Sri Om Prakash vs Sri Anil Kumar
2012 Latest Caselaw 5345 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 7
 

 
Case :- WRIT - A No. - 19834 of 2003
 

 
Petitioner :- Sri Om Prakash
 
Respondent :- Sri Anil Kumar
 
Petitioner Counsel :- Madhav Jain,Manish Goyal,Shri Krishna Shukla
 
Respondent Counsel :- M.K. Gupta
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Manish Goyal, learned counsel for the petitioner and Sri Pankaj Agarwal, holding brief of Sri M.K.Gupta, learned counsel for the respondent.

2. The landlord, having failed in his attempt to evict his tenant on the ground that there has been default in payment of rent, has come to this Court by means of present writ petition, filed under Article 226 of the Constitution.

3. The petitioner, Om Prakash, is owner and landlord of shop No.2/27, Seth Gali, Agra. Anil Kumar, the sole respondent, is the tenant. The petitioner filed suit no.47 of 1995 alleging that respondent-tenant has committed default in payment of rent since 1.4.1989 and despite issuance of registered notice dated 19.1.1991, served upon the tenant personally on 23.1.1991, rent has not been paid hence his tenancy stood terminated and he is liable for eviction. He also sought a decree of recovery of arrears of rent, damages and mesne profit.

4. The respondent-tenant contested suit stating that rent sent by money order but landlord declined to accept the same whereafter it was deposited under Section 30(1) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") in Misc. Case No.93 of 1989. The notice received from landlord was duly replied and information of aforesaid deposit was also given, hence, the suit is liable to be dismissed.

5. The Trial Court i.e. Judge Small Cause Court, Agra vide judgment dated 14.3.1997, decreed the suit holding that whatever amount was paid by tenant up to the date of "first hearing" in order to seek benefit under Section 20(4) of Act, 1972, it comes to Rs.8,137/- though he was supposed to pay Rs.8,257=15. There was a deficiency of Rs.120.15 which is a substantial amount, hence tenant is not entitled for benefit under Section 20(4) of the Act.

6. The matter was taken in the Court of Additional District Judge, Court No.3, Agra in Civil Revision No.76 of 1997 by tenant, where he succeeded and revision was allowed. Hence this writ petition.

7. Sri Manish Goyal, learned counsel for the petitioner submitted that entire dues, as contemplated in Section 20(4) of Act, 1972 were not paid by tenant on the first date of hearing and therefore, Appellate Court has erred in law in reversing decision of Trial Court. He pointed out that suit was registered on 22.5.1995. Summons were issued fixing 25.7.1995, for hearing. The written statement dated 17.7.1995 was taken on record by Trial Court on 25.7.1995 and then fixed 24.8.1995 for hearing. It is said that tenant deposited Rs.913/- on 11.7.1995 vide tender dated 11.7.1995 and Rs.6800/- on 25.8.1995. Subsequently, he deposited Rs.424.40 on 5.12.1995.

8. It is said that Rs.424.40, deposited on 5.12.1995 would not come to rescue respondent-tenant for the purpose of benefit under Section 20(4) of Act, 1972 and the revisional Court has erred in law by giving credit to the said payment without looking into the fact that first date of hearing could be 25.7.1995 and any deposit made thereafter shall not give any advantage to the tenant for the purpose of Section 20(4) of Act, 1972. Further, he said that even Rs.6800/- deposited on 25.8.1995 would not call for any credit for the purpose of attracting Section 20(4) of Act, 1972. The Court below in treating 1st May 1996 as "first date of hearing" has erred in law and therefore, impugned revisional judgment is liable to be set aside. In order to demonstrate as to what constitute "first date of hearing" he cited several authorities of Apex Court i.e. Ashok Kumar & Ors. Vs. Rishi Ram & Ors, 2002(2) ARC 160; Siraj Ahmad Siddiqui Vs. Prem Nath Kapoor, 1993(2) ARC 451, Advaita Nand Vs. Judge, Small Causes Court, Meerut & Ors., 1995(1) ARC 563; Sudershan Devi & Anr. Vs. Sushila Devi & Anr., (1999) 8 SCC 31, and this Court's judgment in Krishna Kumar Gupta Vs. XIVth Additional District Judge, Allahabad & Ors., 2004(2) ARC 659.

9. Sri Pankaj Agarwal, Advocate holding brief of Sri M.K.Gupta, Advocate however supported the revisional judgment on the strength of reason contained therein.

10. The expression "first hearing" has been explained in Section 20(4) Explanation (a) and reads as under:

"the expression "first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant."

11. This expression has been considered by Apex Court in Ved Prakash Wadhwa (supra). It was held that the date of "first hearing would not be before a date fixed for preliminary examination of parties and framing of issues". Similar was the view taken in an earlier judgment also in Advaita Nand (supra).

12. A three-Judge Bench of Apex Court also considered this issue in Siraj Ahmad Siddiqui Vs. Prem Nath Kapoor, 1993 (4) SCC 406 and said as under

"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 parties to the suit and to frame issues, if necessary."

13. Again it was considered in Sudarshan Devi (supra) and held that the date fixed for hearing of the matter is the date of first hearing and not the date fixed for filing of written statement. The Court observed that emphasis in the relevant provision is on the word "hearing". The Court also relied on its earlier decision in Ved Prakash Wadhwa (supra).

14. The matter again came to be considered in Mam Chand Pal Vs. Shanti Agarwal (Smt.), 2002 (3) SCC 49. Therein the suit was filed on 5.12.1988 and summons were issued fixing 19th January, 1989 for filing of written statement and 27th January, 1989 for hearing. The defendant was not served. The order was passed for service of notice on the defendant by publication fixing 3.7.1989 for hearing. By mistake in the publication, the date of hearing was shown as 26.4.1989 instead of 3.7.1989. On 26.4.1989, Presiding Officer was not available having proceeded for training. The case was thereafter adjourned to 11.5.1989 and further gone on adjournment for one or the other reasons on several dates. The Court held that in the present case 26th April, 1989 would not be regarded as "first date of hearing" since on that date the Presiding Officer was not available. In para 7 the court said, "where the Court itself is not available it could not be treated as the date of first hearing".

15. In Ashok Kumar & Ors. Vs. Rishi Ram and others, AIR 2002 SC 2520, the Court noticed distinction between the phraseology in Order XV, Rule 5 C.P.C. and Explanation (a) to sub-section (4) of Section 20 of Act, 1972 and in para 8, said:

"Rule 1 of Order V speaks of issue of summons. When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day specified therein. Rule 2 thereof enjoins that the summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Rule 5 of Order V says that the Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit which shall be noted in the summons. However, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. It may be apt to notice here that Sub-section (3) of Section 20 of the Act was deleted in U.P. Civil Laws Amendment Act, 1972 with effect from September 20, 1972 and Rule 5 was inserted in Order XV of the Civil Procedure Code which deals with disposal of the suit at the first hearing. Explanation 1 to Rule 5 of Order XV defines the expression "first hearing" to mean the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. But the said expression, as noticed above, is defined in Clause (1) of Explanation to Sub-section (4) of Section 20. Section 38 of the U.P. Act says that the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act or in Code of Civil Procedure, therefore, the definition contained in Clause (a) of Explanation to Sub-section (4) of Section 20 of the Act will prevail over the definition contained in Rule 5 of Order XV of the Code of Civil Procedure as applicable to the State of U.P. It is too evident to miss that in contra-distinction to the "filing of written statement" mentioned in the definition of the said expression contained in Rule 5 of Order XV, the language employed in Clause (a) of the Explanation to Section 20(4) of the U.P. Act, refers to 'the first date for any step or proceeding mentioned in the summons served on the defendant'. In our view those words mean the first date when the court proposes to apply its mind to identify the controversy in the suit and that stage arises after the defendant is afforded an opportunity to file his written statement." (emphasis added)

16. In para 12 of the judgment in Ashok Kumar (supra), considering the above observation and also relying on its earlier decisions in Sudershan Devi (supra), Advaita Nand (supra) and Siraj Ahmad Siddiqui (supra), the Court said:

"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."

17. It also held that once the date of "first hearing" is determined and thereafter the case is adjourned, the date of first hearing of the suit would not change on every adjournment of the suit for final hearing.

18. Thus the effective date of first hearing of the suit should be, when the Court proposed to apply its mind. Therefore it would be the date fixed earliest for final disposal/hearing and not adjourned for reasons attributable to the defendant-tenant. There are certain decisions of this Court also and I need not to burden this judgment giving in detail all such judgments except of making reference of some of those hereto i.e Mohd. Salim alias Salim Uddin Vs. 4th Addl. District Judge, Allahabad & Ors. 2001(2) AWC 1468, Har Prasad Vs. Ist A.D.J., Etah 2004 (56) ALR 460, Jai Ram Dass Vs. Iind Addl. District Judge, Jhansi & Ors. 2004(57) ALR 233, Chaturbhuj Pandey Vs. VI A.D.J., Kanpur & Ors. 2005 (60) ALR 697, Hira Lal & Ors. Vs. Ram Das 2006 (3) ARC 657 and Saadat Ali Vs. J.S.C.C., Moradabad & ors. 2006 (2) ARC 208.

19. In the present case the written statement was filed on 25.7.1995 whereafter 24.8.1995 was fixed as the date for first hearing but on that date there was some holiday and the matter was taken up on 25.8.1995 which, in my view, should have been the first date of hearing. All deposits made thereon or till that date are liable to be given due credit to find out whether there is compliance of requirement of Section 20(4) of Act, 1972 or not.

20. The Revisional Court has found that there was some discrepancy in the calculation of total dues and exact amount comes to Rs.8043/-, which ought to have been deposited by tenant upto the first date of hearing, but he had deposited Rs.8137/-. While arriving at the figure of Rs.8137/- he (revisional Court) has included Rs.424.40 deposited by tenant on 5.12.1995. If the amount of Rs.424.40 is excluded from total deposit, it comes to Rs.7712.60 showing a deficiency of Rs.331/- if the computation of required amount is found correct. Whether the deficiency of such amount would constitute a negligible amount or not is a separate issue. In my view, probably that would not be required to be looked into in the present case in view of the argument advanced by learned counsel for the respondent which is more substantive and has enough weight to prevail over the entire case.

21. Sri Pankaj Agarwal, learned counsel for the respondent-tenant contended that a tenant would be said to be in default to attract liability of eviction only if the conditions under Section 20(2)(a) of Act, 1972 are satisfied. It reads as the tenant must be in arrears of rent for not less than four months and has failed to pay the same to landlord within one month from the date of service upon him of the notice of demand. He pleaded that landlord did not receive rent from April, 1989 whereafter it was remitted by money order. That was also declined, hence in Misc. Case No.93 of 1989, rent was deposited under Section 30(1) of Act, 1972. The aforesaid deposit was recognized and honoured by landlord by issuing rent receipt No.306 dated 3.9.1989. The monthly rent thereafter continued to be paid in Misc. Case no.93 of 1989 and in view of Section 30(6), the amount deposited by respondent-tenant has to be "deemed payment" made to the landlord. Therefore, on 19.1.1991, when notice was issued, respondent-tenant was not in arrears of any amount of rent. The question of termination of his tenancy by notice dated 19.1.1991 would not arise. He further contended that it is not the case of petitioner-landlord that there is any subsequent default on the part of tenant in respect whereto his tenancy has been terminated.

22. Sri Manish Goyal, in reply to the above contention, stated, that such payment under Section 30(1) can be honoured only till the demand is not made by landlord. In the present case, even after receipt of notice dated 19.1.1991, tenant continued to make deposit in Misc Case No.93 of 1989 and therefore, entire deposit made shall not qualify for any purpose as it is wholly illegal.

23. As a proposition of law, what has been contended by Sri Manish Goyal cannot be accepted, inasmuch as, deposit of rent under Section 30(1) is permissible only till landlord expressed his willingness to accept rent. The notice dated 19.1.1991 was served upon the tenant on 23.1.1991. Therefore the rent payable for the month of February, 1991 and onwards ought to have been paid to the landlord directly and for that purpose deposit made under Section 30(1) cannot be looked into. But the deposit made for the month upto December, 1990 cannot be said to be vitiated in law for any purpose. Therefore, to find out whether there is any default on the part of tenant or not, what one has to look into is deposit made under Section 30(1) after December, 1990, and not for earlier period.

24. If the first date of hearing is taken to be 25.8.1995, it would mean that in order to comply requirement of Section 20(4), besides other expenses, tenant was required to deposit rent payable for the month upto July, 1995. Since the deposit of rent upto December, 1990 under Section 30(1) was liable to be taken into account, the tenant was liable to deposit rent from January, 1991 to July,1995 and other expenses in the Court below. It means that rent of 55 months besides other expenses was to be deposited with the Trial Court.

25. In the present case Court below has looked into the date of first hearing as 1.5.1996 and thereupon has calculated entire dues. This is apparently not correct. If the date of first hearing is taken to be 21.8.1995, one has to find out whether the amount payable upto that date stood paid or not.

26. As is already discussed above, tenant paid Rs.7713/- upto 25.8.1995 with the Trial Court i.e. Rs.913/- on 11.7.1995 and Rs.6800/- on 25.8.1995, which comes to Rs.7713. Against it, rent payable upto 25.8.1995 from January 1991 comes to Rs.3300/- and water tax @ Rs.7 per month comes to Rs.385/-. The total comes to Rs.3685/-. The amount of expenses have been taken as Rs.496.75 towards Court fees, Advocate fees Rs.124/-, clerkage Rs.12.50, Rs.240/- towards notice expenses and Rs.1470.32 towards interest. This interest has been calculated for a much longer period i.e. upto December, 1995. Even if all these expenses, as they are, are taken, it would come to Rs.2343.57. The total amount, thus, comes to Rs.6028.57 (Rs.3685/- + Rs.2343.57).

27. With the aforesaid amount, rent paid by the tenant for the period of April, 1989 to December, 1990 under Section 30(1) is also liable to be given due credit in view of Sub-Section (4) of Section 20 of Act, 1972.

28. The amount thus deposited by respondent tenant upto 25.8.1995 exceed much more than what he was required to deposit and there is no scope of any argument that he has not complied with requirement of Section 20(4) of Act, 1972.

29. Therefore, it cannot be said that respondent-tenant was liable for eviction from accommodation in question. The Revisional Court, therefore, has rightly allowed revision though in ultimate calculation of amount required to be deposited under section 20(4) of Act, 1972 etc., I find some glaring irregularity in orders of both the courts below and have discussed herein above from what is apparent and evident from record without disturbing the actual amount, date of payment etc.

30. In view of the above discussion, revisional order in so far as it has held that suit filed by landlord-petitioner was liable to be dismissed cannot be faulted.

31. The writ petition therefore, lacks merit.

32. Dismissed.

33. Interim order, if any, stands vacated.

Order Date :- 30.10.2012

KA