JUDGMENT N. D. Ojha, J. - The petitioner was the tenant of a shop in the city of Meerut. A suit was instituted by Waqf Haji Sifat Ahmad, respondent No. 3 through its mutwalli Dr. Wahidul Hasan Qadri for ejectment of the petitioner on the ground that the petitioner who was a tenant of the said shop on a monthly rent of Rs. 18/- had not paid its rent since 1st February, 1969, notwithstanding a combined notice of demand and termination of tenancy dated 25th January, 1974, having been served on him on 29th January, 1974, and consequently he was liable to be evicted being a defaulter in payment of rent within the meaning of Section 20(2)(a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (hereinafter referred to as the Act), his tenancy having already been determined by the notice aforesaid. The suit was instituted on 1st May, 1974, and 27th September, 1974, was the date fixed for filing written statement. On that date the petitioner filed a written statement. On 25th November, 1974, the petitioner deposited a sum of Rs. 1,000/- purporting to be under Section 20(4) of the Act. One of the pleas raised by the petitioner in his written statement that there was no relationship of landlord and tenant between the parties found favour with the Judge, Small Causes, before whom the suit had been instituted and the suit was accordingly dismissed on this ground on 28th November, 1974. A revision was filed by respondent No. 3 before the District Judge which was allowed on 4th March, 1977. It was held that the plaintiff Waqf was the owner of the shop in dispute and that Dr. Wahidul Hasan Qadri was entitled to file the suit on behalf of the waqf. A revision, being Civil Revision No. 577 of 1977, was filed in this Court by the petitioner against the aforesaid order dated 4th March, 1977, which was admitted and an interim order was passed on 28th March, 1978, staying the ejectment of the petitioner subject to the condition that he deposited the decretal amount and uptodate damages for use and occupation in the trial court and went on depositing further damages regularly. It appears that in pursuance of the aforesaid interim order the petitioner deposited a sum of Rs. It appears that in pursuance of the aforesaid interim order the petitioner deposited a sum of Rs. 2039.50 on 15th May, 1978, and made subsequent deposits also towards damages on various dates. The revision filed by the petitioner was ultimately allowed by this Court on 1st February, 1980 by an order a copy whereof has been filed as Annexure I to the counter affidavit. A perusal of the order dated 1st February, 1950, makes it clear that as regard the finding that relationship of landlord and tenant existed between the petitioner and respondent No. 3 it as held that the said finding could not he interfered with in a revision under Section 115 Civil Procedure Code. The suit was, however directed to he decided a fresh by the Judge, Small Causes, after recording findings on other issue involved therein. 2. It appears that the record of the suit was received in tie court of the Judge, Small Causes, thereafter on 3rd July, 1980. On that date 7th August, 1980, was fixed for hearing of the suit and counsel for the parties were directed to be informed about it. On 7th August, 1980, the case could not be taken up and was adjourned for the next date. On 8th August, t 980 no one appeared for the petitioner. The suit was heard ex parte and judgment was reserved. The judgment was pronounced by the Judge, Small Causes on 25th August, 1980, whereby the suit was decreed ex parte. An application was made by the petitioner on 4th September, 1980, for setting aside the ex parte decree aforesaid but the said application was dismissed on 21st August, 1981, the petitioner filed a revision against that order before the District Judge. It was dismissed on 4th September, 1981 by the III Additional District Judge, Meerut, by order a copy where of has been filed as Annexure III to the writ petition. Aggrieved the petitioner has instituted this writ petition. The prayer contained in the writ petition is that the order dated 21st August, 1981 passed by respondent No. I (Annexure III to the writ petition) may be quashed. The order dated 21st August, 1981 was passed not by the District Judge, respondent No. 1, but by the Judge, Small Causes. Aggrieved the petitioner has instituted this writ petition. The prayer contained in the writ petition is that the order dated 21st August, 1981 passed by respondent No. I (Annexure III to the writ petition) may be quashed. The order dated 21st August, 1981 was passed not by the District Judge, respondent No. 1, but by the Judge, Small Causes. Further Annexure III to the writ petition is not the copy of the order dated 21st August, 1981, aforesaid but of the revisional order dated 4th September, 1981, passed by III Additional District Judge, Meerut, who has neither been impleaded as a respondent in the writ petition nor has his order been sought to be quashed. The order dated 21st August, 1981, passed by the Judge, Small Causes, having merged in the revisional order dated 4th September, 1981, passed by the III Additional District Judge, Meerut, and no prayer having been made to quash this order nor the Ill Additional District Judge having been impleaded as a respondent the writ petition is liable to be dismissed on this ground alone. Even on merits, I am of opinion that no case has been made out for interference in a writ petition with the impugned order dated 21st August, 1981. 3. It has been urged by counsel for the petitioner that after the record of the suit was received by him on 3rd July, 1980, the Judge, Small Causes, should have issued a notice to the petitioner about the date fixed for hearing and the notice sent to and served on his counsel who appeared in the suit before it had been remanded by this Court for fresh decision was not at all sufficient. In the alternative it has also been urged that since the counsel on whom notice had been served on behalf of the petitioner had not informed the petitioner of the date fixed, the ex-parte decree passed on 25th August, 1980, should have been set aside by the Judge, Small Causes, and the application made in this behalf by the petitioner was erroneously rejected by the impugned order dated 21st August, 1981. 4. 4. For the respondent No. 3 on the other hand it has been urged by its counsel that in view of the provisions contained in Rules 4 and 5 or Order 3 of the Code of Civil Procedure service of the notice on the petitioner's counsel was sufficient inasmuch as his Vakalatnama had never been terminated and after the remand the suit became again pending before the same court where the said counsel had filed his Vakalatnama. It was also urged and rather with a vehemence by counsel for respondent No. 3 that after the finding recorded by the District Judge that relationship of landlord and tenant existed between the parties and the said finding having been affirmed by this Court in Civil Revision No. 577 of 1977 no plausible defence whatsoever had been left for the petitioner in the suit and the whole anxiety of the petitioner was to have the boon of delay as far as possible on one superficial ground or the other. In view of this specific assertion made by counsel for respondent No. 3 and in view of the fact that the suit as seen above had been instituted about nine years back on 1st of May, 1974, 1 have considered it expedient to go into the questions to whether ally useful purpose would be served by quashing the impugned order dated 21st August, 1981, whereby the petitioner's application for setting aside the ex-parte decree was dismissed and requiring the Judge, Small Causes, to consider the said application a fresh. After having heard counsel for the parties at some length I have come to the conclusion that the submission made by counsel for respondent No. 3 that after the finding that relationship of landlord and tenant did exist between the parties the petitioner has really no plausible defence and he seems to be anxious to delay the proceedings as far as possible and to continue to occupy the accommodation in question on the basis of the interim orders of stay passed in the proceedings initiated by him seems to have substance. The reasons for taking this view are these. 5. Receipt of the combined notice of demand and terminating his tenancy is admitted by the petitioner. The reasons for taking this view are these. 5. Receipt of the combined notice of demand and terminating his tenancy is admitted by the petitioner. Indeed he had also sent a reply to that notice and had himself filed copies of the notice and his reply as annexures 1 and 2 respectively to his rejoinder affidavit. A perusal of annexure 1 aforesaid indicates that the case of respondent No. 3 was that the petitioner was a tenant on a monthly rent of Rs. 25/- and was in arrears of rent. It further indicates that the tenancy of the petitioner was terminated in accordance with the requirements of Section 106 of the Transfer of Property Act and there was no invalidity in the notice as far as termination of tenancy is concerned. Indeed the validity of the notice in so far as it terminated the tenancy of the petitioner does not appear even to have been challenged by him. As regards rent the case of the petitioner was that the monthly rent was not Rs. 25/- but Rs. 18/- and that he had already paid rent up to February, 1969 to Haji Sifat Ahmad who had created the wakf. As regards the rate of rent respondent No. 3 appears to have subsequently accepted that the rate of rent was Rs. 18/- per month. In this view of the matter apart from the question as to whether there was relationship of landlord and tenant between the parties or not the only other question which remained to be decided in the suit was as to whether the petitioner was a defaulter in the payment of rent or not as con- templated by section 20(2)(a) of the Act. In this connection it would be seen that the petitioner in his reply to the notice of demand (Annexure 2 to his rejoinder affidavit) had asserted that respondent No. 3 had no authority to collect rent of the shop in question. It is not even his case that on the receipt of the notice of demand he had ever tendered to the respondent No. 3 the arrears of rent from 1st March, 1969 (rent upto February, 1969 asserted to have been paid to Haji Sifat Ahmad) even at the admitted rate of Rs. 18/- per month. It is not even his case that on the receipt of the notice of demand he had ever tendered to the respondent No. 3 the arrears of rent from 1st March, 1969 (rent upto February, 1969 asserted to have been paid to Haji Sifat Ahmad) even at the admitted rate of Rs. 18/- per month. In this view of the matter and in view of the finding of fact upheld by this court in Civil Revision No. 577 of 1977 that relationship of landlord and tenant existed between the parties it is apparent that the petitioner was a defaulter in payment of rent as contemplated by Section 20(2)(a) of the Act and was liable to be evicted from the shop in question. 6. As regards the assertion made by the petitioner in his reply to the notice of demand that lie had been depositing rent in the court, the Judge, Small Causes, in his judgment dated 25th August, 1980, delivered in pursuance of the order of remand dated 1st February, 1980, passed by this Court in Civil Revision No. 577 of 1977, has held, as is apparent from the copy of the said judgment filed as Annexure 2 to the counter affidavit as follows : "The defendant stated in his reply that he had been depositing rent in the court but no proof of depositing rent is filed on the record. The defendant in his statement also not stated any such thing that he had deposited rent in any court. The plaintiff Sri Wahidul Hasan, on the contrary stated that the defendant was in arrears of rent since 1-2-69 on the date of notice dated 25-1-74. From this it is proved on record that the defendant was in arrears of rent for more than four months on 25-1-74 when notice was given to him. The defendant did not pay nor tendered any rent within 30 days from the receipt of the plaintiff's notice and hence had committed default in payment of rent within the meaning of section 20(2)(a) of U. P. Act No. 13 of 1972. Hence I hold that the defendant has committed default payment of rent and is liable to ejectment from the disputed shop." 7. Hence I hold that the defendant has committed default payment of rent and is liable to ejectment from the disputed shop." 7. It is not the case of the petitioner that the observation aforesaid made by the Judge, Small Causes, that the petitioner had furnished no proof oral or documentary about the alleged deposit of rent in court is wrong. The decree passed by the Judge, Small Causes, on 25th August, 1980, is for ejectment of the petitioner from the shop in question and for recovery of arrears of rent from 1st May, 1971 to 18th February, 1974, at the rate of Rs. 18/- per month and for damages at the same rate from 1st March, 1974 till the date of delivery of possession. 8. As regards the decree for ejectment, as already seen above, no exception can be taken by the petitioner, he having been established to be a defaulter in payment of rent as contemplated by Section 20(2)(a) of the Act. As regards the decree for rent and damages the same has been passed at the admitted rate of Rs. 18/- per month. Even according to the petitioner rent was paid by him to Haji Sifat Ahmad only upto the month of February, 1969. Since rent for more than three years from the date of the institution of the suit was barred by time a decree for arrears of rent has been passed only from 1st May, 1971. No exception can, therefore, be taken by the petitioner even to the decree for arrears of rent and damages. This indicates that there is substance in the submission made by counsel for respondent No. 3 that the petitioner has absolutely no defence after the finding that there was relationship of landlord and tenant and his whole effort now seems to he to postpone the evil day of his ejectment as far as possible. This indicates that there is substance in the submission made by counsel for respondent No. 3 that the petitioner has absolutely no defence after the finding that there was relationship of landlord and tenant and his whole effort now seems to he to postpone the evil day of his ejectment as far as possible. Since the effect of quashing the impugned order would be to provide the petitioner a further boon of delay when no triable issue remains to be decided after the finding that there is a relationship of landlord and tenant between the parties, even on the admitted case of the petitioner, I am of opinion that it would not be a proper exercise of discretion under Article 226 of the Constitution to quash the impugned order dismissing the application for setting aside the decree dated 25th August, 1980, on the plea (on which on the facts of this case I do not consider it necessary to express any opinion) that service of notice of the date fixed for hearing in the suit after its remand by this court on his counsel did not constitute sufficient service on the petitioner or that the petitioner was not informed about the date of hearing by his counsel. It is settled law that proceedings by way of certiorari under Article 226 of the Constitution are "not of course" and the High Court would be justified in refusing the writ if it is clear that there has been no failure of justice. See A. M. Allison v. B. L. Sen, AIR 1957 S.C 227 . 9. It is settled law that proceedings by way of certiorari under Article 226 of the Constitution are "not of course" and the High Court would be justified in refusing the writ if it is clear that there has been no failure of justice. See A. M. Allison v. B. L. Sen, AIR 1957 S.C 227 . 9. The only other question which has been canvassed by counsel for the petitioner and remains to he decided is as to whether the petitioner was entitled to the benefit of Section 20(4) of the Act which reads : "(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 deposits 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 landlords' costs of the suit in respect thereof, after deducting there from any amount already deposited by the tenant under sub-section (I) 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. 10. The explanation quoted above in Section 20(4) of the Act was inserted by U.P. Act 28 of 1976 and since in the instant case the suit was instituted in 1974 the question as to what was the date covered by the expression "first hearing of the suit" will have to be decided ignoring the explanation. 10. The explanation quoted above in Section 20(4) of the Act was inserted by U.P. Act 28 of 1976 and since in the instant case the suit was instituted in 1974 the question as to what was the date covered by the expression "first hearing of the suit" will have to be decided ignoring the explanation. Section 20(4) of the Act as it stood before the insertion of the explanation aforesaid came up for consideration before the Supreme Court in Ved Prakash v. Vishwa Mohan, AIR 1982 SC 816 and it was held that "the first hearing of the suit" is when after the framing of issues, the suit is posted for trial, that is, production of evidence. In the instant case as already seen above 28th November, 1974, was not only the date fixed for hearing including production of evidence, the suit was actually decided on that date. As such there can be no doubt that "the first hearing of the Suit" in the instant case could not be beyond 28th November, 1974. What was, therefore, to be seen is that taking even 28th November, 1974. as "the first hearing of the suit" can it he said that the amount contemplated by Section 20(4) of the Act had been deposited on or before that date by the petitioner sous to entitle him to the benefit of the said section. The answer to this question has to be in the negative even on the admitted facts of this case. It is settled law that for claiming the benefit of Section 20(4) even time barred rent has to be deposited. On his own case the petitioner had paid rent upto February, 1969, only to Haji Sifat Ahmad. Rent from 1st March, 19 9, upto at least 31st October, 1974 (ignoring the rent or damages for the 28 days of November, 1974) had therefore to be deposited by the petitioner on or before 28th November, 1974, together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof. At the admitted rate of Rs. 18/- per month even the rent from 1st March 1969, to 31st October, 1974, comes to Rs. 1,224/-. If to this figure is added the interest at nine per cent and costs of the suit it would be much more. At the admitted rate of Rs. 18/- per month even the rent from 1st March 1969, to 31st October, 1974, comes to Rs. 1,224/-. If to this figure is added the interest at nine per cent and costs of the suit it would be much more. The only deposit made on or before 28th November, 1974, on the basis of which the benefit of Section 20(4) of the Act was claimed by the petitioner was the deposit of the sum of Rs. 1,000/- made by him on 25th November, 1974, as already pointed out. This amount was on the fact of it very much deficient from the amount contemplated by Section 20(4) of the Act and obviously the petitioner was not entitled to claim the benefit of the said section on the basis of the said deposit. Further as has been stated in paragraph 5 of the supplementary counter affidavit of Dr. Wahidul Hasan Qadri filed on 10th September, 1982 in the present writ petition even the said sum of Rs. 1,000/- deposited by the petitioner on 25th November, 1974, was withdrawn by the petitioner on 5th December, 1975. 11. Faced with this insurmountable difficulty counsel for the petitioner urged that not the 28th November, 1974, which was the date fixed for the hearing in the suit as aforesaid, but the 7th August, 1930, which was the date again fixed for hearing in pursuance of the order of remand passed by this Court on 1st February, 1980, in Civil Revision No 577 of 1977 should be construed as "the first hearing of the suit". It was urged that if it was so done the petitioner may, on account of the deposits made by him in pursuance of the interim order of stay passed by this Court on 28th March, 1978, in Civil Revision No. 577 of 1977, become entitled to the benefit of Section 20(4) of the Act, I find it difficult to accept the argument that not 24th November, 1974, but 7th August, 1980, should be construed as "the first hearing of the suit" for obvious reasons. This argument ignores the word "first" occurring before the words "hearing of the suit." Even though 7th August, 1980, may be a date of hearing of the suit it can certainly by no stretch of imagination he construed as the first hearing of the suit. This argument ignores the word "first" occurring before the words "hearing of the suit." Even though 7th August, 1980, may be a date of hearing of the suit it can certainly by no stretch of imagination he construed as the first hearing of the suit. Further, as held by the Supreme Court in the case of Ved Prakash (supra) " the first hearing of the suit" is when, after the framing of issues, the suit is posted for trial, that is production of evidence. This criterion is fulfilled only by 28th November, 1974, and not by 7th August, 1980. 12. In the result I find no merit in this writ petition. It is accordingly dismissed with costs and the interim order of stay is vacated. The petitioner is, however, granted one month's time from today to vacate the shop in question,