Kalika Prasad vs Mohan Lal

Rajesh Tandon, J.—Heard Shri V.K. Bisht, Sr. Advocate assisted by Shri Virendra Kaparwan, counsel for the applicant and Shri Ramji Srivastava, counsel for the respondent.

By the present civil revision filed u/s 25 of Small Cause Courts Act, the applicant has prayed for setting aside the judgment and order dated 12.9.2007 passed by the Judge, Small Cause Courts, Tehri Garhwal in O.S. No. 1 of 2000.

Briefly stated, a suit was filed by the plaintiff praying for the eviction of the defendant on the ground that the defendant is a tenant @ Rs. 300/- per month of the property consisting of one room situate at village Tapovan (Laxman Jhula), district Tehri Garhwal. Later on the plaintiff felt need of the said shop. The defendant promised to vacate the same by 25.9.1999 but he failed to do so. The shop was let out for business purposes but the defendant used the same for residential purposes. The defendant is also having other shops on rent. It has been alleged that the use of the tenanted room is against the terms of tenancy. The plaintiff sent a notice demanding arrears of rent and other charges and terminated the tenancy of the defendant by way of notice dated 31.1.2000, which was served on the defendant on 2.2.2000, but the defendant has neither vacated the shop nor paid the arrears of rent. Hence, the present suit has been filed for eviction as well as realization of rent, etc. from the defendant.

The defendant did not file the written statement and the suit was ordered to be proceeded ex parte but later on the defendant has filed a written statement after setting aside of the ex parte order. In the written statement, it has been stated that the defendant is a tenant of the disputed property @ Rs. 300/- per month. It has been alleged that the plaintiff has disconnected his electricity from September, 1998 and he has never promised on 26.10.1998 to vacate the premises in question. The rent and all other charges have been paid upto October, 1999 but the plaintiff has not issued any receipt. The defendant has tried to pay the rent to the plaintiff but he has not accepted the same. Therefore, the defendant has deposited the rent upto August 2001 in the court and tenancy of defendant is not legally terminated. It has been submitted that the tenancy in question has not been terminated, hence, the suit is liable to be dismissed.

On the pleadings of the parties, the Judge, Small Cause Court has framed the following issues:

Whether the defendant has committed any default in payment of rent?

Whether the alleged premises is being used by the defendant against the terms and conditions of tenancy?

Whether the notice sent by plaintiff defendant is illegal?

While deciding issue No. 1 as to whether the defendant has committed any default in payment of rent, the Judge, Small Cause Court has held that the defendant has deposited all the dues on 8.9.2001 on the first date of hearing, therefore, he cannot be held as defaulter and he is entitled to get benefit of Section 20 (4) of U.P. Act No. 13 of 1972.

While deciding issue No. 2 as to whether the alleged premises is being used by the defendant against the terms and conditions of tenancy, the Judge, Small Cause Courts has held that the purpose of tenancy has not been changed and, therefore, the issue was decided against the plaintiff.

While deciding issue No. 3 with regard to validity of notice, the Judge, Small Cause Courts has held that the tenancy was not legally terminated by the said notice.

In view of the aforesaid, the Judge, Small Cause Courts has dismissed the suit of the plaintiff. Aggrieved by the said judgment, the plaintiff preferred the revision No. 46 of 2004 which was allowed with the following observations:

As will appear from the ordersheet that the suit has been registered on 13.3.2000. The first date was fixed on 2.5.2000 and thereafter it has proceeded further on 30.6.2000. Thereafter, 4.8.2000 was also the date but it appears that the defendant has not exercised his rights u/s 20 (4) of the U.P. Act No. 13 of 1972 and ultimately, he has deposited the rent and damages on 6th September, 2001.

Counsel for the applicant has submitted that on 6 September, 2001, the entire amount has not been deposited in compliance of Section 20 (4) of the U.P. Act No. 13 of 1972 in accordance with the demand made in the notice as well as as required in paragraph 7 of the plaint. Although the date of first hearing was much prior to 6 September, 2001.

In view of the aforesaid, the entire amount have not been deposited on the first date of hearing and the Judge, Small Cause Court has not recorded any finding with regard to the deposits made from time to time. It may be pointed out that the suit was directed to proceed ex parte, however, ex parte decree was never passed and even during the pendency of the suit, from time to time dates were fixed and there has been the application of mind by the Presiding Officer.

The Hon''ble Supreme Court in Ashok Kumar v. Rishi Ram 2002(48) ALR 401 has relied upon the judgment of Advita Nand v. Judge, Small Cause Court, Meerut and Ors. 1995 (26) ALR 71 (SC); Siraj Ahmad Siddiqui v. Prem Nath Kapoor 1993 (22) ALR 375 (SC) and Sudershan Devi and Anr. v. Sushila Devi and Anr. 1999 (37) ALR 496 (SC), where it has been observed with regard to the first date of hearing as contemplated u/s 20(4) of U.P. Act No. 13 of 1972 as under:

Even though issues are not required to be framed and the date is fixed for purpose of final hearing of the suit filed before the Small Causes Court but 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 the written statement.

In view of the aforesaid, the judge, Small Cause Court is directed to record the finding in the light of the observations made above. The matter is sent back to the Judge, Small Cause Court for deciding afresh within a period of 2 months.

After remand of the case, the Judge, Small Cause Courts has proceeded with the suit and has observed as under:

Admittedly, the arrears of rent and other dues were deposited by the defendant on 8.9.2001 and to ascertain whether this was the date of first hearing or not, a perusal of order sheet of this case was made. Learned Counsel for the plaintiff has argued that the first date of hearing in this case was 9.5.2001 as this date was fixed on 16.3.2001, but before 9.5.2001 an adjournment for filing written statement was filed on 20.4.2001. Even on 9.5.2001, the case was for hearing of some other applications 11 C and 16 C, which was to set aside the order to proceed ex parte. The case was fixed for hearing of that application till 14.11.2002 when ex parte decree was made which was later on recalled on 31.5.2004 and date of 4.6.2004 was fixed for final hearing, which can be said to be the first date of hearing fixed in this case. Till 6.9.2001, when the arrears of rent and other deposits were made, the Court has not applied its mind as per the law laid down by Hon''ble Apex Court in Ashok Kumar and Others Vs. Rishi Ram and Others, . It was laid down that first date of hearing means the first date when the Court proposes to apply mind to identify controversy in the suit and this cannot be the date fixed for filing written statement. Hence, it is proved in this case that the defendant deposited the arrears of rent and other expenses before the first date of hearing in the present case. In this situation, the defendant cannot beheld to be a defaulted and he is entitled to the benefit of Section 20 (4) of UP Act No. 13 of 1972. Hence, it is hereby decided that the defendant/tenant has deposited the arrears of rent and other dues before the first date of hearing in the present case.

As will appear from the aforesaid order that the Judge, Small causes Court on the basis of the order dated 31.5.2004 recalling the order proceeding ex parte and assumed the date as 4.6.2004 for the purposes of the benefit of Section 20 (4) of U.P. Act No. 13 of 1972. In order to make it clear the orders dated 18.10.2002 as well as 31.5.2004 are quoted below:

18.10.2002

11C : By Madan Lal supported with an affidavit for recalling the order dated 2.5.2000.

16 C : Objection thereon supported by affidavit 17 C.

None appeared on behalf of opp. Party Madan Lal to press his application 11 C. Plaintiff Kalika Prasad is represented through his counsel.

Heard. The order to proceed ex parte dated 2.5.2000 is confirmed as there is none to represent defendant-opp. Party.

28 C: By Madan Lal for payment of arrears of rent. None to press, hence rejected.

27 C : By plaintiff Kalika Prasad for striking off the defence on the ground of nonpayment of arrears of rent since March 2000. 34 Ga is objection by defendant.

Since there is none to press 34 C, hence rejected. Heard plaintiff''s counsel over 27 C. It has been argued on behalf of plaintiff that rent is still due from the defendant and even during the pendency of this suit no rent has been paid by the defendant. Thus, the application 27 C deserves to be allowed and the defence of the defendant is struck off.

33C : WS by defendant. The case of the plaintiff is still proceeding ex parte and as such it cannot be taken on record.

Put up on 11.11.2002 for arguments.

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There appears nothing from the aforesaid orders that there was no application of mind till 6.9.2001 inasmuch as the notices were served for 2.5.2000 and on 30.6.2000 application 11 ga was filed, on 22.8.2001 application was filed by the plaintiff for striking of the defendant as the admitted rent was not deposited on the first date of hearing.

There is a difference between to proceed the case ex parte and to passing of the decree ex parte. In the present case, there was no ex parte decree and court has proceeded ex parte as the defendant has failed to appear and, therefore, it cannot be presumed that there was no date of first hearing prior to the said date of appearance i.e. 2.5.2000.

The Judge, Small Causes Court shall adjudicate with regard to first date of hearing in the light of the judgment of the Apex Court as referred above.

In view of the aforesaid, civil revision is allowed. Revision is sent back to the Judge, Small Causes Court for deciding afresh in the light of the observations made above. Order dated 12.9.2007 is set aside. No order as to costs.