Mithlesh Kumar @ Munna and Anr. vs III Addl. District Judge,Bijnor & Ors.

S.U. Khan, J.—List is revised. No one appears for the landlord respondent.

Landlord respondent No. 3 Lala Ram Charan Das filed SCC Suit No. 1/77 against tenant petitioner. Suit was transferred to several Courts. Ultimately it was decreed ex parte on 16111978. Thereafter restoration application was filed and decreetal amount was also deposited in compliance of the provisions of Section 17 of P.S.C.C. Act. Restoration application was allowed on 1731979 and 1941979 was the next date fixed. Petitioner had already deposited the entire amount required by Section 20 (4) of the U.P. Act No. 13 of 1972 by 18121978. However, the learned J.S.C.C. took 321978 as date of first hearing and held that deposit made by the tenant was late hence he was not entitled to the benefit of Section 20 (4) of the Act. The J.S.C.C./A.C.J., Bijnor through judgment and decree 281980 decreed the suit for eviction and recovery of arrears of rent. 321978 was the date fixed in the summon issued at the time of the filing of suit. Actually on 321978 the case was not fixed in any Court. Against judgment and decree passed by the J.S.C.C. tenant petitioner filed Civil Revision No. 139/80. The Revisional Court/Ill A.D.J., Bijnor agreed with the trial Court that 321978 was the date of first hearing and accordingly dismissed the revision on 2931982 hence this writ petition.

Court below also held that as entire amount of rent due had not been deposited on the first date of hearing i.e. 321978 hence defence of the petitioner was also liable to be struck off.

The Supreme Court in S.C. Jain v. A.D.J., AIR 1989 SC 1070, has held that date which is fixed after setting aside ex parte decree is to be taken as date of first hearing.

In paras 24 and 25 of the writ petition it has been stated that on 1731979 when ex parte decree was set aside 1941979 was the next date fixed. It has further been stated that the deposit was made in compliance of Section 17, P.S.C.C. Act and by virtue of the said deposit entire amount due under Section 20 (4) of the Act till 1941979 which was first date of hearing stood deposited.

Paras 24 and 25 of the writ petition have not been specifically denied in para 25 of the counteraffidavit.

In my opinion judgments passed by Courts below are erroneous in law as they have wrongly interpreted first date of hearing. Accordingly writ petition is allowed. Judgments, decree and order passed by the Courts below are set aside. Suit of the plaintiff for eviction is dismissed.

I have held in Khursheeda v. A.D.J., 2004(2) JCLR 452 (SC) : 2004 (55) FLR 586, that while granting relief against eviction to a tenant of a building covered by U.P. Rent Regulation Act Writ Court is empowered to enhance the rent to reasonable extent. According to the learned Counsel for petitioner tenanted house consists of only one room and monthly rent is Rs. 20/ (or Rs. 40/) Rs. 20/ is virtually no rent. Accordingly, it is directed that w.e.f. July 2005 onwards petitioner shall pay rent to the landlord respondent at the rate of Rs. 250/ per month.