Jagannath and Another vs Ram Chander Srivastava and Another

A.N. Varma, J.—This Civil Revision comes before us upon a reference made by a learned Single Judge (one of us) in consequence of conflict between two Single Judge decisions of this Court on the construction of Order 15 Rule 5 of the CPC and the effect of the Explanation 1 added thereto by the U.P., Amending Act No. 57 of 1976. In Mathura Prasad v. Vikram Jeet Singh 1978 AWC 523 Hari Swarup, J., interpreting the aforesaid provisions took the view that where the court adjourns the hearing of a suit to a date other than that fixed in the summons, it is the adjourned date which should be deemed to be the date of the first hearing within the meaning of Order 15 Rule 5 Code of Civil Procedure. K. N. Seth, J, on the other hand, in the case of Ajit Singh v. Shivji Maharaj Birajman Mandir 1980 ARC 511 observed that the date of the first hearing is the date mentioned in the summons and not any other date to which the court might adjourn the hearing of the suit, even though without transacting any business on the date fixed in the summons.

The court below following the dictum of this Court in the case of Ajit Singh (Supra) struck off the defence of the applicant on the ground that the applicant, a Defendant in the suit giving rise to this revision, having failed to deposit the amount as contemplated under Order 15 Rule 5 on or before 11-8-1978, the date mentioned in the summons served on the Defendant-applicant for hearing of the suit, his defence was liable to be struck off in terms of Order 15, Rule 5. The applicant contends that the view taken by the court below is unsustainable and that on a true construction of Order 15 Rule 5 read along with the Explanation 1 added thereto, it must be held that the date of the first hearing of the suit was 11-4-1980, being the date on which the applicant filed his written statement and inasmuch as the tender for making the deposit was submitted on that date, the applicant must be deemed to have complied with that Order 15 Rule 5 Code of Civil Procedure.

The question therefore which falls for determination in the case is whether where the court adjourns the hearing of a suit to a date other than that fixed for that purpose in the summons served on the Defendant the date of the first hearing would be the adjourned date or the date originally fixed in the summons within the meaning of Order 15 Rule 5.

We may first briefly set out the legislative history of the relevant provisions. Order 15 Rule 5 was added by U.P. Act No. 37 of 1972. At that time the provisions, namely Order 15 Rule 5 read as follows:

Striking off defence on non deposit of admitted rent, etc.--(3) In any suit by a lessor for the eviction of a lessee from any immovable property after the determination of his lease, and for the recovery from him rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use or occupation thereof, whether instituted before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act 1972, the Defendant shall, at or before the first hearing of the suit, (or in the case of a suit instituted before the commencement of the said Act, the first hearing after such commencement) deposit the entire amount of rent, or compensation for use and occupation, admitted by him to be due, and thereafter throughout the continuance of the suit, deposit regularly the amount of monthly rent, or compensation for use and occupation, due at the rate admitted by him and in the event of any default in this regard, the court may, unless after considering any representation made by him in that behalf it allows him further time on security being furnished for the amount, refuse to entertain any defence, or, as the case may be, strike off his defence.

It would be seen that the provision did not clearly define as to which date might be regarded as the date of the first hearing of the suit. In regular civil suit it was always thought that the date of the first hearing of the suit can in no circumstance be anterior to the date fixed for settlement of the issues in view of Order 10 Rule 1, Order XIV Rule 1. Order XV Rule 1 Code of Civil Procedure. However, under the local law prevailing in this Slate suits filed by the lessors against lessees for eviction from a building are triable by a Small Cause Court or courts exercising the powers of the Small Cause Court. Such suits are required to be tried as a small cause under the applicable local laws (U.P. Civil Laws Amendment Act, 1972 read with Provincial Small Cause Courts Act). In a suit of that character normally no separate dates are fixed for settlement of issues, evidence and arguments. Each date is more often than not supposed to be for all the three purposes mentioned above in view of nature of the suit and the professed desire to dispose of such suits expeditiously.

In view of this position in regard to cases arising before the insertion of Explanation 1 to Order 15 Rule 5 a controversy was often raised as regards the true meaning to be assigned to the expression the ''first hearing''. Some learned Judges took the view that the date fixed for filing the written statement or settlement of issues must be deemed to be the date fixed for final hearing within the meaning of Order 15 Rule 5 or an analogous provision, namely, Section 20(4) of U.P. Act No. XIII of 1972. (It may be mentioned that Section 20(4) of U.P. Act No. XIII of 1972 is in the same terms as Order 15 Rule 5 Code of Civil Procedure). Others took the view that the first hearing in a suit of that character cannot be said to have reached until the Court applies its mind to the facts in issue. The consensus which emerged eventually was that the date of first hearing is that on which the court brings its judicial mind to hear for the first time on the lis involved in the suit. The view taken was that if without applying its judicial mind to the lis the court adjourns the hearing of the suit, that date cannot be regarded as the date fixed for first hearing of the suit. (See Basu Dev Sahai v. Brij Mohan Lal (D. B.) 1979 AWC 153 : 1979 ALJ 495 : 1979 AWC 67 , Raghubir Singh v. Krishan Kant and Ladly Prasad Vs. Ram Shah Billa and Others, .

It appears that in view of the prevailing ambiguity or elasticity of the expression ''first hearing'' in the context of the nature of the suits with which we are concerned and further in view of the judicial pronouncements on the true interpretation of the term ''first hearing'' occurring in Order XV Rule 5 not being uniform, the Legislature intervened and inserted Explanation 1 to Order 15 Rule 5 by U.P. Act No. 57 of 1976. The explanation reads thus:

Explanation 1:

The expression ''first hearing'' means 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.

The role of an explanation in statutory construction is to remove any ambiguity in the main section or to make explicit that may be otherwise ambiguous. Its basic function is to elucidate the main enactment. However, the construction of an Explanation must depend in the ultimate analysis upon its plain terms and the language used therein.

We, therefore, turn to the language used in the explanation under consideration for finding out the true meaning of the expression ''first hearing''. The first feature which strikes us is that in the definition of the expression ''first hearing'' appearing in the Explanation under consideration the teem used is ''means''. This term has come to assume a definite connotation in statutory construction. Normally ''means'' has been held to be a term of narrower import than ''includes''. When a statute defines a term or expression as meaning such and such thing the definition is prima facie regarded as restrictive and exhaustive. In Stroud''s Judicial Dictionary of Words and Phrases (4th Edn. Vol. 3) the word ''mean'' has been defined as follows:

(1). When a statute says that a word or phrase shall "mean"--not merely that it shall "include"-certain things or acts, " the definition is a hard-and-fast definition, and no other meaning can be assigned to the expression then is put down in the definition.

Stroud has quoted from the decision of Esher M.R. in Gough v. Gough (1891) 2 QB 665 and also in Bristol Trams Co. v. Bristol 59 LJ QB 449.

On the other hand, when the word is declared in a statute to ''include'' particular things or circumstances, the definition is normally regarded as extensive. It is generally used to enlarge the meaning of words or phrases occurring in the body of the statute. This aspect has been high-lighted in the following cases : 1. (1899) AC 99 (Privy Council) page 105 2. The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, , Sant Ram and Others Vs. Labh Singh and Others, ; Commissioner of Income Tax, Andhra Pradesh Vs. Taj Mahal Hotel, Secunderabad, .

That being the legislative import of the term ''means'' used in a definition clause, it seems to us that the Explanation 1 was added firstly to remove the ambiguity as regards the true import of the expression ''first hearing'' occurring in the main enactment, and, secondly to restrict the meaning and concept of the date of the first hearing to the date or dates specifically mentioned in the summons served on the Defendant. The legislative intent seems explicit and unambiguous, namely, that the first hearing would be the date or dates specifically mentioned in the summons. Where, therefore, the summons has been duly served there seems to us little scope for speculating as to which date would be the date of the first hearing. The generally accepted notions under the civil law as to when the stage of first hearing in a suit can be said to have been reached are, in our considered view, clearly intended to be excluded from consideration in the application of Order XV Rule 5.

Another notable feature in the Explanation under consideration is that whereas in the main provision the expression used is ''first hearing of the suit'' means the date for filing the written statement or for hearing mentioned in the summons. The explanation further says that where more than one of such dates are mentioned in the summons, the last of such date shall be the date of the first hearing within the meaning of Order 15 Rule 5, Code of Civil Procedure.

On the plain language of Explanation 1 therefore we are of the opinion that the date of the first hearing within the meaning of Order 15 Rule 5 means the date mentioned in the summons and that the ordinary notions of when the stage of the first hearing in a civil suit governed by the CPC arrives cannot be imported into or applied in the application of Order 15 Rule 5. We think that once it is found that the summons has been duly served on the Defendant it is the date mentioned in the summons which would be relevant for the application in Order 15 Rule 5 and we find nothing in the context of Order 15 Rule 5 to take a contrary view. The object of the Order 15 Rule 5 being the payment by the Defendant of the entire arrears of rent admitted to be due from him on the very first date of hearing, we see no ground for introducing a legal fiction such as was sought to be done in the case of Mathura Prasad (Supra) by Hari Swarup, J. normally that where the court adjourns the hearing of the suit even though at the instance of the Defendant from the date fixed in the summoos to some other date, it would be the adjourned date which would automatically be deemed to be the date of the first hearing in the suit,

We are further of the view that upon the plain language of the Explanation, save in cases where the court itself is unable to take up the case or proceed with the hearing of the same in consequence of the absence of the presiding officer or of the inability of the court of like nature to take up the case, the date mentioned in the summons shall be the date of the first hearing, provided of course the summons has been duly served on the Defendant. We do not agree that even where the Defendant himself seeks adjournment of the suit on the date mentioned in the summons and the court agrees to grant the adjournment, the adjourned date shall be deemed to be the date of the first hearing within the meaning of Order 15 Rule 5. We think that the acceptance of the contrary view would render the explanation completely otiose.

In our judgment the view taken by H. N. Seth, J. in Ajit Singh''s case (supra) to the effect that after the insertion of Explanation 1 to Order 15 Rule 5 the first date of hearing would be that mentioned in the summons and that this would be so even if the court adjourns the hearing of the suit from that date to some other date without transacting any business or without applying its judicial mind to the lis, is correct. We do not agree with the view expressed by Hari Swamp, J. in the case of Mathura Prasad and Anr. (supra) to the effect that in all circumstances and whenever the court adjourns the hearing of the suit from the date mentioned in the summons to some other date, the adjourned date would automatically be deemed to be the date of the first hearing in the suit within the meaning of Order 15 Rule 5 read with the Explanation 1.

In taking the aforesaid view Hari Swarup, J. reasoned thus:

First, that the question of striking off the defence under Order 15 Rule 5 can arise only after the defence has been filed and becomes known. The defence must precede the hearing of the suit. The court cannot strike off the defence unless it knows what amount the Defendant has admitted. There is hence no question of striking off defence until the same has been filed.

Second, that inasmuch as it is the jurisdiction of the court to fix a date of hearing, if it thinks fit and proper, it can change that date and fix some other date, and when it does so the date mentioned in the summons must automatically be deemed to have been altered and therefore the altered date becomes the date of first hearing.

In our judgment neither of these two grounds is valid. So far as the first ground is concerned, it is to be noticed that Order 15 Rule 5 requires the deposit of that amount which the Defendant admits to be due from him. The admission need not necessarily be expressed in the written statement. It would be sufficient compliance if the Defendant deposits such amount as he admits to be due to the Plaintiff in the application accompanying the tender for deposit. We are not impressed by the argument that until the Defendant files his written statement the court cannot know what the arrears of rent as admitted by the Defendant are. As mentioned above, while depositing the amount the Defendant can say what according to him are the arrears of rent due from him, if any. As regards the reasoning that the question of striking off the defence arises only after the defence has been filed, we have to observe that Order 15 Rule 5 only mandates the deposit of admitted arrears along with other amounts mentioned in Order 15 Rule 5 before the date of the first hearing. It does not say that the court has to strike off the defence on the date of the first hearing. Where therefore the Defendant fails to comply with the provisions of Order 15 Rule 5 he incurs the liability of his defence being struck off. The power to strike off the defence may, however, be exercised subsequently after the date of the first hearing, if and when the Defendant files his defence.

The second reasoning adopted by Hari Swarup, J. is equally unacceptable to us. It is true that the court has jurisdiction to adjourn the hearing of the suit and thereby alter the date mentioned in the summons. It is further true that if the date for filing the written statement is changed by the court at the instance of the Defendant, the Defendant would be entitled to file his written statement on that adjourned date. However, in our view that would not mean that the date fixed by the statute for compliance of the Order 15 Rule 5 also stands automatically adjourned. This is because of the plain language of Explanation 1 which restricts the meaning of the term first hearing to the date mentioned in the summons. We think that the view that the adjourned date automatically becomes the date of the first hearing within the meaning of Order 15 Rule 5 read with Explanation 1 would render the existence of Explanation 1 wholly nugatory and meaningless and it would bring back the position of law to the same state in which it was prior to the insertion of the first Explanation. It would, in our view, also encourage the Defendant to indulge in dilatory tactics of postponing the payment of the admitted amount by obtaining adjournments in the suit. It is common knowledge that the stage of the final hearing in a suit as envisaged under the CPC arrives only after the Defendant has exhausted all possible means of stalling the progress of a suit of the character. Both Order 15 Rule 5 as well as Explanation 1 added thereto were designed to curb precisely this evil.

We, therefore, do not approve of the view of law taken by Hari Swarup, J. and hold that except where the Presiding Officer himself is absent or the court is otherwise not available for taking up the case on the date fixed in the summons, it is the date mentioned in the summons which would be the date of the first hearing. We have made the above exception for the simple reason that if the court itself is not there the Defendant cannot make the deposit contemplated under Order 15 Rule 5.

Learned Counsel for the applicants mainly relied on the aforesaid decision of Hari Swarup, J. in Mathura Prasad''s case. He further relied on a Single Judge decision of this Court in the case of Shambhu Nath Mehrotra v. Nawal Kishore Agarwal 1981 ARC 130 : 1981 AWC 74. This decision merely follows the decision of Hari Swarup, J. in Mathura Prasad''s case which we have already extensively commented on the disapproved. Further, in that case there was a finding that there was no proper service of the summons. This decision therefore also does not help the applicants.

Apart from relying on the aforesaid two decisions of this Court learned Counsel for the applicant also contended that an Explanation is added only for the purpose of explaining or elucidating the main provision to which it is added. The basic concept of hearing of a suit, it was urged, cannot therefore be said to have been altered by the insertion of the Explanation to Order 15 Rule 5. The contention raised by the learned Counsel as an abstract proposition of law is unexceptionable. However, we cannot ignore the plain language of the Explanation under consideration. As mentioned above, in the ultimate analysis the object of the Explanation can best be understood by referring to the language in which it is expressed. The explanation under consideration is, in our opinion, a plain and simple definition clause enacted to define the expression ''first hearing'' and in view of the language used therein, it is clear that the object was to exclude the general notions of the fist hearing in a civil suit governed by the Code of Civil Procedure.

Learned Counsel for the applicants also placed strong reliance on a decision of the Supreme Court in Ved Prakash Wadhwa Vs. Vishwa Mohan, . That decision is of little assistance. No doubt their Lordships were considering an analogous provision in the shape of Section 20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 as it stood prior to the insertion of a similar Explanation added thereto to the one with which we are concerned. But the Supreme Court specifically observed thus:

We must add here that we are not concerned in this case with the amendment by way of explanation to Section 20(4) as the present litigation was antecedent to the amendment.

Having disposed of the legal controversy involved in the case, we turn to the facts. The finding in the present case is that the summonses were duly served on the Defendants-applicants. In the summons issued to the Defendants 11-7-1978 was fixed for the hearing of the suit. On that date Defendant No. 2 (applicant No. 2 herein) appeared and asked for further time to file written statement. In regard to Defendant-applicant No. 1, however, the court noted that he had refused to accept the summons and therefore the service on him be treated as sufficient. At the instance of Defendant No. 2, however, subject to payment of Rs. 15/- as costs the hearing was adjourned to 22-8-1978. After a few adjournments the suit was again taken up on 4-10-1978, the date fixed for hearing in the suit. On this date Defendant No. 1 appeared and prayed for further time to file written statement. Subject to payment of Rs. 25/- as costs the Defendant No. 1 was allowed to file his written statement within 15 days and the court fixed 28-11-1978 for the final hearing. On 19-10-1978 the Defendant No. 1 again asked for further time to file written statement which was again allowed by the court on condition of paying Rs. 30/- as costs. Before 28-11-1978 however, the Defendant-applicant got the hearing of the suit stayed in a transfer application moved in the Court for transfer of the case. The transfer application having been dismissed, the court again fixed 2-4-1980 for final hearing of the suit. On 2-4-1980 once again the Defendant asked for further time to file written statement. Subject to payment of Rs. 30/- as costs the Defendant was allowed to file his written statement by 11-4-1980. On 11-4-1980 the Defendant is said to have filed his written statement as well as the tender for the deposit of the amounts contemplated under Order 15 Rule 5. It appears subsequently the Plaintiff filed an application that Defendants having failed to deposit the amounts under Order 15 Rule 5 on or before the date of first hearing, their defence was liable to be struck off. This application was contested by the Defendant, but as mentioned above, it has been allowed by the court below and their defence has been struck off by the impugned order.

In view of the position of law enunciated by us here-in-above, it is clear that 11-8-1978 was the date of first hearing in the suit, as the Defendants had been duly served and this was the date mentioned in the summons for final hearing of the suit. The court below was therefore right in treating 11-8-1978 as the date of the first hearing in the suit. Alternatively, even assuming that 11-8-1978 was not the date of the first hearing, there can be no manner of doubt that 2-4-1980 was in any case the date of first hearing, having been fixed on 19-3-1980 after the stay order passed by this Court in the transfer application had been vacated. The Defendants did not deposit the amounts even on 2-4-1980. They did so only on 11-8-1980. The fact that the court was pleased to adjourn the hearing of the case on 2-4-1980 at the instance of the Defendants, as already discussed above, would make no difference to the application of Order 15 Rule 5 in view of the Explanation added thereto. Thus, in either view of the matter the court below was right in its conclusion that the Defendants had not complied with the Order 15 Rule 5.

Learned Counsel for the applicants, however, placing strong reliance on a decision of the Supreme Court in the case of Bimat Chand Jain v. Sri Gopal Agarwal 1981 AWC 529 submitted that in any case the court below has committed a patent error in thinking that it had no option but to strike off the defence of the applicants. It was urged that the court below had a discretion in the matter and it was not obliged to strike off the defence. We think that this contention of the learned Counsel is fully supported by the aforesaid decision of the Supreme Court. Examining the scope of Order 15 Rule 5 their Lordships of the Supreme Court observed thus:

We must remember that an order under Sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before if, notwithstanding the absence of a representation under Sub-rule (2), the defence should or should not be struck off. The word "may" in Sub-rule (1) merely vests power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of opinion that the High Court has placed an unduly narrow construction on the provision of Clause (1) of Rule 5 of Order XV.

It is pertinent to note here that in the above case no representation under Sub-rule (2) of Order 15 Rule 5 had been made by the Defendants within time and this Court had taken the view that the court had no jurisdiction to entertain a representation as it was made beyond time. The Supreme Court did not accept this view as a correct statement of the law.

It, therefore, seems clear that the court did have jurisdiction to consider whether on the material existing on the record it was a fit case in which the order striking off the defence of the applicants ought to be made. From a perusal of the order passed by the court below it seems fairly obvious that the court below has struck off the defence of the applicants as a matter of course as if it was mandatory for it to do so. It has further observed that inasmuch as the applicants did not make any representation within the stipulated period, the delay could not be condoned. These observations of the court below again are clearly contrary to the dictum laid down by the Supreme Court in the aforesaid decision. The court below ought to have examined the material existing on the record to find out whether this was a fit case in which the defence ought to have been struck off.

In the result, therefore, this revision succeeds and is allowed to the extent mentioned above. The order passed by the court below is set aside. The case is remanded to the court below for being disposed of afresh according to law, keeping in view the observations made in this judgment. The parties shall however, bear their own costs.