Ram Shree Devi v. Liaqat Hussain — 1981 DIGILAW 748 (ALL)

JUDGMENT A.N. Varma, J. - This is a defendant's application in revision under Section 25 of the Provincial Small Cause Courts Act. The revision is directed against an order passed by the Courts below striking out the defence of the applicant in the purported exercise of power under Order 15, Rule 5, of the Code of Civil Procedure. 2. These are the relevant facts. The applicant was defendant No. 1 in a suit filed by the plaintiff-opposite party No. 1 against the applicant and the remaining three defendant opposite parties for ejectment from the accommodation of which the plaintiff-opposite party is the landlord and the applicant and other opposite parties are the tenants. Under the relevant local law, the suit was to be tried as a Small Cause governed by the provisions of Small Cause Courts Act. The suit was filed on 15.11.1979. It was transferred to the Court of the learned Ist Additional District Judge who was invested with the power of Small Causes Court on 23.11.1979. It was registered on 24.7.1979. Notices were directed to be issued to the defendant and 16.1.1980 was shown in the summons as the date fixed for the final hearing of the suit. From perusal of the order sheet of the suit it appears that on 16.1.1980 the Court passed on order treating the summons issued to the applicant and the defendant Nos. 2 and 4 as not having been served sufficiently and directing them to fresh summons to be issued fixing 6.2.1980 as the date fixed for filing of the written statement. On 6.2.1980 again the Court found that the summons had not been duly served on the defendants (except defendant No. 3) till that date and directed that the case be put up for order on 16.2.1980. On 16.2.1980 the Presiding Officer was absent being on leave. The suit was consequently adjourned to 23.2.1980. On 23.2.1980, the Court treated the summons issued to the applicant as sufficient and directed the suit to proceed ex-parte against her on 6.3.1980. On 6.3.1980 an application was moved on behalf of the applicant for setting aside of the order to proceed exparte against her. The Court allowed that application and directed the applicant to file her written statement by 26.3.1980. On 6.3.1980 an application was moved on behalf of the applicant for setting aside of the order to proceed exparte against her. The Court allowed that application and directed the applicant to file her written statement by 26.3.1980. Thereafter, the suit was adjourned on a few dates but without the Court's applying its mind to the pleading of the parties or otherwise to the facts of the ease on any of those dates. On 22.5.1980 again we find that the Court directed the suit to proceed exparte and fixed 8.7.1980 for exparte hearing. However, on 8.7.1980 upon an application moved on behalf of the applicant, the aforesaid order dated 22.5.1980 was recalled upon payment of Rs. 30/- as costs and the Court directed the applicant to file her written statement by 9.7.1980 and fixed 16.7.1980 for framing of issues. 3. On 16.7.1980 the defendant-applicant deposited in the Court a sum of Rs. 3,720 which admittedly covered the entire arrears or rent due up to 18.6.1980 and inter on the said arrears at 9 percent. The plaintiff opposite party, thereupon, filed an application under Order 15 Rule 5 C.P.C. with a prayer that the defence of the applicant be struck off as she had failed to deposit the admitted arrears of rent and the interest due there on or before the first hearing of the suit which, according to the plaintiff-opposite party, was 6.2.1980 being the date mentioned in the summons. This application was contested by the applicant. By the impugned order, the Court below has allowed the application of the plaintiff-opposite party and directed that the defence of the applicant be struck out under Order 15 Rule C.P.C. 4. The Court below has taken the view that the date of first hearing of the suit would, in the present case, be 6.2.1980 which was the date mentioned in the summons issued to the defendant-applicant for filling of the written statement. The Court below has also observed that there was no ground for condonation of delay in making the deposit of the arrears of rent on or before the first date of hearing, It has then said that the Court had no discretion in the matter under Order 15 Rule 5 but to strike off the defence. 5. The Court below has also observed that there was no ground for condonation of delay in making the deposit of the arrears of rent on or before the first date of hearing, It has then said that the Court had no discretion in the matter under Order 15 Rule 5 but to strike off the defence. 5. Learned counsel for the applicant contended that the Court below committed an error in treating 6.2.1980 as the date of first hearing of the suit. It was submitted that when the Court itself adjourned the case on 6.2.1980 and changed the dates for hearing from time to time, the date mentioned in the summons ceased to be the date of hearing of the suit. In support counsel placed reliance on a large number of decisions, some of which are 1978 Allahabad Weekly Cases 523; 1978 Allahabad Weekly Cases 619 and 1981 Allahabad Rent Cases 130. Counsel argued that on 8.7.1980 the Court had fixed 9.7.1980 for filling of written statement and 16.7.1980 for framing of the issues. The next date fixed for the hearing of the suit was 16.7.1980. In this background, 16.7.1980 alone could properly be treated as the date of the first hearing in the suit. 6. Learned counsel for the plaintiff-opposite party on the other hand urged that 6.2.1980 was the date of first hearing being the date mentioned in the summons in view of the first explanation to Order 15, Rule 5 of the Civil Procedure. Learned counsel contended that in any case when on 8.7.1980 the Court fixed 9.7.1980 as the date by which the applicant was required to file her written statement, the first date of hearing would, in any case, be 9.7.1980 and not 16.7.1980. 7. Having heard learned counsel for the parties, I am of the opinion that the contentions raised by the applicant, are well founded. In the case Mathura Prasad v. Vikarmjit Singh, 1978 AWC 523 , Hari Swarup, J. held that when on the date fixed in the summons the Court adjourns the hearing of the suit to some other date, then the date mentioned in the summons ceases to be the date of hearing in the suit within the meaning of Order 15, Rule 5 read with its first explanation. He observed thus :- "When the Court passes the order changing the date mentioned in the summons for the hearing of the case, it means that the date of hearing given in the summons had been altered and another date of hearing had been substituted. Any particular date cannot be deemed to be a date of hearing when it is changed and another date is fixed as the date of hearing. It is latter date which becomes the date of hearing and the earlier date mentioned in the summons ceases to be a date and must be deemed to have been substituted by the later date. In such a case, it would be the altered or adjourned date that will become the date of first hearing within the meaning of Explanation 1. The adjourned date, i.e., the date which the Court finally fixes for the first hearing of the case, must therefore, be deemed to be the date of first hearing for purpose of Rule 5, Order 15 of the Code." The same view was taken by K.N. Singh, J, in the case of Krishana Lal v. Narendra Kumar Jain, 1978(2) Rent Control Reporter 480. Both these learned Judges analysed the provision of Order 15, Rule 5 C.P.C. read with first explanation in great depth and thereafter reached the conclusion mentioned above. Subsequently in the case of Shambu Nath Mehrotra v. Nawal Kishore Agrawal, 1981 All R.C. 130, I also look the same view following the aforesaid two decisions. 8. In view of the aforesaid decision, it is clear that the Court below was in error in treating 6.2.1980 as the date of first hearing in the suit. The suit had been adjourned on 6.2.1980 on the Courts own finding that the summons had not been sufficiently served on the applicants till that date and for the same reason the Court had postponed the hearing of the suit to 16.2.1980. On 16.2.1980 the Presiding Officer himself was absent and consequently, the suit was postponed till 23.2.1980. Thereafter the Court itself changed the dates of hearing on one ground or another. 9. Under these circumstances 6.2.1980 could not possibly by regards as the date of the first hearing. The Court below, therefore, acted with manifest illegality in striking out the defence on the assumption that 6.2.1980 was the date of the first hearing in the suit. 10. Thereafter the Court itself changed the dates of hearing on one ground or another. 9. Under these circumstances 6.2.1980 could not possibly by regards as the date of the first hearing. The Court below, therefore, acted with manifest illegality in striking out the defence on the assumption that 6.2.1980 was the date of the first hearing in the suit. 10. It was because of the aforesaid decisions of this Court that counsel for the landlord took the stand that 9.7.1980 the date ultimately fixed for filing written statement, was the date of the first hearing. 11. Having given the matter a careful thought I am clearly of the view that even 9.7.1980 could not be regarded as the date of the first hearing in the suit. For one thing the Court itself had, while directing the defendant-applicant to file her written statement by 9.7.1980, not fixed the suit for 9.7.1980. I agree with the learned counsel for the applicant that a date cannot be regarded as date fixed for the hearing of this suit when the suit is not fixed for that date. A date on which the Presiding Officer himself does not intend to sit for the disposal of the suit, in my humble view, cannot be regarded as a date fixed for hearing of the suit. An explanation to a statutory provision is mentioned merely to make explicit which may be implicit in the provision to which the explanation is added. An explanation ought not to be read totally divorced form the main provision which it seeks to explain. 12. I am fortified in the view which I am taking by the following observations of Hari Swarup, J in Mathura Prasad's case : "The Explanation has to be read along with the main rule. The intention of the Explanation is to see that the admitted rent is paid before the case proceeds. Rule 5 contemplates that date of first hearing, i.e. the date on which the Court wants to hear the case for first time. "..................... The defendant cannot make the deposit of the amount in Court if the Court is not there." I am, therefore, clearly of the opinion that 9.7.1980 could not be regarded as the date fixed for the hearing of the suit. 13. "..................... The defendant cannot make the deposit of the amount in Court if the Court is not there." I am, therefore, clearly of the opinion that 9.7.1980 could not be regarded as the date fixed for the hearing of the suit. 13. Secondly, I find that on 8.7.1980 the Court fixed two dates, one for filling the written statement namely 9.7.1980 and the other for framing of issues namely 16.7.1980. According to the first explanation to Order 15, Rule 5 where the summons mentions more than one date, one for filing of the written statement and the other for other purpose, it is the last of such dates which is to be deemed as the date of the first hearing in the suit. The intention of the Legislature, therefore seems to be that where the Court fixes more than one date, one for written statement and the other for other steps in the suit, for the application of Order 15, Rule 5, the last of such dates should be treated as the date of the first hearing in the suit. Applying that principle to the present case 16.7.1980 ought to be treated as the date of the first hearing in the suit. 14. Thus, in either view of the matter 16.7.1980 was the date of the first hearing in the suit and on that date admittedly the applicant had deposited the entire arrears of rent admitted to be due from his together with the interest calculated at the rate of 9 percent on that amount. The Court below was, therefore, not justified in directing the striking out of the defence. 15. Learned counsel for the applicant then submitted that in any case, the defendant was also in default as regards the rent for the period 9.7.1980 to 18.8.1980. His defence was, therefore, liable to be struck out on that ground. Learned counsel invited my attention to the application filed by the applicant before the Court below on 17.9.1980 in which a prayer was made that the delay of 8 days in depositing the rent for the period 19.7.1980 to 18.8.1980 be condoned and submitted that the ground stated therein was wholly insufficient for condoning the delay. Learned counsel argued that for the consideration of the default for this period namely 19.7.1980 to 18.8.1980 the case should be remanded to the Court below. I find no substance in this argument. Learned counsel argued that for the consideration of the default for this period namely 19.7.1980 to 18.8.1980 the case should be remanded to the Court below. I find no substance in this argument. The Court below has directed the striking out of the defence of the applicant only on the ground that the admitted arrears were not deposited by the applicant on or before the first date of hearing. The Court below has not taken into consideration the delay in depositing one month's rent for the aforesaid period. Under the circumstances this Court does not consider it proper to set aside the order of the Court below or to remand the case for the consideration of the default said to have been committed by the applicant in regard to one months rent for the period 19.7.1980 to 18.8.1980. According to the latest pronouncement of the Supreme Court in the case of Bimal Chand Jain v. Gopal Agarwal, 1981 Alld. Rent Cases 463, delivered on July 27, 1981 the Court is not bound to strike off the defendant of a tenant under Order 15, Rule 5 C.P.C. Their lordships of the Supreme Court have held that there is always a reverse of discretion with the Court under that provision. On the facts and circumstances of the present case, I am satisfied that no ground exists for striking out the defence even in regard to the eight day's delay in depositing the rent from the period 19.7.80 to 18.8.1980. 16. The second error committed by the Court below is that it felt bound to the strike out the defence. In the opinion of the Court below the language of Order 15, Rule 5 was peremptory which left no discretion with the Court. This is plainly opposed to the law declared by the Supreme Court in Bimal Chand Jain's case (supra). 17. Learned counsel for the plaintiff-opposite partly referred me to a decision of this Court in the case of Ajit Singh v. District Judge & others, 1980(2) UPRCC 432. He contended that according to this decision 9.7.1980 must be treated as the date of the first hearing given if no business was to be transacted on that date. I cannot agree. The question whether a date on which the Court does not propose to sit could be regarded as the date of hearing in suit was neither raised nor decided. I cannot agree. The question whether a date on which the Court does not propose to sit could be regarded as the date of hearing in suit was neither raised nor decided. The said decision is, therefore, of little assistance in resolving the controversy. 18. In the result, the revision succeeds and is allowed. The impugned order passed by the learned 1st Additional District Judge, Allahabad is set aside and the application of the plaintiff-opposite-party under Order 5, Rule 5 C.P.C. is rejected. There will be no orders as to costs.