JUDGMENT J.C. Gupta, J.
1. This is tenant's writ petition seeking quashing of the orders dated 9.4.1997 and 15.2.1994 passed by the revisional court and the trial court respectively.
2. The dispute relates to a ground floor portion of house No. 104/458, Sisamau, Kanpur, Plaintiff respondent No. 3 brought suit for recovery of arrears of rent and ejectment against the petitioner on the ground of default in payment of rent alleging that the petitioner tenant was in arrears of rent at the rate of Rs. 320 per month from 1.7.1987 to 31.3.1989 in addition to water and drainage taxes at the rate of 18% of the rent, and the tenant failed to pay the same despite notice of demand and termination of tenancy, which was served on the tenant on 21.4.1989 by refusal. The suit was contested by the petitioner, inter alia, on the grounds that the rate of rent was only Rs. 180 per month inclusive of all local taxes and rent had been paid to the plaintiff landlady up to the period ending 30.6.1990 and accordingly the petitioner was not a 'defaulter' within the meaning of Section 20 (2) (a) of U. P. Act No. XIII of 1972 (hereinafter referred to as the 'Act'). It was also pleaded in the written statement that it was admitted to the tenant that plaintiff is the joint owner of the premises in question and the defendant is tenant of plaintiff at a monthly rent of Rs. 180. It was further pleaded that petitioner has been paying rent to the plaintiff regularly at the rate of Rs. 180 per month.
3. The trial court decreed the plaintiff suit with the findings that rate of rent was Rs. 320 per month exclusive of taxes, that the petitioner was in arrears of rent since 1.7.1987 ; that the tenant failed to clear off the arrears of rent despite service of notice of demand and termination of tenancy ; that the notice of demand and eviction was served sufficiently by refusal on the defendant petitioner ; that the tenant made himself liable to eviction under Clause (a) of Section 20 (2) of the Act by committing default within the meaning of the said clause ; that the tenant was not entitled to protection from eviction under the provisions of Section 20 (4) of the Act because the required deposit as contemplated under the said provision was not made on or before the date of first hearing and that the tenant was also liable to eviction on the ground of disclaimer of title of the landlady. In the revision filed by the petitioner, the findings of the trial court have been upheld. Aggrieved, the tenant has come up before this Court through this writ petition.
4. Learned counsel for the petitioner could not successfully assail the findings of the Courts below as far as they related with regard to the rate of rent, arrears of rent and service of notice on the petitioner. On these findings of fact, the petitioner certainly made himself liable to face a decree of eviction under the provisions of clause (a) of Section 20 (2) of the Act unless it is held that he was entitled to the benefit of the provisions of Section 20 (4) of the Act.
5. Learned counsel for the petitioner before this Court vehemently argued that the finding of the Courts below that the petitioner was not entitled to avail the protection against his eviction under the provisions of Section 20 (4) of the Act is manifestly erroneous inasmuch as both the Courts below under a mistaken view of law have taken 1.8.1990 as the date of first hearing.
6. It is not in dispute that a total sum of Rs. 20,000 was deposited on 15.10.1990 by the tenant petitioner in Court to avail the benefit of Section 20 (4) of the Act and this sum was far in excess of the total amount which was required to be deposited under the provisions of Section 20 (4) of the Act. However, the benefit of the said provisions has been denied to the petitioner by the Courts below on the ground that the said deposit was not made on or before the date of first hearing. The learned counsel for the landlady-respondent on the other hand supported the impugned judgments by urging that after the amendment in Section 20 (4) of the Act, no other view was possible than the one taken by the Courts below.
7. The short question, therefore, which arises for consideration is whether the petitioner was entitled to avail the benefit of Section 20 (4) of the Act? Sub-section (4) of Section 20 of the Act contemplates the deposit of rent on or before the date of first hearing. Till 5.7.1976, there was no definition of 'first hearing'. However, by the amending Act of 1976 an Explanation was added whereby the meaning of the expression 'first hearing' has been explained in the following words :
"For the purpose of this subsection-
(a) the expression "first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant;"
The question as to what meaning should be attached to the expression 'first hearing' came up for consideration in various cases before this Court as well as the Apex Court.
8. Dealing with the provisions of Section 20 (4) of the Act, as they stood prior to the amendment of 1976, the Supreme Court in the case of Ved Prakash Wadhwa v. Vishwa Mohan, 1981 (3) SCC 667, construing the expression "first hearing of the suit", has held :
"We may, however, add that the expression "at the first hearing of the suit" is also to be found in Order X, Rule 1, Order XIV, Rule 1 (5) and Order XV, Rule 1 of the Code of Civil Procedure. These provisions indicate that "the first hearing of the suit" can never be earlier than the date fixed for the preliminary examination of the parties (Order X, Rule 1) and the settlement of issues Order XIV, Rule 1 (5)."
9. The amended provisions thereafter came up for consideration before the Supreme Court in the case of Siraj Ahmad Siddiqui v. Prem Nath Kapoor, 1993 (2) ARC 451, and it was held there 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 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 proceeding 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, 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."
10. The same question again came up for consideration before the Apex Court in the case of Advaita Nand v. Judge, Small Causes Court, Meerut and others, (1995) 1 ARC 563. In this case, the Apex Court proceeded to refer to the position in law prior to the amendment introduced by the amending Act of 1976 and the subsequent change brought about in the statute and held that the ratio laid down in the case of Ved Prakash Wadhwa did not abrogate with the introduction of Explanation. In that case, suit for eviction on the ground of default was filed on 9.1.1990. Summons was issued fixing 20.3.1990 as the date for filing the written statement and 28.3.1990 was the date fixed for final hearing. No copy of plaint was annexed with the summons which was served on the defendant tenant. The tenant therefore, moved an application on 28.3.1990 praying for supply of copy of the plaint. Copy was supplied on that very day and then Court passed an order directing that the written statement be filed within one month and fixed July 24, 1990 for hearing. The trial court decreed the suit for eviction holding that the tenant was not entitled to get the benefit of Section 20 (4) of the Act because no deposit was made on or before 27.4.1990 which in its opinion was the date of first hearing as on that date one month's period allowed by the Court on 28.3.1990 for filing written statement had expired and the deposit made on May 2, 1990 was held to be of no consequence. The revision petition filed by the tenant was also dismissed by the Additional District and Sessions Judge and so also the writ petition by the High Court.
11. The principles laid down in Siraj Ahmad Siddiqui (supra), were approved in Advaita Nand's case, despite the fact that an attempt was made to distinguish the said decision on the ground that in the case of Siraj Ahmad, the Court was dealing with an ordinary civil suit governed by the provisions of Code of Civil Procedure requiring framing of issues whereas in the case of Advaita Nand (supra), the suit was filed before the Judge, Small Causes Court where issues are not required to be framed. The Hon'ble Supreme Court repelled that contention by observing that this difference in procedure was of no consequence and even though issues are not required to be framed and the date is fixed for the purpose of final hearing of the suit filed before the Small Causes Court but for the purpose of such suit also, first hearing of the suit would mean the date on which the Court proposes to apply its mind, i.e., the date fixed for final hearing of the suit and it cannot be the date fixed for filing of the written statement. Applying the law laid down in Siraj Ahmad Siddiqui (supra), the Apex Court held in the case of Advaita Nand (supra) that the first date of hearing of the suit was July 24, 1990 to which date the, hearing of suit was adjourned by the Court by the order dated 28.3.1990 though written statement was to be filed by 27.4.1990 and it was further held that the Courts below erred in proceedings on the basis that the date of first hearing was April 27, 1990, i.e., the date fixed for filing the written statement and since the arrears of rent had already been deposited on May 2, 1990 much before July 24, 1990, i.e., the date of first hearing, the tenant was held entitled to avail the protection of Section 20 (4) of the Act.
12. In the backdrop of this legal position. I may now indicate a few facts of the present case which may be relevant for consideration of the main controversy regarding the 'date of first hearing'.
13. Suit for recovery of rent and ejectment was filed on 23.7.1989. Summons on the defendant was neither served personally nor by refusal or affixation and it is said to have been served by publication in newspapers and the date mentioned in the publication was 6.7.1990. On this date, defendant tenant did not appear and the Court passed an order to proceed with the suit ex parte and fixed 1.8.1990. On this date, the defendant tenant appeared and moved application for recalling the order dated 6.7.1990 whereby the suit was ordered to proceed ex parte. This application was allowed on 20.9.1990 and the order dated 6.7.1990 was recalled. The Court further directed the tenant to file written statement by 21.9.1990. On 21.9.1990 lawyers were on strike. It may be relevant to mention here that while moving application on 1.8.1990 for recalling the ex parte order, an application was also moved on behalf of the petitioner for directing the plaintiff to supply him copy of the plaint. It was conceded during the course of argument before this Court that the petitioner was supplied with the copy of the plaint only on 24.9.1990 and on that date also the lawyers were on strike and the Court then fixed 15.10.1990 for hearing of suit. On this date, i.e., 15.10.1990, the petitioner deposited Rs. 20,000 in lump sum to avail the benefit of Section 20 (4) of the Act. From these facts. It is evident that in the absence of copy of plaint, written statement could not have been filed by the petitioner on 21.9.1990, the date fixed by the Court for filing the written statement and there had arisen no occasion for the Court to apply its mind to determine the points in controversy before 15.10.1990. Merely because the defendant-tenant had appeared in Court on 1.8.1990 when the suit was fixed for ex parte hearing and had moved application for setting aside the order dated 6.7.1990 and for supply of copy of plaint, this date, l.e., 1.8.1990 could not be considered as the date of first hearing specially in view of the fact that no copy of plaint had been served on the tenant petitioner till then, which was later on served on him on 24.9.1990.
Therefore, the first date of hearing could not be taken to be earlier than 15.10.1990. The view taken by the Courts below with regard to the meaning of 'date of first hearing' is palpably erroneous and unsustainable. Applying the law laid down in the aforesaid decisions. It has to be held in the present case that the first date of hearing in the suit was 15.10.1990 and not before that and the Courts below have erred in declining to extend the benefit of Section 20 (4) to the tenant by proceeding on a wrong basis that the date of first hearing in the suit was 1.8.1990.
14. Since admittedly the tenant had made a deposit of a sum of Rs. 20,000 which was far in excess of the amount contemplated under Section 20 (4) of the Act, the tenant petitioner was entitled to protection against his eviction and the Courts below have committed a manifest error of law in not extending the said benefit to the tenant petitioner. The decree of eviction passed on the ground of default is, therefore, liable to be set aside being not sustainable in law.
15. Learned counsel for the respondents placed reliance on a Full Bench decision of this Court in Sita Ram v. District Judge, Kheri and others, 1984 (1) ARC 410 and also on a decision of single Judge of this Court in Civil Misc. Writ Petition No. 10202 of 1980, decided on July 11, 1984, Nur Alam and others v. IIIrd Additional District Judge/District Judge, Aligarh and another. The learned single Judge in the case of Nur Alam placed reliance on the aforesaid Full Bench decision and held that it is the date mentioned in the summons which should be taken to be the first date of hearing for the purpose of sub-section (4) of Section 20. These decisions, in my opinion, are no longer good law in view of the subsequent decisions of Hon'ble Supreme Court.
16. The plaintiffs suit has also been decreed on the ground of disclaimer of title of the landlord. Under Clause (f) of Section 20 (2), bar for institution of suit for eviction gets removed if it is proved that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right of re-entry or condoned the conduct of the tenant. In the present case both the Courts below have held that since the petitioner in his written statement has denied the title and right of the plaintiff landlady, ground for eviction of the tenant was made out in favour of the landlady. It was argued by the petitioner's counsel that in the present case, the defendant has no where denied the title of the landlady nor has denied his character as tenant inasmuch as in the written statement. It was specifically pleaded that the tenant defendant has been paying rent to the landlady regularly and rent up to a particular period stood paid by him to her for which no rent receipts were given to him. The copy of the written statement is Annexure-2 to the writ petition. In paragraph 1 of the written statement, the tenant admitted that plaintiff is the Joint owner and landlady of the premises in question. In other paragraphs, it was also pleaded by the tenant that he has been paying rent regularly to the plaintiff landlady and rent up to 30.6.1990 has been paid to her by him. In the additional pleas again in paragraph 10, it has been pleaded in specific terms that the defendant is tenant of premises in question at the rate of Rs. 180 per month including local taxes. Initially the defendant was introduced as tenant at the rate of Rs. 80 per month thereafter the rent was enhanced to Rs. 180 per month in the year 1985 but the plaintiff (landlady) never issued rent receipts against the rent paid by the defendant to her from time to time. In paragraph 11 again, it has been pleaded that the plaintiff was paid rent by the defendant but no rent receipts have been issued to him. In paragraph 17 of the written statement, the petitioner-tenant pleaded that the accommodation in question is jointly owned by the plaintiff and her brother-in-law Brahmanand Shukla who has not been impleaded as a party as such suit of the plaintiff was bad on account of non-joinder of necessary part. .The defendant undisputedly deposited a sum of Rs. 20,000 in Court on 15.10.1990 so that the said amount could be withdrawn by the plaintiff without any reservation or condition.
17. Whether on the basis of the pleading contained in the written statement, could, it be said that the petitioner-tenant had renounced his character as tenant or has denied the title of the plaintiff landlady? In my opinion, the answer to this question will be 'No'.
18. The primary, though not the only, consideration in the construction of pleadings is not so much what a careful and skilled draftsman would intend to express if he had used the words in question, nor what meaning the Court or the opposite party ought to have put on those words, but in what sense, as a matter of fact, the words were understood. A liberal construction should, therefore, always be put on pleadings and the intention of the party pleading should be looked into. The Court should look to the substance rather than to a particular wording of a pleading. Rules of procedure are meant to subserve and not govern the cause of justice. The pleading has to be read as a whole to ascertain its true import and it is not permissible to pull out a sentence or a passage to read it out of the context, in Isolation. For this proposition reference may be made to the case of Udhav Singh v. Madhav Rao Scindia, AIR 1976 SC 744.
19. Neither in the original plaint nor by way of amendment after the filing of written statement, it was pleaded by the plaintiff that she was entitled to a decree of eviction on the ground mentioned in sub-clause (f) of Section 20 (2) of the Act. In any view of the matter, in the present case it cannot be said on the basis of the pleadings in the written statement that the tenant renounced his character as lessee of the plaintiff rather if we go through the entire averments made in the written statement, there can be no other inference that the petitioner had all throughout admitted himself to be the tenant in the property in question on behalf of the landlady and he further pleaded that he has been paying rent to the landlady regularly and rent up to the period ending 30.6.1990 stood paid to her. Merely because in addition to these pleadings, it was also averred in the written statement that the suit was bad for non-joinder of necessary party, it could not be concluded that the tenant petitioner renounced his character as tenant or denied the title of the landlady to realize rent. It may also be not out of place to mention here that neither there was any pleading nor any evidence was brought on record to show that the landlady had not waived her right of re-entry or, condoned the conduct of the tenant, ft is well-settled law that on mere denial of the title of the landlord, the tenant is not liable to eviction under clause (f) of Section 20 (2) of the Act and in order to succeed under the said clause. It is not only necessary for the landlord to prove that the tenant had denied the title of the landlord or has renounced his character as such but it is further necessary to allege and prove that the landlord has not waived his right of re-entry or condoned the conduct of the tenant. But the Courts below have not recorded any finding with regard to the latter requirement of the provisions contained in the aforesaid clause. In this view of the matter also, the decree of eviction cannot be maintained.
20. In the present case, merely on the basis of the pleadings of the parties, it could neither be held that the tenant had denied his character as such or had disclaimed the title of the landlady nor there was any evidence or other material to indicate that the landlady had not waived her right of re-entry or condoned the conduct of the tenant. It would be sheer wastage of time and money to remand the case back to the trial court for a fresh decision regarding the applicability of Clause (f) of Section 20 (2) of the Act. The facts of the case of Ram Aufar Goel v. Jagan Nath Gupta and another, 1998 (1) ARC 384, were quite different. This Court on the facts and circumstances of that case thought it proper to remand the case but in the present case, no useful purpose is going to be achieved by asking the parties to go before the Courts below for a fresh decision on the aforesaid issue as on the basis of the facts pleaded in the written statement and plaint and the material placed on record, it could not be said that the tenant petitioner had renounced his character as tenant or that he had disclaimed the title of the landlady and right to realize the rent or that the landlady had not waived her right of re-entry or had not condoned the conduct of the tenant.
21. For the above reasons, the decree of eviction passed by the Courts below on the ground of disclaimer of title also cannot be sustained.
22. For the foregoing conclusions, this writ petition is allowed to the extent that the decree of eviction of the petitioner from the premises in question is set aside and the plaintiffs suit for ejectment shall stand dismissed with costs on parties and the judgments and decree passed by the Courts below shall stand modified accordingly.
In the circumstances, no order as to costs is made.