BAL MUKUND AGRAWAL v. DISTRICT JUDGE — 1976 DIGILAW 885 (ALL)

JUDGMENT : M.N. Shukla, J. This is a petition under Article 227 of the Constitution in which the Petitioner tenant has prayed for quashing of two orders dated 30.10.1973 (Annexure 4) and 6.2.1974 (Annexure 5) passed by the Civil Judge, Rae Bareli and the Distt. Judge, Rac Bareli respectively under Order 15, Rule 5, Code of Civil Procedure. 2. The material facts of the case are that Respondent No. 7 Mohammad Shafi, landlord, filed a suit against the Petitioner on 11.9.1969 in the court of Munsif, Rae Bareli for ejectment from the shop in suit and for recovery of Rs. 210/- as arrears of rent and Rs. 175/-as compensation for use and occupation. A written statement was filed by the Defendant on 30.4.1970. On 17.3.1972 the learned Munsif fixed 17.11.1973 for framing of issues. In the meantime, however, on 3.10.1972 the case was transferred to the court of the First Additional Munsif, Rae Bareli vide District Judge's order dated 26.9.1972 and on 27.11.1972 the transferee court fixed 14.12.1972 for issues. On the date fixed the case could not betaken up and 4.1.1973 was fixed as the next date for issues. On that date i.e. 4.1.1973 it, was discovered that the case was triable by the Judge, Small Causes Court in pursuance of Section 9 of the Civil Laws Amendment Act (U.P. Act 37 of 1972). Accordingly on 20.1.1973 the suit was transferred to the court of the Judge Small Causes i.e. Munsif, Rae Bareli and on 15.3.1973 that court fixed 18.4.1973 for final hearing. On the date fixed an application for attachment was made by the Plaintiff which was ordered to be put up on 19.5.1973 for disposal. On 17.5.1973, however, the Respondent No. 7 made an application No. 24/C under Order 15 Rule 5, CPC praying that the Petitioner's defence be struck off as he had not deposited the arrears of rent and damages etc. on the first hearing as required under the law. On 20.10.1973 the case was received again by transfer in the court of the Civil Judge, Rae Bareli for disposal and arguments were heard on the application No. 24/C. The application was allowed by the learned Judge vide his order dated 30.10.1973 on the ground that in his written statement the Petitioner had not disputed the amount of Rs. 210/- which were claimed by the Respondent No. 7 as arrears of rent and Rs. 210/- which were claimed by the Respondent No. 7 as arrears of rent and Rs. 175/- as arrears of mesne profit for the use and occupation and the Petitioner had neither deposited such amount nor had he requested for time to deposit the amount. In the circumstance the Petitioners' defence was struck off. The order was upheld by the learned District Judge by his order dated 6.2.1974 and the revision filed by the Petitioner before him was dismissed. It is these orders whose validity has been challenged in this Misc. Application under Article 227. 3. Sri H.D. Srivastava, learned Counsel for the Petitioner strenuously urged before me that the “first hearing” in the suit had not yet really taken place, that the court was in law bound to permit the Petitioner to make the deposit as contemplated by Order 15, Rule 5, CPC and in the circumstances the order striking off the defence of the Petitioner was wholly illegal. On behalf of the Respondent No. 5 it was submitted that the first hearing of the case had taken place long ago, that the Petitioner had repeatedly failed to avail of the time granted for making the deposit before the court either on the first hearing or even thereafter and on the date when the defence was struck off all the conditions precedent to the passing of an order under Order 15, Rule 5 were fully satisfied and the order did not suffer from any error of law. 4. In order to appreciate the above contention it may be pointed out that the progress of the suit spanned really two periods, the one in which it remained pending in a regular court and the other during which its cognizance was taken by the Small Causes Court. A narrative of the facts already given would indicate that till 4.1.1973 the suit remained pending in the regular court of the Munsif, Rae Bareli in the first instance and the First Additional Munsif subsequently. From 20.1.1973 to 30.10.1973, which is the outer limit for the purpose of the present case, the suit remained pending in the Small Causes Court i.e. before the Munslf, Rae Bareli in the first instance and later before the Second Additional Civil & Sessions Judge. From 20.1.1973 to 30.10.1973, which is the outer limit for the purpose of the present case, the suit remained pending in the Small Causes Court i.e. before the Munslf, Rae Bareli in the first instance and later before the Second Additional Civil & Sessions Judge. It has to be examined as to whether during these two phases of the suit the date of the 'first hearing' as contemplated by Order 15, Rule 5, CPC had been reached or not. To my mind in the first phase of the case i.e. so long as it was before the regular court the date of the first hearing of the case would mean the date for framing of issues. Learned Counsel for the parties cited a large number of authorities before me dealing with the question as to what constituted the “first hearing” of the suit. Reference was also made to the various provisions of the Code of Civil Procedure. The consensus of authorities, however, seems to be that the “first hearing” in a suit commences when the court looks into the pleadings in order to formulate the points in controversy between the parties. In cases in which the issues are framed on the day the evidence begins, the hearing no doubt will be deemed to commence on that date. But where issues have to be framed on a date fixed for that purpose, the hearing certainly commences when the court takes up the case to frame the issues. This is possible only after the Defendant has filed his written statement. See Kalloo Vs. Mt. Imaman, AIR 1949 All 445 . I am also inclined to refer to Order 8, Rule 1, CPC which says that the Defendant may, and if so required by the court shall, at or before, the first hearing or within such time as the court may permit, present a written statement of his defence. In Makku Naicker v. Agthiappa AIR 1949 Mad. 622, it was held that words “first hearing” under Order 8, Rule 1, CPC signified only the date when the issues were framed. Obviously the Defendant has a right to file a written statement either before the framing of issues, if so ordered by the court or on the date of settlement of issues, if so permitted by the court. He cannot postpone the filing of the written statement of his own accord. Obviously the Defendant has a right to file a written statement either before the framing of issues, if so ordered by the court or on the date of settlement of issues, if so permitted by the court. He cannot postpone the filing of the written statement of his own accord. He can do so only when the court accords permission. This was the view expressed by the Andhra Pradesh High Court in Chikkula Chendraiah Vs. Tata Seetarammaiah and Others, AIR 1961 AP 102 . In Binda Prasad Vs. United Bank of India Ltd. and Others, AIR 1961 Patna 152, it was observed that the expression “first hearing” used in Rule 1, Order 8, when the summons issued as required by Rules 1 and 5 of Order 5 is for settlement of issues only, means the date of settlement of issues, that is, the day when the issues are framed and recorded, as required by Rule 1(5) of Order 14 of the Code. In other words, where summons is issued for settlement of issues, the expression 'first hearing' means the date of the settlement of issues provided the issues are framed. In Smt. Jaggi v. Bhagwan Das 1969 ALJ 1144 Asthana, J. as he then was, observed that the date of filing of the written statement cannot be confused with the date of hearing of the suit. Therefore whenever issues are required to be settled in a case the date of the 'first hearing' shall be the date on which the court applies its mind to the pleadings of the parties in order to ascertain what the controversy is. In this context I would also like to say that mere fixing of a date for framing of issues does not make it a date of first hearing. If on the date fixed, the case is adjourned for one reason or the other such as when the Presiding Officer himself is absent and no issues are actually struck then it would not be the date of first hearing. It is only when the pleadings of the parties are actually gone into by the court and it has applied its mind to the case of the parties and issues are actually framed that the date of first hearing can be said to have been reached and not otherwise. It is only when the pleadings of the parties are actually gone into by the court and it has applied its mind to the case of the parties and issues are actually framed that the date of first hearing can be said to have been reached and not otherwise. Hence, the Respondent would not be justified if he relies merely on the order sheet and fastening upon a date fixed for settlement of issues and insists that the same be treated as the date of first hearing. It is not normally the fixing of a date in a suit that determines the legal character of that date but it is the business actually transacted or not transacted which would eventually determine as to whether it was the date of the first hearing or not. As 1 have already observed, if on the date of settlement of issues the court actually takes up the case and frames issues, it would undoubtedly or other (?) it refrain from framing the issues it would still not answer the description of the terms 'first hearing'. That appears to be the gist of the numerous decisions rendered by different High Courts on the meaning of the expression 'first hearing', so far as the regular courts distinguished from Small Causes Courts are concerned. 5. The other category of cases of small causes. The proposition formulated above would not apply to Small Causes Court cases. While in a regular court the date for settlement of issues is usually the dale of the first hearing, in a Small Cause Court the very first date fixed is for final hearing and is, therefore, the date of first hearing and no issues are required to be framed in the case. Rule 5 of Order 5, CPC and the proviso thereto read as follows: 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. 6. 6. Since in a suit heard by the Court of Small Causes the summons have to be issued for final disposal of the suit, no summons for framing of issues are issued and no issues are actually framed. In Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, AIR 1955 SC 425 the term “first hearing” was interpreted by the Supreme Court and it was ruled: The first hearing either for the settlement of issues or for final hearing. 7. Therefore, my conclusion is that in a regular court the first hearing is the date of the settlement of issues whereas in a Small Causes Court the first hearing is the very first date fixed for disposal of the case. 8. It is in the light of these criteria that we must proceed to examine as to whether in the two phases of the present suit i.e. before and after its transfer to the Court of Small Causes, the “first hearing” had occurred or not. In its first phase i.e. from 11.9.1969 to 4.1.1973 only the settlement had been filed and the date for settlement of issues had been fixed but no issues had been actually framed, thereafter the case was transferred to Small Cause Court. Obviously, therefore in the former situation the court did not have any occasion to apply its mind to the pleadings of the parties and ascertain the real controversy on which they joined issue and, consequently, there was no “first hearing” of the suit. In its latter phase i.e. during its pendency in the Court of Small Causes, however, the position is not so simple and bristles with legal difficulties. Many important considerations have to be borne in mind before coming to the conclusion as to the precise stage when the “first hearing” of the suit may be said to have arisen. In the Small Cause Court 18.4.1973 was fixed for final hearing and normally that would have surely been the first hearing of the suit but as contended by the learned Counsel for the Petitioner there was insurmountable legal difficulty in applying the provisions of Order 15, Rule 5, Code of Civil Procedure. Rule 5 was inserted in Order 15 of the CPC by Section 7 of the U.P. Civil Laws Amendment Act, 1972 which came into effect on 20-9-1972. Rule 5 is quoted below: 5. Rule 5 was inserted in Order 15 of the CPC by Section 7 of the U.P. Civil Laws Amendment Act, 1972 which came into effect on 20-9-1972. Rule 5 is quoted below: 5. Striking off defence on non deposit of admitted rent etc. In any suit by a lessor for the eviction of a lessee from any immovable property after the determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use of or occupation thereof, whether instituted before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1972, the Defendant shall, at or before the first hearing of the suit (or in the case of a suit instituted before the commencement of the said Act, the first hearing after such commencement) deposit the entire amount of rent or compensation for use and occupation, admitted by him to be due and thereafter throughout the continuance of the suit, deposit regularly, the amount of monthly rent or compensation for use and occupation, due at the rate admitted by him, and in the event of any default in this regard, the Court may unless considering any representation made by him in that behalf it allows him further time on security being furnished for the amount, refuse to enter any defence or, as the ease may be, strike-off his defence. Although Rule 5 was introduced by the U.P. Civil Laws Amendment Act, 1972, nevertheless the corresponding provision in Order 50 of the CPC was not suitably amended. Order 50 excludes the application of Order 15 except so much of Rule 4 as provides for the pronouncement at once of judgment to courts constituted under the Provincial Small Cause Courts Act, 1887 or to courts exercising the jurisdiction of a Court of Small Causes. Unless Order 50 was also appropriately amended, the hurdle to the applicability of any other provision of Order 15, including Rule 5 added by U.P. Act 37 of 1972, could not be overcome. It appears that this discrepancy was realised by the legislature, and therefore, it stepped in by enacting U.P. Civil Laws (Amendment) Act, 1973 (Presidents' Act No. 19 of 1973) which came into force on October 19, 1973. It appears that this discrepancy was realised by the legislature, and therefore, it stepped in by enacting U.P. Civil Laws (Amendment) Act, 1973 (Presidents' Act No. 19 of 1973) which came into force on October 19, 1973. In substance it provided that Section 7 of U.P. Act 37 of 1972 shall be deemed to have come into force on 20-9-1972. In other words, it purported to give retrospective effect to Rule 5, Order 15, Code of Civil Procedure. See Section 1(3) and 3 of the 1973 Act. The President's Act 19 of 1973 itself came into force on 19-10-1973. If the conditions imposed by Rule 5 of Order 15 were retrospectively enforced, although they could not under the existing provisions of the CPC i.e. without amending Order 50, the result would be that a litigant would be called upon to perform what was an impossible task. The first hearing of a suit may have in law long preceded October 19, 1973 when President's Act 19 of 1973 came into force, but the Defendant in a suit for ejectment and arrears could not anticipate any such future legislation and make the deposit on the assumption that the bar created by Order 50 of the Code shall disappear. The law has always recognised the underlying principle expressed in the well known maxim “impotentis excusat legem”. The maxim must be understood in this qualified sense that “impotentis excuses when there is a necessary or invincible disability to perform the mandatory part of the law, or to forbear the prohibitory”. It has been remarked at page 176 in Broom's Legal Maxim (Ninth Edn.): Impossibility may, however, be created by a changer of the law. Intimately connected with the above maxim is the other celebrated maxim “nemo tenetured impossibilia”. At page 172 in Broom's “Legal Maxims” the following pregnant observations have been made: The law itself and the administration of it, said Sir W. Scott, with reference to an alleged infraction of the revenue laws, must yield to that to which everything must bend, to necessity; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intentions of compelling to impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases. The general rule which can be summed up from these well known maxims is that where the law creates a duty or charge, and the party is disabled from performing it, without any default in him, and has no remedy over, there the law will in general excuse him. In Maxwell's “Interpretation of Statutes” Eleventh Edition at page 373 the same principle is expressed in the following words: Enactments which impose duties on conditions are, when these are not conditions precedent to the exercise of a jurisdiction, subject to the maxim that 'lex non cogit ad impossibilia aut inutilia'. They are understood as dispensing with the performance of what is prescribed when performance of it is idle or impossible. 9. In Mayer v. Harding 2 QB 410 the Appellant who had applied to justices to state a case under the Summary Jurisdiction Act, 1857 received the ease from them on Good Friday, and transmitted it to the proper court on the following Wednesday. It was held that he had complied sufficiently with the requirement of the Act, directing him to transmit the case within three days after receiving it; for the offices of the Court having been closed from Friday till Wednesday, it was impossible to transmit the ease sooner. It was observed by Mellor, J. that whore a statute requires a thing to be done within any particular time, such time may be circumscribed by the fact of its being impossible to comply with the statute on the last day of the period so fixed. In R. v. Surrey 6 QBD 100 the same principle was applied. In fact case where an appeal against an order of an assessment committed had to be made to the next Sessions, it was held that the next Sessions meant the next practicable Sessions, and necessarily the next Sessions immediately after the date of the order, as the latter construction would not have afforded the aggrieved party time to consider whether he would appeal or not. Applying these canons of interpretation it appears idle to me to suggest that even through the impediment created by Order 50 of the CPC was not removed till October 19, 1973, a Defendant should in law have been required to comply with Rule 5 of Order 15, Code or Civil Procedure prior to that date. Applying these canons of interpretation it appears idle to me to suggest that even through the impediment created by Order 50 of the CPC was not removed till October 19, 1973, a Defendant should in law have been required to comply with Rule 5 of Order 15, Code or Civil Procedure prior to that date. The basic principle of equity and justice which has been adopted by statutory construction dictates that where a statute or law requires something to be done and in default of which detrimental consequences will follow, the rigour of the rule must be relaxed and it must be so construed as to enjoin on the performance of that duty only when all legal impediments to its performance which could be legitimately claimed in defence have ceased to exist and the duly enjoined under the law becomes absolute in its operation. This is how the canons of interpretation soften the rigour of law created by technicalities or literal construction. I am, therefore, unable to accept the submission of Respondent No. 5 that it was incumbent on the Petitioner to deposit the arrears of rent and compensation for use and occupation etc. On 18-4-1973 when the case was fixed for final hearing in the Small Cause Court or on other subsequent dates prior to 20th October, 1973. The contention of the Respondent No. 5, therefore, on this part of the case must be rejected. 10. It is however, 20th October, 1973 which is the crucial date in the case for the purpose of applying Rule 5 Order 15 of the Code of Civil Procedure. This was the date on which the application made under Rule 5, Order 15 made on behalf of Respondent No. 5 on 17-5-1973 was actually heard. As already observed, it was allowed by the Order dated 30-10-1973. On the date when the application was heard I am unable to perceive any excuse available to the Petitioner for not making the required deposit of arrears of rent and damages. There could be only two obstacles to making such deposit. Either the date of the first hearing in the suit may not have arrived or the bar imposed by Order 50 of the CPC may continue to operate. On this date, however, none of these two impediments existed. Act No. 19 of 1973 was already operative since October 19, 1973. There could be only two obstacles to making such deposit. Either the date of the first hearing in the suit may not have arrived or the bar imposed by Order 50 of the CPC may continue to operate. On this date, however, none of these two impediments existed. Act No. 19 of 1973 was already operative since October 19, 1973. Further it would also be erroneous to contend that 20th October, 1973 was prior to the 'first hearing' of the suit. The preceding facts clearly indicate that since 18-4-1973 had been fixed for final hearing in the Small Causes Court and normally that would have been the date of the first hearing in the suit. But on that date the final hearing of the suit did not actually take place and on the next date the application No. 24/C was made on behalf of the Plaintiff. That application Wits heard on 20-10-1973 and the court applied its mind to the case of the parties. It would be preposterous to suggest that an application under Rule 5, Order 15, Code or Civil Procedure could be disposed of by the court without applying its mind to the pleadings of the parties. The whole object of the application was to compel the Defendant to make the necessary deposit and on failure of which his defence could be struck off. No such order could be passed without examining as to what was the amount of rent and damages claimed by the Plaintiff. This was one of the principal issues for decision in the case itself and it was only on an investigation of this cardinal question that the date of the application No. 24/C hinged. Therefore applying all the relevant tests the conclusion becomes irresistible that at least 20th October, 1973, if not earlier, was the date of first hearing in the suit and it is not possible to stretch that date to any later period. It was the imperative duty of the Defendant in compliance of Rule 5, Order 15, Code or Civil Procedure, therefore, to deposit on that date the entire amount of arrears for use and occupation admitted by him to be due till then and thereafter throughout the continuance of the suit to deposit regularly the amount of monthly rent or compensation due at the rate admitted by him. The Petitioner did nothing of the kind. The Petitioner did nothing of the kind. As found by the trial court and affirmed by the Revisional Judge the Defendant neither deposited the amount of rent with pendente lite or future damages nor requested for time to deposited. In these circumstances his defence was rightly struck off. I find support for the view that I have taken from some observations made by a Division Bench of this Court in Ladly Prasad Vs. Ram Shah Billa and Others, AIR 1976 All 261 , though the facts are distinguishable. It was held in that case: Order XV relates to disposal of the suit at the first hearing. This stage is arrived after the Defendant has filed his written statement, the parties have been examined under Order X, if considered necessary, to clarify the points in controversy, documents on which parties rely have been produced and admission and denial obtained, and necessary issues framed as provided under Order XIV. After the framing of the issues the case is ready for hearing. This is the stage when Rule 5 of Order XV comes into play. This is anterior to the stage when the parties examine their witness. In the present case on the crucial date the suit was being tried by Small Causes Court and therefore no question of settlement of issues arose. 11. The last submission made by the Petitioner was that even if 20th October, 1973 be taken to be the first hearing of the suit, it was obligatory on the court to afford an opportunity to the Defendant Petitioner for making a representation and allow him further time for making the deposit in accordance with Rule 5, Order 15, Code or Civil Procedure. This contention is untenable and cannot be accepted without doing violence to the language of the provision. The whole object of adding Rule 5 to Order 15 was to deter the tenants from contesting suits for ejectment without having to pay any rent or damages to the landlord and letting such arrears to accumulate to the prejudice of the Plaintiff. Of course, there could be no intention of the Legislature to lend the tenant in a helpless predicament. It gave him the option of saving himself from eviction by the performance of the statutory duty of making deposit of the entire arrears. Of course, there could be no intention of the Legislature to lend the tenant in a helpless predicament. It gave him the option of saving himself from eviction by the performance of the statutory duty of making deposit of the entire arrears. In interpreting Rule 5, Order 15, Code or Civil Procedure, it is necessary to bear in mind that it only gives protection to tenants who are ready and willing to pay rent and damages etc. to the full extent enjoined by it. If there is no willingness to comply with the terms of that provision, surely the Defendant is not entitled to any protection. I am also unable to accept the submission that after a default has been committed the court is called upon to give further opportunity to the lessee to make the deposit. It is trite that a provision of law must be construed as a whole and the rule of harmonious construction demands that a part of the provision should be given such interpretation as would not render another part of the same provision nugatory. Every limb of the provision must be given its full application otherwise the intention of the Legislature would be defeated. The first limb of Rule 5, Order 15 leaves no option to the lessee, who wants to avoid the striking off of his defence, except to make the entire deposit on the crucial date fixed by the Legislature for the performance of this duty, then alone he can obtain immunity from the penalty consequent upon his failure to make the deposit on the date of first hearing of the suit. Once the Rubicon has been crossed, there is no retreat and the tenant forfeits the right of asking for extension of time. The request for extension of time must be contemporaneous with the first hearing of the suit. On that date there are only two alternatives before a lessee in order to save himself from the penalty of the striking off the defence. Either he has to make full deposit or he has to make a representation to the court to allow him further time for making the deposit. Even this concession of extension of time is hedged in by a condition, namely, that he must furnish security to the court. Either he has to make full deposit or he has to make a representation to the court to allow him further time for making the deposit. Even this concession of extension of time is hedged in by a condition, namely, that he must furnish security to the court. From the whole tenor of this new provision added by Section 7 of U.P. Act 37 of 1972 it becomes clear that a duty is cast on the lessee in a suit to clear off all the pecuniary liability and then alone he can claim protection available to him by the concluding part of Rule 5. In the event of non-deposit on the first date of hearing the protection must elude the lessee and he may commit the default at his own risk. If it were left to the choice of the lessee to apply for extension of time at any later stage whenever it pleased him, surely the first and essential part of Rule 5, which enjoins the deposit of the entire arrears of rent and damages etc., would become wholly ineffective and the object of the provision shall not be achieved. On the facts and circumstances of the instant case I have no manner of doubt that the Petitioner had fully incurred the penalty contemplated by Rule 5, Order 15, Code or Civil Procedure and the impugned orders are not vitiated by any apparent error of law. 12. I, therefore, find no merit in this writ petition and it is accordingly dismissed with costs. The stay order dated 1-3-1974 is vacated.