Mela Ram and Others vs Kundan Lal

G.D. Khosla, C.J.—The only question for my decision in this case is what is the first date of hearing for the purposes of the proviso to Section 13(2)(i) of the Urban Rent Restriction Act of 1949.

In this case summons were issued to the tenant in an application for ejectment for 14th December, 1957. One of the grounds upon which ejectment was sought was that arrears of rent had not been paid. On 14th December, 1957, the Respondent appeared and stated that he had not been given a copy of the application for ejectment. He prayed for an adjournment, and the case was adjourned to 30th December, 1957. A copy of the application was supplied to the Respondent on the same day i.e., 14th December, 1957.

On 14th December, 1957, no deposit of arrears of rent as required by Section 13(2)(i) was made, but on 30th December, 1957, the necessary deposit was made. The question, therefore, arose whether the landlords were entitled to an order of ejectment on the ground that arrears of rent had not been paid, or whether the tenant could claim exemption by virtue of the proviso to Section 13(2)(i).

The Rent Controller and the Appellate Authority have held that 14th December, 1957, was not the first date of hearing, because on that date the Respondent had not been supplied with a copy of the application. Therefore, on that date the Rent Controller could not apply his mind to the case and thus hear it. On 30th December, 1957, which was the adjourned date, the tenant had been supplied with a copy of the application and so issues could be framed and the case could be heard. That, therefore, was the first date of hearing, and since on that date the necessary tender of arrears of rent was made, the landlords could not claim ejectment on this ground.

Before me it has been argued on behalf of the landlords that the first date of hearing is the date upon which the Defendant appears to answer the summons and it makes no difference whether he has been supplied with a copy of the application or plaint or not. My attention was drawn to a number of cases of the Punjab High Court in which this view appears to have been taken. The first of these is the case reported as Hiralal v. Gian Singh and Co. and Ors. AIR 1951 P&H 441, which was decided by Kapur, J. In that case the learned Judge observed--

In my opinion, the words ''first day of hearing'' must mean the day when the Defendant appears in answer to the summons and the Court takes up the case in accordance with the Code of Civil Procedure.

The hearing does not cease to be a hearing, because the Defendant has not been supplied with a copy of the plaint. In fact, in that case nothing whatever was done on the first day of hearing which was the 18th of February, 1948, although the Defendant did appear in Court. The same view was taken by Bhandari, C.J., in Mukh Ram v. Siri Ram 1959 P.L.R. 561. In that case the application of the landlords for ejectment of a tenant came up for hearing on the 17th of June, 1957, for the first time. The tenant appeared and said that he had not been supplied with a copy of the petition. The case was accordingly adjourned to the 3rd of July, 1957. The tenant was handed over a copy of the application on the same day, i.e., the 17th of June, 1957, and he made preparations to deposit the arrears of rent due from him. He could not do so because of treasury rules and so the deposit was made the following day. Bhandari, C.J., expressed the view that the 17th of June, 1957, was, indeed, the first day of hearing, but because on that day the tenant had, despite his earnest endeavour to deposit the money, been unable to do so through no fault of his, the proviso must be interpreted liberally and the deposit on the next day must be deemed to be sufficient tender. The point, however, which is relevant for my purpose, is that although a copy of the application had not been supplied to the Defendant, the day when he first appeared before the Court was held to be the first day of hearing. My attention has also been drawn to a decision by Mehar Singh, J., of the Pepsu High Court. This is not a reported case, but a reference is made to it in Ram Chand Jagta Mal Aggarwal v. Mathura Dass Jiwan Mal Kalak AIR 1955 N.U.C. (Pepsu) 4003 . In this case Mehar Singh, J., took the view that because by virtue of Section 17 of the Pepsu Urban Rent Restriction Ordinance, Order 5 of the CPC applied, service could only be considered due service if a copy of the application was supplied to the tenant. The wording of Section 17 of the Pepsu Ordinance is similar to Section 16 of the East Punjab Urban Rent Restriction Act, but since there is this conflict between the decisions of the Pepsu High Court and the Punjab High Court, I feel that I should follow the rule of this Court rather than that of another Court. The Bombay High Court has also taken a different view in Khanderao Malkarjun Dhotre Vs. Anandrao Laxmanrao Mashalkar, The reason given by Tendolkar, J., does not, however, (and I say this with great respect to the learned Judge) appeal to me. He has sought to distinguish between the phrases "the first day of hearing" and "the first day fixed for hearing". The reason he gives is that a hearing takes place on several days and so the first day of hearing must be the day when something is done, and if it was intended that the first day of hearing was referred to in the proviso, then the expression "fixed for hearing" would have been used. This is how the learned Judge argues the matter--

Secondly, if by ''the first day of hearing'' was to be meant the returnable date that comes only once in the course of a given suit, that is, the hearing that cannot repeat itself, then what was more easy for the Legislature than to say ''on the day fixed for hearing?'' ''On the first day of hearing'' imports also the idea that there will be other hearings of the type which we refer to here, but it is only the first of them that is to be taken into account. In other words, the quality of hearing referred to is such that it is capable of being repeated from time to time in that suit and it is not a mere fixed point, like giving a notice which will never occur again in the same suit, that could accurately be described as ''the first day of hearing of the suit''. There is then no first day and no last day; the day fixed for hearing would both be the first and the last because that day cannot repeat itself.

With great respect to the learned Judge, the reasoning does not appear to me to be very logical and an enquiry into semantics is hardly likely to prove helpful in a case of this type, because when there is a day of hearing, the day of hearing is fixed and, therefore, whether it is the first day of hearing which is fixed or the second day of hearing which is fixed, would make no difference at all to the case. A day fixed for hearing can apply to every day fixed for hearing and not only the first one. Therefore, the distinction sought to be made by the learned Judge is illusory and not real. It seems to me to be far more logical to hold that the first day of hearing is the day upon which the matter comes before the Court and the case can be heard, because the Defendant appears and the Plaintiff is also present. If the Defendant asks for an adjournment on some ground, that surely does not deprive that day of its quality of being a day of hearing. Even if the Defendant had not received a copy of the plaint or for some reason says that the copy of the plaint had been lost or destroyed or had never reached him, although it was delivered at his house, he would be justified in asking for an adjournment, and in such a case I have no doubt that an adjournment would reasonably be granted to him. Therefore, it may be argued, but the argument will not be sound, that this was not the first day of hearing, because no hearing took place and the case was promptly adjourned. I do not see why it should make any difference to the case merely because a copy of the plaint was not delivered to the Defendant. There is no difference between the copy not having reached him personally and, therefore, his not being able to make a proper defence and the copy not having been delivered at his house. It seems to me that the two decisions of the Punjab High Court quoted above support the view that the first day of hearing is the date upon which ''the Defendant or the Respondent appears to answer the case, and whether he is able to answer it or not, that is the first date of hearing. In this view of the matter, it cannot be held that in the present case the arrears of rent were tendered on the first day of hearing, and the landlords were, therefore, entitled to an order of ejectment.

That being so, this petition must be allowed, and setting aside the orders of the Appellate Authority and the Rent Controller I grant an order of ejectment. The tenant is granted six weeks'' time within which to vacate the premises.