Kumar (supra), considering the above observation and also relying on its earlier decisions in Sudershan Devi (supra), Advaita Nand (supra) and Siraj Ahmad Siddiqui (supra), the Court said:
"Now adverting to the facts of the case on hand it has been noticed above that the suit was posted on May 20, 1980 for final disposal but that date cannot be treated as the first hearing of the suit as the Court granted time till July 25, 1980 to the tenant for filing written statement. 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."
23. It also held that once the date of "first hearing" is determined and thereafter the case is adjourned, the date of first hearing of the suit would not change on every adjournment of the suit for final hearing.
24. Thus the effective date of first hearing of the suit sould 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.
25. Applying the dictum laid down in the above authorities, it is evident from the order sheet that written statement was taken on record by the Court below on 5th February, 1988 and thereafter 8th April, 1988 was fixed for final hearing. Therefore it is 8th April, 1988 which, in my view, would be the date of "first hearing" by which time the petitioner ought to have make payment in order to claim benefit under Section 20(4) C.P.C. which admittedly he has failed.
26. Moreover, even if I consider the order dated 8th April, 1988 passed by Court below permitting the petitioner to tender amount of rent [by allowing his application 6-C] in one week, and further indulgence is allowed to the petitioner, that would also make no difference in the present case since in the entire month of April, 1988 no compliance was made by the petitioner. The actual payment for the first time was made by him only on 23.5.2000, which is much beyond the date of "first hearing", which according to me would be 8th April, 1988.
27. Hence default on the part of petitioner stand proved and also that he did not pay entire rent etc on first date of hearing. The findings recorded by Courts below against the petitioner therefore cannot be said erroneous in any manner.
28. The judgment cited by petitioner in Ved Prakash Wadhwa (supra) has already been discussed above but that does not lend any support to him in any manner. So far as rest of the judgments in Bimal Chand Jain (supra) of Apex Court and two jugments of this Court i.e. Ram Autar Dubey (supra) and Gulam Mohiuddin Khan (supra) are concerned, having gone through the same, I do not find that these judgments reflect light upon the question as to what would be the date of first hearing in the present case. Hence these judgments have no application to the present case.
29. No other argument advanced.
30. In the result the wit petition being devoid of merits is dismissed.
31. Interim order, if any, stands vacated.
Order Date :- 16.7.2012 KA