Varun Kumar Gupta vs Sh. Om Prakash

Tarun Agarwala, J.—This is a landlord''s revision having filed before the Judge, Small Cause Court. A suit for arrears of rent and for eviction of the tenant was filed on the ground of non-deposit of the rent u/s 20(4) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred as the Act of 1972). The Judge, Small Cause Court issued summons fixing 21st March, 2007 for the final hearing of the suit. On the said date, the opposite party entered appearance and unconditionally deposited a sum of Rs. 50,000/- towards the arrears of rent, etc., which was allowed by the court below and 25th April, 2007 was fixed for filing the written statements and/or for final hearing of the suit. The ordersheet indicates that the matter was adjourned and 16th May, 2007 was fixed for filing the written statements and/or for final hearing of the suit. On 16th May, 2007, the tenant opposite party deposited a further sum of Rs. 6,000/- toward;; the arrears of rent, which was also accepted by the court below. It has also come on record that the written statement was eventually filed on 30th May, 2007.

The trial court, after considering all aspects of the matter, held that the tenant was in arrears of rent and therefore the landlord had a cause to file a suit for eviction. The Judge, Small Cause Court further found that the tenant had deposited the entire arrears of rent unconditionally on or before the first date of hearing and, therefore, gave the benefit of Section 20 Sub-clause (4) of the Act of 1972 and, consequently dismissed the suit of the landlord. The landlord, being aggrieved, has filed the present revision u/s 25 of the Provincial Small Cause Courts Act, 1887.

Heard Sri Atul Bansal, the learned Counsel for the revisionist and Sri Vipul Sharma, the learned Counsel for the opposite party.

The sole contention advanced by the learned Counsel for the revisionist is, that the tenant opposite party did not deposit the entire arrears of rent, etc. on the first date of hearing. The learned Counsel for the revisionist submitted that in a proceeding initiated under the Provincial Small Cause Courts Act, the first date of hearing is the proposed date of final hearing as fixed in the summons, which in the present case was 21st March, 2007 and, admittedly, the entire amount of Rs. 56,000/- was not deposited by the opposite party and that only a sum of Rs. 50,000/- was deposited. Consequently, the learned Counsel for the revisionist submitted that the benefit of Sub-clause (4) of Section 20 of the Act of 1972 could not be given to the tenant opposite party and that the suit was liable to the decreed in favour of the landlord. In support of his submission, this learned Counsel for the revisionist placed reliance upon a decision in Mam Chand Pal Vs. Shanti Agarwal, where the court held as under:

So far the question as to the meaning of the date of first hearing is concerned, the position stands well settled that it is the date on which the Court applies its mind to the facts and controversy involved in the case. Any date prior to such a date would not be date of first hearing. For instance date for framing of issues would be the date of first hearing when the Court is to apply his mind to the facts of case. As it relates to proceedings under the Small Cause Courts Act there being no provision for framing of issues any date fixed for hearing of the case would be the first date for the purpose.....

In the light of the aforesaid, the learned Counsel for the revisionist submitted that there being no provision for the framing of the issues in a proceeding under the Small Cause Court Act, consequently, the date fixed for hearing of the case in the summons would be first date for the purpose of deposit of the arrears, etc. u/s 20 Sub-clause (4) of the Act of 1972.

In my opinion, the submission of the learned Counsel for the revisionist is bereft of merit. The first date of hearing has been a vexed issue, which came up for consideration in several decisions and, ultimately, the Supreme Court has held that the first date of hearing is the date when the court applies its mind to the issues involved. In the case of Sudershan Devi and Anr. v. Sushila Devi reported in 1999 A.L.J. 2394, the Supreme Court after considering the provisions of Section 20 Sub-clause (4) of the Act of 1972 prior to the amendment as per Act No. 28 of 1976 and thereafter considering the provision of Order 5 Rule 5 of the CPC held as under:

...the date of first hearing of the suit would not be 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.

This view was taken after noticing the earlier decision of the Court in Siraj Ahmad Siddiqui Vs. Shri Prem Nath Kapoor, and in Advaita Nand Vs. Judge, Small Cause Court, Meerut and Others, . Similar view was again reiterated by the Supreme Court in Ashok Kumar and Others Vs. Rishi Ram and Others, .

In the light of the aforesaid decisions, it is clear that the first date of hearing is the date on which the court proposes to apply its mind. The contention of the learned Counsel for the revisionist that the procedure in a proceeding under the Small Cause Courts Act and the procedure in a regular suit, in relation to the first date of hearing, being different, is not correct. The Supreme Court in the case of Advaita Nand (supra) held that even though, the issues are not required to be framed in a proceeding under the Small Cause Courts Act and only a date is fixed for the purpose of final hearing of the suit, but, for the purpose of such suit, the first hearing of the suit would mean the date when the court proposes to apply its mind.

In the light of the aforesaid, this Court finds that the court below applied its mind for the first time on 30th May, 2007 on the date when the opposite party filed his written statement, prior to which, the deposits had already been made on 21st March, 2007 and 16th May, 2007. Consequently, the benefit of Sub-clause (4) of Section 20 of the Act of 1972 was rightly given to the tenant by the court below. This Court does not find any error in the impugned order. The revision fails and is dismissed.