Lal Singh Bath vs XI Additional District Judge and another

Shishir Kumar, J.—Heard Sri A.K.Goyal learned counsel for petitioner.

In spite of repeated calls nobody appears for the respondents. The matter is listed in the heading of ''Old cases''. therefore it is being decided finally.

This writ petition has been filed by the landlord for quashing the order dated 14.5.1996 passed by revisional court by which the respondents revision has been allowed.

It appears that the petitioner filed a suit for ejectment , arrears of rent against the respondents, after serving a notice under Section 106 of the Transfer of Property Act. The suit was decreed ex parte on 6.11.1986. The said ex parte decree on an application made by the respondents was set aside on 13.2.1987 and it was restored and the date was fixed as 13th March 1987. The respondent tenant inspite of the aforesaid fact has not complied with the provisions of Section 20 sub clause (4) and the amount was actually deposited on 6th July 1987. In such circumstance the Prescribed authority after holding a detailed discussion has recorded a finding that the respondent tenant is not entitled to get the benefit of Section 20 sub clause (4) being the fact that it is not a normal issue in which after receiving of the summons the first date of hearing will be when the court applied his mind. Admittedly, the court applied its mind while setting aside the ex parte order on 23.3.1987. In such circumstance the Judge Small Causes Court vide his judgement and order was pleased to decree the suit for ejectment and arrears of rent but the revisional court without considering this issue only on the basis of the judgements which considers the first date of hearing when the court applied his mind and has allowed the revision and set aside the order passed by the Judge Small Causes Court hence the present writ petition.

Sri A.K.Goyal learned counsel for the petitioner submits that Prescribed authority has recorded a finding that admittedly the ex parte decree was set aside on 13.2.1987 in the presence of the defendant respondent on the ground that the summons were not served or he was not having notice of the case. In his presence next date for hearing was fixed therefore that will be treated to be the first date of hearing and if on that date there is no compliance of Section 20 Sub Clause (4) of the Act he will not be entitled to get the benefit . Learned counsel for petitioner has placed reliance upon the judgement of this Court reported in 1992 Vol 20 ALR page 951 Ram Prasad Vs VIIth Additional District Judge, Meerut and placed reliance upon paragraph 3 and 4 of the said judgement, the same is being quoted herein below :

Section 20(4) of the Act provides that if at the ''first hearing'' of the suit the tenant deposits the entire amount of rent together with interest at the rate of nine per cent and the landlord''s costs of the suit the court may, in lieu of passing a decree for eviction on that ground , pass an order relieving the tenant against his liability of eviction. Explanation (a) to this sub section provides that the expression "first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant. The material on record does not show as to when the summons were actually served upon the petitioner tenant and what was the date mentioned therein. Shri Mandhyan has submitted that the fact that the suit was decreed ex parte itself shows that the summons were not served upon the petitioner . In my opinion from the mere fact that the suit was decreed ex parte and the said decree was later on set aside no inference can be drawn that the summons were not duly served upon the petitioner. There is no averment in the writ petition that the summons were not served upon the petitioner or that he got no knowledge of the suit .Even assuming that the summons were not duly served the fact that the petitioner filed a restoration application on 15.1.1980 for setting aside the decree would lead to the conclusion that at least on 15.1.1980 the petitioner got knowledge of the suit . The ex parte decree was set aside on 5.7.1980 and the suit was restored to its original number on 11.8.1980 and was fixed for hearing on 12.11.1980. Even if the contention of the learned counsel for the petitioner is accepted he should have deposited the entire amount on the said date, the petitioner did not deposit the amount on the said date but sought adjournment and deposited the same on 12.2.1981 he can not get any benefit of the deposit made by him and the suit was rightly decreed.

Learned counsel has submitted that the date of first hearing should be deemed to be the date on which the court took up the case and applied its mind to the controversy between the parties and relied upon Subhash Chandra Jain V Ist A.D.J.1989(15) ALR 300 (SC) in support of his submission. In my opinion the contention raised by learned counsel for the petitioner cannot be accepted for an artificial meaning has been given to the expression "first hearing" by explanation (a) to Section 20(4) of the Act which means the first date for any step or proceeding mentioned in the summons served on the defendant. This expalanation has been added by U.P.Act No.28 of 1976 with effect from 5.7.1976. In the case of Subhash Chandra Jain (Supra ) the court was considering the situation as it existed prior to the amendment. In Sita Ram Vs District Judge ,1984(1) ARC 410 a Full Bench of our Court has held that where the court , on the date mentioned in the summons , adjourns the case to some other date without transacting any business or without applying its judicial mind to the list, the date of first hearing for purpose of Section 20(4) would still be the date mentioned in the summons. In Sheo Kumar Sharma V IV A.D.J. 1985, (2) ARC 344, and Baburam Gupta Vs Daya Shanker 1982, (1) ARC 161 it has been held that the date of the first hearing will not be altered where after service of summons the suit is decreed ex parte and the ex parte decree is later on set aside. In Mohd. Alim Vs Mohd. Abrar 1989(1) ARC 329 it has been held that the date of first hearing will not be altered if from service of summons the suit is dismissed for default and later on it is restored. Therefore, in order to get the benefit of Section 20(4) of the Act the petitioner should have deposited the entire amount latest by 12.11.1980. Since he moved an adjournment application on the said date and deposited the amount on 12.2.1981 it is obvious that he can not get any benefit of the deposit made by him and the decree for eviction was rightly passed against him.

Taking support of the aforesaid judgement , learned counsel for the petitioner has submitted that this Court has taken a view that in case the ex parte decree is set aside and a particular date fixed after setting aside ex parte decree that will be treated to be the first date of hearing. The principle laid down in the other cases by Apex court will not be applicable in the present case.

After considering the submissions made on behalf of the petitioner and after perusal of the aforesaid judgement I am of the view that the Judge Small Causes Court after considering all the relevant fact has recorded finding that as the respondent was having knowledge of the date fixed immediately after setting aside the ex parte decree therefore that will be treated to be the first date of hearing and if there is no compliance the tenant is not entitled to get the benefit of Seciton 20 Sub Clause 4 of the Act. In my opinion the revisional court has clearly over looked this fact that as soon as the ex parte decree is set aside the next date fixed will be treated to be the first date of hearing and if there is no compliance then tenant is not entitled to get the benefit . The cases of the Apex court relied upon by the revisional court is not applicable to the facts of the present case because those cases are to the effect that where in the normal mode the notices are issued and the defendant or the plaintiff put their appearances and if the case is adjourned on the ground of strike or on the ground of non availability of the Presiding Officer and another date is fixed then in that circumstance the next date fixed will be treated to be the first date of hearing. or the court itself fixes a date for hearing but in the facts and circumstances of the present case admittedly after the ex parte decree in the presence of the defendant respondent the date was fixed 3rd March 1987 therefore that date will be treated the first date of hearing and if the tenant has not complied with the provisions of Section 20Sub Clause (4) of the Act, in my opinion he can not escape from the decree of ejectment.

In view of the aforesaid fact the revisional court has committed an error apparent on the face of record therefore the judgement and order dated 14.5.1996 passed by the revisional court is not sustainable in law and is liable to be quashed.

The writ petition is allowed. The order dated 14.5.1996 is hereby quashed and the order passed by the Prescribed Authority is hereby restored.