Vidhyadhar Trivedi v. District Judge, Allahabad — 1987 DIGILAW 21 (ALL)

JUDGMENT A. N. Dikshita, J. 1. By means of this petition under Article 226 of the Constitution of India the petitioner has prayed for issue of writ of certiorari for quashing the order dated 7-2-80 (Annexure No. 'B') and order dated 28-2-1979 (Annexure No. 'A') passed by respondent nos. 1 and 2 respectively and for decreeing the petitioner's suit for recovery of arrears of rent etc. but for the decree of ejectment of respondent no. 3. 2. Briefly stated the facts are that the petitioner filed a suit for the eviction of respondent no. 3 and for recovery of arrears of rent in the Court of Judge Small Causes, Allahabad which was numbered as S.C.C. Suit No. 119 of 1976. The trial Court issued summons on 12-7-1976 fixing 22-9-76 in the case. Such summons were served on respondent no. 3 on 21-8-76. On 22-9-76 an application was filed by respondent no. 3 seeking one months' time to file written-statement which was allowed on payment of Rs. 10/- as costs and 20-11-1976 was then fixed for disposal of the case. On 20-11-76 the respondent no. 3 deposited the entire amount contemplated by section 20 (4) and prayed for relieving him of his liability for eviction. Such a request as made by respondent no. 3 was opposed by the petitioner but was allowed by the trial court and the objections of the petitioner were rejected. The suit was decreed for the amount claimed but the relief of ejectment was not granted to the petitioner vide judgment and order dated 28-2-1979. Feeling aggrieved a revision against the judgment and decree decreeing the suit partly passed by Sri V. N. Singh, Additional Civil Judge/J. S. C. C., Allahabad dated 28-2-76 was preferred. The contention of the petitioner that there had been no compliance of the provisions as contained in sub-Clause (4) of Section 20 of U. P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (Act No. XIII of 1972) was again not accepted and the revision on being found having no force was consequently dismissed. 3. The instant petition has been preferred against the said order dated 7-2-80 under Article 226 of the Constitution of India praying for issue of a writ of certiorari quashing the same. 4. Learned counsel for the parties have been heard. 3. The instant petition has been preferred against the said order dated 7-2-80 under Article 226 of the Constitution of India praying for issue of a writ of certiorari quashing the same. 4. Learned counsel for the parties have been heard. Learned counsel for the petitioner Sri C. P. Mishra has strenuously urged that both the courts below erred in law in relieving the respondent of the liability for ejectment within the postulates of sub-clause (4) of section 20 of the said Act. It has been submitted that on the first date of hearing i.e. 22-9-1976 respondent no. 3 did not deposit the rent as contemplated under sub-clause (4) of section 20 of the Act so as to be relieved of his liability of eviction and instead only preferred an application for time to file a written statement. The case on-such application was adjourned to 20-11-1976. Admittedly the written statement was brought on record on 20-11-1976 and on this date respondent no. 3 had deposited the entire amount as provided under sub-clause (4) of Section 20 of the Act. The submission is thus made on behalf of the petitioner that respondent no. 3 was not liable to be relieved of his liability for ejectment in view of the deposit being made on 20-11-1976 instead of 22-9-1976. The courts below have found that 20-11-1976 was the first date of hearing on which date the entire amount as provided under section 20 (4) of the Act was found to have been deposited. It is apparent that on 22-9-1976 nothing was done except allowing time to the defendant to file the written statement within a month thus fixing 20-11-1976. Learned counsel for the petitioner has placed strong reliance upon the Full Bench decision of this Court in Sia Ram v. District Judge, 1984 AWC 169 . In that case after scanning various decisions it was held by the Full Bench that the first date of hearing in a case would be the date as mentioned in the summons. It is thus clear that the first date of hearing would be the date mentioned in the summons. 5. Learned counsel for the respondent Sri Ramanand has urged that in the instant case the first date of hearing is 20-11-1976. It is thus clear that the first date of hearing would be the date mentioned in the summons. 5. Learned counsel for the respondent Sri Ramanand has urged that in the instant case the first date of hearing is 20-11-1976. It has been submitted that the first date of hearing would be the date when the court applied its judicial mind to the controversy involved in the suit. Unless the court applies its mind and scrutinises the plaint and the written statement with a view to frame issues and dispose of the suit it will not be deemed to be a date of hearing. It is only when the plaint and the written statement are scrutinised and examined for the purposes of framing the issues that the court applies its mind to the lis involved in the suit between the parties and then the hearing takes. Merely allowing an application for adjournment would hardly be deemed to be an application of the judicial mind. Reliance was placed upon the case of Basudeo Sahay v. Brij Mohan Lal, 1983 (2) ARC 404 where a Division Bench of this Court held that the first date of hearing would be the date when the court applies its judicial mind to channelise the lis. Apparently nothing was done on 22-9-76 on which date the court did not apply its judicial mind for channelising the dispute. It was found by the court below that 20-11-1976 was the first date of hearing and on which date the entire amount was found to have been deposited within the postulates of section 20 (4) of the Act. 6. The controversy in the light of the above decisions has to be examined keeping in mind the coming into force of the Amending Act and the amendment to section 20 (4) of the Act. Catena of decisions are there to the effect that this amendment to Explanation I of sub-clause (4) of section 20 of the Act will not be retrospective and is only prospective. The words used in the amendment are precise and unambiguous declaring the intention of the Legislature. Giving due meaning to the Explanation specially inserted by the Legislature the expression 'first hearing' means the first date for any step or proceeding mentioned in the summons served upon the defendant. The words used in the amendment are precise and unambiguous declaring the intention of the Legislature. Giving due meaning to the Explanation specially inserted by the Legislature the expression 'first hearing' means the first date for any step or proceeding mentioned in the summons served upon the defendant. Now it has only to be determined as to whether the amendment would regulate the decisions arrived at or are not in consonance with the amendment as provided in the statute. None of the parties have indicated precisely as to when the suit was filed i.e., prior or after the coming into force of the amendment with effect from 5-7-1976. From the available material on record it is apparent that the suit was filed prior to the date on which the Amending Act 28 of 1976 came into force. Significantly the respondent no. 1, the District Judge, Allahabad, who disposed of the revision by his judgment and order dated 7-2-1980 has observed that the suit was filed prior to the date on which the Amending Act came into force. It was found by the District Judge as under : "It was admitted by the learned counsel for the revisionist that the suit was filed prior to the date on which the Amending Act No. 28 of 1976 came into force." If, as has been found by respondent no. 1, the suit was filed prior to the amendment of 1976 the effect of the Explanation as regards the first hearing would be of no avail to the petitioner. In the case of Sia Ram v. District Judge (supra) it was found that the suit was filed sometime in December 1977 i.e., after the Amending Act 28 of 1976 came into force. Thus the case of Sia Ram v. District Judge (supra) is of no assistance to the petitioner. Similarly the case of Sukhmal Chand Jain v. Suraj Brian, (U. P. Rent Journal 31) which has been decided on the ratio propounded in the case of Sia Ram v. District Judge (supra) but which does not decide whether the Amending Act was prospective or retrospective in nature is of no avail to the petitioner. In view of the above discussion the petition is without any merit and deserves to be dismissed. 7. In the result the petition fails and is hereby dismissed with costs. Petition dismissed.