Manoj Alias Rinku And Another vs Jay Prakash And 6 Others
2017 Latest Caselaw 7699 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 30
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 8084 of 2017
 

 
Petitioner :- Manoj Alias Rinku And Another
 
Respondent :- Jay Prakash And 6 Others
 
Counsel for Petitioner :- Pankaj Kumar,Tanisha J Monir
 
Counsel for Respondent :- Pratibha Singh,Ashok Kumar Singh,Rahul Sahai
 

 
Hon'ble Vivek Kumar Birla,J.

1. Heard Ms. Tanisha J. Monir, learned counsel appearing for the petitioners and Sri Rahul Sahai, learned counsel appearing for the respondents.

2. Present writ petition has been filed with the following prayer:

"i) call for the records of the case from the Court of the Additional District Judge, Court No. 1, Etah in SCC Revision No. 11 of 2012 - Manoj alias Rinku & Another Vs. Jay Prakash & Others and from the Court of the Civil Judge (Junior Division), Small Cause Court, Etah, in SCC Suit No. 12 of 1995 - Jay Prakash & Others Vs. Prabhu Dayal (deceased) represented through LRs and set aside the impugned judgment and decree dated 06.09.2017 passed by the Revisional Court (Annexure-16), and the impugned judgment and decree dated 29.09.2012 passed by the Trial Court (Annexure-11) respectively, reverse the same, and, may be pleased to dismiss the Plaintiff Respondent's suit;

ii) Issue any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case; and

iii) award costs in favour of petitioner."

3. A suit for rent and eviction was filed by the plaintiff against the defendant and a reference to bonafide need of the landlord was also mentioned in the plaint. The suit was contested by the tenant and several issues were framed. Relevant issue before this Court is as to whether the tenant is entitled for the benefit of Section 20 (4) of Act 13 of 1972 as according to the tenant the rent was deposited on 4.9.1997, which according to the tenant is the first date of hearing and on that date itself the written statement was filed. The issue was decided against the tenant holding that 4.9.1997 was not the first date of hearing in view of Explanation to Section 20 (4) of the Act and as such the deposit was not made on the first date of hearing. The revision filed by the tenant was also dismissed and finding on this issue was upheld noticing various dates and also the fact that whatever amount was deposited, the same was deposited in the name of Jagdish and not in the name of the plaintiffs.

4. Present writ petition has been filed solely on the ground that the issue as to whether the tenant is entitled for the benefit of Section 20 (4) of the Act, has been incorrectly decided as the first date of hearing is 4.9.1997 when the written statement was filed and the trial court was yet to apply its mind to determine the point in controversy between the parties and to frame issues, if necessary. Reliance was placed on a judgment of the Hon'ble Apex Court in the case of Siraj Ahmad Siddiqui Vs. Prem Nath Kapoor AIR 1993 SC 2525.

5. Per-contra, Sri Rahul Sahai, learned counsel appearing for the respondent - landlord has submitted that the Explanation to Section 20 (4) of the Act is clear on the point. He further submitted that this has also been specifically provided under proviso to Order V Rule 5 of the Code of Civil Procedure. He further submitted that the first date of hearing would not change with every adjournment sought by the tenant and the conduct of the tenant is also to be seen. He further submitted that the first date would be the date when the court proposes to apply its mind and not the date when the court actually applies its mind. He pointed out that the suit was instituted on 1.12.1995; service was found to be sufficient on 21.5.1996; the tenant put in appearance and filed his Vakalatnama on 30.5.1996 and on this date he moved an application seeking two months' time for filing written statement, which was allowed and thereafter several adjournments were taken and ultimately the written statement was filed after more than a year on 4.9.1997 and on that date only the amount was deposited. Submission therefore, is that by no stretch of imagination 4.9.1997 can be treated to be the first date of hearing. Drawing attention to the order-sheet of the court he further submitted that in the present case on 30.5.1996 when the matter was adjourned on the request of the tenant the next date fixed was 8.8.1996 for filing written statement plus framing of issues and therefore, submission is that the first date fixed was 8.8.1996. He has also drawn attention to various subsequent dates whereon the dates were fixed for filing written statement and for framing issues. Attention was drawn specifically 10.2.1997, 20.4.1997 and 29.5.1997. Submission, therefore, is that by no stretch of imagination 4.9.1997 can be treated to be the first date of hearing and as such there was clear default in making deposit and no benefit of Section 20 (4) of the Act can be extended to the tenant. In support of his submission, learned counsel for the respondents has placed reliance on a judgment of the Hon'ble Apex Court in the case of Ashok Kumar and others Vs. Rishi Ram and others 2002 (2) ARC 160.

6. I have heard the rival submissions and have perused the record.

7. For ready reference, Section 20 (4) of the Act is quoted as under:

"20. (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 deposit in Court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent 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 a contested suit."

Reference may also be made to Order V Rule 5 of the Code of Civil Procedure, which is also quoted as under:

"5. Summons to be either to settle issues or for final disposal.- 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; and the summons shall contain a direction accordingly:

Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit."

(Emphasis supplied)

8. Coming to the argument advanced by learned counsel for the petitioners it would be beneficial to extract paragraphs 13, 14 and 16 of Siraj Ahmad Siddiqui (supra), which are quoted as under:

"13. 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.

14. We must now consider the judgment of the Allahabad High Court in Sri Nath Aggarwal's case from which support has been derived in the 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 moto 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 till 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 ejected.

15. 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.

16. 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, 1984 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."

(Emphasis supplied)

9. In paragraph 13 of this Act provision of Section 20(4) of the Act has been specifically dealt with and considering the provision of the Code of Civil Procedure it was observed that there is nothing in the Act which conflicts with the provisions of the Code in this behalf and it was further held 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. It may be noticed that in this judgment the Hon'ble Apex Court although has noticed Order V Rule 5 CPC but has not considered the effect of Order V Rule 5 of the CPC proviso of which provides that in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. It may be further noticed that in paragraph 14 of this very judgment the judgment of this Court was considered by the Hon'ble Apex Court wherein such benefit of deposit on a subsequent date was refused by this Court. In paragraph 15 the Hon'ble Apex Court approves the ratio of the judgment of this Court and in paragraph 16 various date of the particular case was discusses and finding was recorded.

10. It would also be beneficial to refer paragraph 12 of Ashok Kumar (Supra), which is quoted as under:

"12. 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 for subsequent date it would be irrelevant because the date of first hearing of the suit is the date when the Court proposes to apply its mind that not the date when it actually applies its mind. It was further held that 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 proposes 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."

(Emphasis supplied)

11. A perusal of the aforesaid paragraph clearly indicates that it has been clearly held that though the suit was again adjourned for subsequent date it would be irrelevant because the date of first hearing of the suit is the date when the Court proposes to apply its mind that not the date when it actually applies its mind. It was further held that 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 proposes to apply its mind and as such applying the ratio of the abovenoted cases in the present case there appears no difficulty in holding that 4.9.1997 was definitely not the first date of hearing and as such there was clear default in making deposit on the first date of hearing. At the cost of repetition a reference may be made to the dates of the present case once again. The suit was instituted on 1.12.1995; summons were found to be sufficient on 21.5.1997; vakalatnama was filed by the tenant on 30.5.1996 and two months time was sought for filing written statement which was allowed; the next date fixed was 8.8.1996 for filing written statement and for framing issues. Subsequently several adjournments were sought and were granted to the tenant. On 10.2.1997 next date fixed was 6.3.1997 for argument. Thereafter again adjournments were sought and dates were fixed for filing written statement. On 29.5.1997 next date fixed was 24.7.1997 for filing written statement and for framing issues. Thereafter again on 24.7.1997, 4.9.1997 was fixed for filing evidences and issues. On this date i.e. 4.9.1997 the written statement was filed and the amount was deposited. Clearly in this case the first date of hearing was when the Court proposes to apply its mind and several dates were fixed for framing issues and as already noticed and laid down by the Hon'ble Apex Court as well as specifically provided under Explanation to Section 20 (4) and Order V Rule 5 CPC the adjournment would not change the first date of hearing.

12. In such view of the matter, I do not find any legal infirmity in the order impugned herein.

13. Submission of learned counsel for the petitioners has not merit and is liable to be rejected and is hereby rejected.

14. I do not find any jurisdictional error in the order impugned herein.

15. This writ petition is devoid of merit and is, accordingly, dismissed.

16. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the tenant- petitioners before the Court below, it is provided that:

(1) The tenant-petitioners shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.5.2018.

(2) The tenant-petitioners shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;

(3) The tenant-petitioners shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order;

(4) The tenant-petitioners shall pay damages @ Rs. 2,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.5.2018 or till the date he vacates the premises whichever is earlier and the landlord is at liberty to withdraw the said amount;

(5) In the undertaking the tenant-petitioners shall also state that they will not create any interest in favour of the third party in the premises in dispute;

(6) Subject to filing of the said undertaking, the tenant-petitioners shall not be evicted from the premises in question till the aforesaid period;

(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.

(8) In case the shop is not vacated as per the undertaking given by the petitioners, they shall also be liable for contempt.

No order as to costs.

Order Date :- 6.12.2017

p.s.