Rafiq alias Mohammed Rafiq vs Rajjaq

V.K. Shukla, J.—This is tenant''s petition questioning the validity of the judgment and decree dated 14.08.2007 passed by Judge Small Causes Court, Agra in JSCC Suit No. 58 of 2005 as affirmed in Revision No. 52 of 2007.

Brief background of the case is that petitioner is tenant of property No. 38/62 Idgah Katghar District Agra on monthly rent of Rs. 100/- per month besides water tax. As per landlord petitioner was in arrears of rent w.e.f. 01.01.1999 and notice was given on 18.11.2003 and as rent in question has not been paid and as material alteration has been done, JSCC Suit No. 58 of 2005 was filed for arrears of rent and ejectment on the ground that petitioner has been in arrears of rent and petitioner has materially altered the constructions and have diminished the value of suit tenement. Written statement has been filed to the said JSCC suit and plaint allegations were denied. Evidence was led from both sides and thereafter Judge Small Cause Court on 14.08.2007 decreed the said suit holding therein that on the first date of hearing amount as specified u/s 20(4) of U.P. Act No. XIII of 1972 has not been deposited. Against the said order Revision was filed and Revisional Court affirmed the aforesaid finding and further Revisional Court also proceeded to mention that material alteration has been made without taking permission from the landlord. At this juncture present writ petition has been filed.

Sri A.K. Gupta, learned Counsel for the petitioner contended with vehemence that on the first date of hearing entire amount in question has been deposited as such tenant-petitioner is fully entitled to get the benefit as envisaged u/s 20(4) of U.P. Act No. XIII of 1972 and further Revisional Court has totally transgressed and over stepped its jurisdiction by mentioning that tenant-petitioner had made material alteration without recording any finding of fact that said material alteration has not at all diminished the value of the property, as such writ petition in question deserves to be allowed.

Countering the said submission Sri Asim Kumar Singh, Advocate contended that on admitted position on the first date of hearing amount as envisaged u/s 20(4) of U.P. Act No. XIII of 1972 has not at all been deposited as such decree of ejectment is not at all liable to be interfered with and on the question of material alteration, he conceded that it is true that same has not diminished the value of the property in question.

After respective arguments have been advanced question which is being adverted to, as to whether petitioner deposited entire amount in term of Section 20(4) of U.P. Act No. XIII of 1972 entitling the tenant-petitioner to save himself from eviction decree being passed.

In order to appreciate respective arguments, Section 20 (4) of U.P. Act No. XIII of 1972 is being reproduced below:

20 Bar of suit for eviction of tenant except on specified grounds-(1)....

(2) ...

(3) ...

(4) In any suit for eviction on the ground mentioned in Clause (a) of Sub-section (2) if at the first hearing of the suit the tenant unconditionally pays or [tenders to the landlord or deposits in Court] the entire amount of rent and damages for use and occupation of the building due from him (such damages for the use and occupation being calculated at the same rate, as rent) together with interest thereon at the rate of nine percent per annum and the landlord''s costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under Sub-section (1) of Section 30 the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground.

Provided that nothing in this sub-section shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area.

Explanation- For the purposes of this sub-section:

(a) the expression "first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant;

(b) the expression ''''cost of the suit'' includes one-half of the amount of counsel''s fee taxable for contested suit.

Bare perusal of the provision quoted above would go to show that Chapter IV of U.P. Act No. 13 of 1972 deals with regulation and eviction. Sub-section (1) of Section 20 of U.P. Act No. 13 of 1972 bars suit for eviction of tenant except on specified grounds as provided in Sub-section (2) of Section 20. Sub-section (2) of Section 20 provides and gives right to landlord to institute on one or more ground mentioned, suit for eviction of tenant from a building after determination of his tenancy. Under Clause (a) of Sub-section (2) of Section 20 of the Act, the ground provided for is that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Thus, this provision is clear that from the date of service of notice of demand in case tenant proceeds to pay arrears of rent, which is not less than four months, to the landlord within one month, the tenant can save himself from institution of suit and in case tenant has chosen not to make payment within one month from the date of service of notice of demand then after institution of suit another opportunity is provided to him to save his eviction by depositing said amount and another amount provided for on the first day of hearing. Thus, two opportunities have been provided to the tenant; (i) pre-institution of suit to make payment within one month from the date of service of notice of demand upon him and (ii) post institution of suit: on the first date of hearing make payment unconditionally entire amount of rent and damages together with interest and cost of suit. In case on second occasion petitioner fails to deposit the amount on first date of hearing then there is no option except for passing decree and order of eviction in terms of provision mentioned above.

The "first date of hearing" has been subject matter of interpretation before Hon''ble Apex Court as well as this Court on various occasions and Hon''ble Apex Court in the case of Siraj Ahmad Siddiqui v. Prem Nath Kapoor 1993 (22) ALR 375, took the view that meaning of the expression "first hearing" is the date on which court proposes to apply mind to determine the points in dispute and to frame issues. In the said case summons was not served, but the appellant appeared before the court and prayed for grant of time and another date was fixed as the date of hearing. Entire rent was deposited, and the view taken was that on the first date of hearing full amount of rent was deposited. Therefore, there was compliance by the appellant with the provisions of Section 20 94) of U.P. Act No. XIII of 1972, prior to the date fixed by the Court for the defendant to take the first step in the suit. Relevant paragraphs 10, 11, 12, 13, 14, 15 and 16 of the said judgment are being extracted below:

Learned Counsel for the respondent drew attention to the provisions of Section 20(4) of the said Act and laid emphasis upon the Explanation thereto which said that for the purpose of this sub-section the expression "first hearing" meant the first date for any step or proceedings mentioned in the summons served on the defendant. In his submission, the date of first hearing was the date of the service of the summons on the appellant, which, in the instant case, had to be presumed since the summons had been returned by the postal authorities with the remark "Refused". We do not question the latter part of the submission but, in our view, the date of the first hearing cannot, plainly, be the date of service of the summons. That is plain from the expression "first hearing" itself and from the meaning given to it in the said Act.

In the alternative, learned Counsel for the respondent submitted that the date of first hearing was 24th February, 1984 because that was the date of hearing at which the court had made the order quoted above.

A few provisions of the said Act and of the Code of Civil Procedure, 1908, need to be examined. Section 38 of the said Act states that the provisions thereof would have effect notwithstanding anything inconsisent therewith contained in the Code. Order V, Rule 1 of the Code states that when a suit has been duly instituted summons may be issued to the defendant to appear and answer the claim on a day to be therein specified, provided that no summons need be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiffs claim. Where the summons is issued the court may direct the defendant to file a written statement on the date of his appearance and cause an entry to that effect to be made in the summons. Order V, Rule 5 provides that in every suit heard by a Court of Small Causes (which the trial Court was) the summons shall be for the final disposal of the suit. Order VIII, Rule 1 of the Code uses the expression first hearing and it says that the defendant shall on or before the first hearing or within such time as the court may permit present a written statement of his defence. The court is called upon to frame issues under the provisions of Order XIV, Rule 3 on the basis of the pleadings and documents of either party to the suit.

The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. Does the definition of the expression "first hearing" for the purposes of Section 20(4) mean something different? The "step or proceedings mentioned in the summons" referred to in the definition should, we think, be construed to be a step or proceeding to be taken by the court for it is, after all, a "hearing" that is the subject matter of the definition, unless there be something compelling in the said Act to indicate otherwise; and we do not find in the said Act any such compelling provision. Further, it is not possible to construe the expression "first date for any step or proceeding" to mean the step of filing the written statement, though the date for that purpose may be mentioned in the summons, for the reason that, as set out earlier, it is permissible under the Code for the defendant to file a written statement even thereafter but prior to the first hearing when the court takes up the case, since there is nothing in the said Act which conflicts with the provisions of the Code in this behalf. We are of the view, therefore, that the date of first hearing as defined in the said act is the date on which the court proposes to apply its mind to determine the points in controversy between the patties to the suit and to frame issues, if necessary.

We must now consider the judgment of the Allahabad High Court in Sri Nath Agrawal Vs. Sri Nath, from which support has been derived in the judgment of the trial Court and the High Court and which the appellant claims is, in fact, in his favour. In the court below the case of the defendant therein was that since he had deposited the entire amount before the first date of hearing he was entitled to the protection of Section 20(4) of the said Act, but this contention was rejected and the defendant filed a revision application before the High Court. It was argued on his behalf that, admittedly, no summons had been issued and, therefore, he had not been given the opportunity of taking the benefit of Section 20(4) of the said Act by depositing the requisite monies on or before the first date of hearing. The defendant had, admittedly, deposited the entire amount due from him on 24th October, 1978, which was the first date when the court applied its mind and this should be treated as the date of the hearing of the suit. Prior to this date no other date had been fixed for the hearing of the suit. Notice was taken of the provisions of Section 20(4) of the said Act and the Explanation thereto defining the expression first hearing. The High Court said that if the defendant appears before the court after the registration of the suit and he is informed about the nature of the claim and the date fixed for reply thereto, the defendant must be deemed to have waived the right to the summons served on him. the same legal position would arise when a defendant suo motu appeared before the court before. the actual service of the summons. In such a case, if some date was fixed for filing the written statement or for the hearing of the suit it would be too technical to hold that service of the summons in the ordinary course was still required and that further proceedings in the suit would take place only thereafter. The High Court concluded (in para 10) by holding that when the order was passed on 11th September, 1978 in the presence of counsel for the defendant fixing the date for filing of the written statement and the date for the final hearing, the summons was issued and served on the defendant within the meaning of the Explanation to Section 20(4) of the said Act on that day. Since 11th September, 1978 was the date when the summons was so served and one month''s time was allowed for filing the written statement, though it might be the date for the taking of a step by the defendant, the defendant should have complied with the provisions of Section 20(4) of the said Act by that date. This had not been done. The rent had been deposited only thereafter. In those circumstances, it was held that the defendant could not avail of the advantage of Section 20(4) and was liable to be rejected.

We are in agreement with the ratio of the judgment in so far as it says that when time is fixed by the court for the filing of the written statement and the hearing, these dates bind the defendant, regardless of the. service of the summons, and compliance with the provisions of Section 20(4) of the said Act must be judged upon the basis of the dates so fixed.

The date of first hearing in the instant case is not, therefore, 24th February, 1984 when the trial court passed orders on the application of the appellant for time to file a written statement and permission to deposit the full amount of the arrears. The contention of learned Counsel for the respondents to this effect must be rejected. Now, 24th February, 1994 was a date earlier than the date of hearing mentioned in the summons, namely, 28th February, 1984. The trial court gave to the appellant time until 24th March, 1984 to file his written statement and deferred the date of final hearing to 12th April, 1984, expressly cancelling the date 28th February, 1984 given in the summons. In our view, whether or not the provisions of Section 20(4) of the said Act were complied with by the appellant must be judged by the date of hearing so fixed. The full amount of the arrears were deposited on 5th March, 1984; there was, therefore, compliance by the appellant with the provisions of Section 20(4) of the said Act prior to the earliest date fixed by the court for the defendant to take the first step in the suit.

Hon''ble Apex Court in the case of Advaita Nand v. Judge, small cause Court Meerut and Ors. 1995 (26) ALR page 71, took the view that the first date of hearing would be the date on which the court proposes to apply is mind i.e. the date fixed for final hearing of the suit and it cannot be the date fixed for filing the written statement. Relevant paragraphs 6, 8, 9, and 10 of the said judgment are being extracted below:

We are unable to uphold the said contention, We find that in Siraj Ahmad Siddiqui (supra), this Court took note of the Explanation and has observed that it was not possible to construe the words "first date for any step or proceeding" which were contained in the Explanation, to mean the step of filing written statement, though the date for that purpose may be mentioned in the summons, for the reason that it is permissible under the CPC for the defendant to file a written statement even thereafter, but prior to the first hearing when the Court takes up the case. It cannot therefore, be said that the Explanation to Section 20 (4) was not given due due consideration by this Court in Siraj Ahmad Siddiqui (supra). The said decision shows that even after the insertion of the Explanation, the expression "first hearing of the suit" in Section 20 (4) means the date on which the Court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary.

Applying the law laid down in Siraj Ahmad Siddiqui (supra), it must be held that the first date of hearing of the suit was July 24,1990 which was the date for final hearing fixed on March 28, 1990 and the Courts below have erred in proceeding on the basis that the date of first hearing was April 27, 1990. Since the arrears of rent were deposited on May 2, 1990 before July 24, 1990, the date of first hearing, the appellant was entitled to avail the protection of Section 20 (4) of the Act.

The High Court has placed reliance on the decision of this Court in Sri Nath Agrawal v. Sri Nath 1983 (2) ARC 422. On the view that the said decision has been affirmed by this Court. In Sri Nath Agrawal (supra), the defendant was allowed one month''s further time for filing written statement and the amount of rent was deposited after the expiry of the time allowed for filing the written statement and it was held that the defendant could not avail the benefit of Section 20(4). In taking this view the High Court has not correctly appreciated the decision of this Court. After referring to the judgment in Sri Nath Agarwal (supra), this Court has observed.

We are in agreement with the ratio of the judgment insofar as it says that when time is fixed by the Court for the filing of the written statement and the hearing, these dates bind the defendant, regardless of the service of the summons, and compliance with the provisions of Section 29(4) of the said act must be judged upon the basis of the date so fixed.

The aforesaid observations would show that this Court has agreed with the ratio of the judgment in Sri Nath Agarwal (supra)only to the extent that when time is fixed by the court for the filing of the written statement and the hearing, these dates bind the defendant, regardless of the service of the summons and that the compliance with the provisions of Section 20(4) of the Act must be judged upon the basis of the dates so fixed. The said observations cannot be construed to meant that the Court has approved the said decision insofar it holds that compliance with the provisions of Section 20(4) of the Act was required to be made within the period of one month allowed by the Court for the filing of the written statement.

Hon''ble Apex Court in the case of Sudarshan Devi v. Sushila Devi 1999 (37) ALR 496, has taken the word "first hearing" would mean the date proposed for hearing, and the date proposed for applying court''s mind to determine the points in controversy and not the date for filing written statement. Relevant paragraphs 27, 30, 31 and 32 of the said judgment are being extracted below:

Thus both in Siraj Ahmad Siddiqui and Advaita Nand this Court construed Section 20(4) and the Explanation to say that the date of first hearing of the suit would not be the date fixed for filing the written statement but would be the date proposed for the hearing i.e. the date proposed for applying the Court''s mind to determine the points in controversy and to frame issues, if necessary. These decisions are binding on us. Point 1 is decided accordingly.

The position after Siraj Ahmad Siddiqui Vs. Shri Prem Nath Kapoor, and Advaita Nand Vs. Judge, Small Cause Court, Meerut and Others, is as follows. This Court held in those cases that the date fixed for filing the written statement was not the due date and that it was the fresh date proposed for ''first hearing'' of the suit that would be the due date. It was observed, that the crucial date even after the Explanation was the date on which:

the Court proposes to apply its mind to determine the points in controversy between the parties to this suit and to frame issue if necessary.

In our view, the use of the word "proposing to apply its mind" and the word "for" final hearing used in Siraj Ahmad Siddiqui''s case and in Advaita Anand''s case are significant. In fact, though Section 20(4) uses the word "at", the Explanation uses the word ''for''. Therefore, we cannot accept the contention of the learned Counsel for the tenant-appellants that the due date is the actual date when the final hearing takes place. The due date is the date fixed in the summons for final hearing as explained above in Point 1.

In the present case before us, the case being one tried by the Small Cause Court, the summons initially stated that the date for first hearing i.e. the date fixed for final hearing would be 22-2-90. All the three courts below, therefore, held that the crucial date was 22-2-90 and there was clear default by 22-2-90. But, in our opinion, 22-2-90 would not be the due date. The summons were served in this case by the method of substituted service and it was common ground that the summons were not accompanied by the plaint. The tenant therefore filed an IA seeking a copy of the plaint. That application was allowed and a fresh date for filing written statement and a fresh date for ''first hearing'' were given. The fresh date for final hearing was 12-4-90. But the arrears were not deposited even by that date.

It is also true that on 12-4-90, the Presiding Officer was on training but that, in our view, is not relevant in as much as there is no difficulty in depositing the rents etc. in the manner prescribed.

Hon''ble Apex Court in the case of Ashok Kumar and Ors. v. Rishi Ram and Ors. 2004 (48) ALR 401, again reiterated the same proposition and took the view that date of first hearing of the suit is the date when court proposes to apply its mind and not the date when it actually applies its mind. The first hearing of suit would not change on every adjournment of sit for final disposal. Relevant paragraph 11 of the said judgment are being extracted below:

Now adverting to the facts of the case on hand it has been noticed above that the suit was posted on May 20, 1980 for final disposal but that date cannot be treated as the first hearing of the suit as the Court granted time till July 25, 1980 to the tenant for filing written statement. On July 25, 1980 time was extended for filing written statement and the suit was again adjourned for final disposal to October 10, 1980. Inasmuch as after giving due opportunity to file written statement the suit was posted for final disposal on October 10, 1980 it was that date which ought to be considered as the date fixed by the Court for application of its mind to the facts of this case to identify the controversy between the parties and as such the date of first hearing of the suit. Admittedly, on that date the appellant-tenant deposited all the arrears of rent. Though, the suit was again adjourned to December 5, 1980, it would be irrelevant because the date of first hearing of the suit is the date when the court proposes to apply its mind and not the date when it actually applies its mind. It follows that the first hearing of the suit would not change on every adjournment of the suit for final disposal. The effective date of the first hearing of the suit on which the Court proposed to apply its mind, on the facts of the case, was October 10, 1980, as stated above. The amount of arrears of rent having been paid on that date, there is compliance of Sub-section (4) of Section 20 of the U.P. Act so the tenant is entitled to the benefit of the said provision.

Now on the parameters, which has been set out the facts of the present case are being adverted to. In the present case petitioner-tenant entered appearance on 04.08.2005 which was the date fixed for filing written statement/final hearing. On the request of the petitioner-tenant next date fixed was 05.09.2005. On 05.09.2005 next date fixed was 30.09.2005 and on 30.09.2005 next date fixed was 08.11.2005 and on the said date as petitioner-tenant has not entered appearance order was passed to proceed exparte against the petitioner. After the said order has been passed an application was moved for setting aside order to proceed ex-parte. Said application was allowed on 09.12.2005 and the next date fixed in the matter was 25.01.2006 for final hearing and on 25.01.2006 next date was fixed was 21.02.2006. In between on 31.01.2006 application was moved for passing of tender and tender amount was deposited on 01.02.2006. It has been contended on behalf of the tenant-petitioner that 31.01.2006 should be treated as first date of hearing. There is complete misconception in the mind of the petitioner for the simple reason that on 08.11.2005 categorical order was passed for proceeding ex parte and thereafter application was moved on behalf of the petitioner for recall of the said order and said order was recalled on 09.12.2005, fixing 25.01.2006 for final hearing. Thus, once order to proceed exparte was recalled on 09.12.2005 and the next date fixed was 25.01.2006, then 25.01.2006 in the fact of the case would be the first date of hearing. Merely because on 25.01.2006 no hearing whatsoever has taken place, same does not ipso facto means that first date of hearing automatically stood changed. Date of first hearing of the suit, is the date when court proposes to apply its mind and not the date when it actually applies its mind. First date of hearing would not change on every adjournment. In the facts of the present case both the courts below are not at all in error in recording finding that on the first date of hearing petitioner had not at all deposited amount in question as such petitioner has rightly not been extended the benefit u/s 20(4) of U.P. Act No. XIII of 1972. Consequently benefit of Section 20(4) of U.P. Act No. XIII of 1972 was not at all liable to be extended.

Petitioner has placed reliance on the judgment of this Court in the case of Hira Lal and other v. Ram Das reported in 2006 (3) ARC 657. Facts of the said case would not come to the rescue of the petitioner as in the said case tenant appeared on 29.08.1986, filed application for setting aside order dated 22.08.1986 and said application was allowed and 09.10.1986 was fixed for hearing and written statement and admittedly entire compliance of Section 20(4) was made by the tenant on 29.08.1986. Here facts are altogether different. Consequently, in the facts of the present case once on the first date of hearing amount in question has not been deposited as per the provision as contained u/s 20(4) of U.P. Act No. XIII of 1972, as such no error could be found.

Consequently, present writ petition is dismissed. Petitioner is accorded six month''s time to vacate the premises in question and hand over its peaceful vacant possession to the respondent-landlord, subject to the condition that within one month from today affidavit shall be filed by the petitioner before the Judge Small Cause Court that premises in question will be vacated on or before expiry of the period as aforesaid. In the event of affidavit not being filed within one month from today, the interim protection shall cease to operate, and landlord would be at liberty to proceed accordingly, and interim protection of this Court would not come to rescue of petitioner.

No order as to costs.