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1991 DIGILAW 676 (ALL)

Ramesh Kumar Verma v. District Judge, Jhansi

1991-04-26

M.L.BHAT

body1991
JUDGMENT M.L. Bhat, J. - The petitioner is a tenant of the shop in dispute. He is aggrieved against the judgment and decree passed by the Judge Small Causes (Munsiff), Jhansi, dated 22.9.1990 which was affirmed by the District Judge, Jhansi vide his judgment dated 11.2.1991 in revision. 2. Respondent No. 3 had filed a suit for recovery of arrears of rent and ejectment of the petitioner. The said suit was registered as 137 of 1985. Respondent No. 3's allegation was that the petitioner did not pay rent despite demand, with effect from 6.2.1978 to 5.5.19(sic)5, and he did not pay water-tax amounting to Rs. 860/-. A notice is said to have been sent to the petitioner demanding the rent and determining his tenancy. However, there was a dispute about the amount of rent which was payable and the amount of water-tax which was due from the petitioner. The Courts below have held that the petitioner did not deposit the rent on the date of 1st hearing of the suit therefore, he was liable to be ejected from the property in question. However, on revision, the claim of the landlord with regard to the recovery of Rs. 536 towards water-tax was dismissed. 3. The petitioner's case is that the landlord has failed to prove as to from which period the rent was due from him. It is contended that the findings of the Courts below about the date of 1st hearing being 18.10.1985 is wrong and erroneous and therefore, the judgment and decree of the Courts below in respect of the ejectment of the petitioner is bad because the petitioner has not failed to deposit the rent on the date of 1st hearing, which according to the petitioner was 30.1.1990. He is said to have deposited the amount on 8.2.1990. From the date of institution of the suit upto 30.1.1990 the suit was dismissed in default three times. A supplementary affidavit has also been filed by the petitioner to the effect that the date of 1st hearing was not 18.10.1985, but it was 30.1.1990. On 18.10.1985 he had not received the copy of the plaint and had made an application for supply of the same, which right of the petitioner is conceded by the landlord. Unless he could receive copy of the plaint he was not able to make the deposit or make effective reply. On 18.10.1985 he had not received the copy of the plaint and had made an application for supply of the same, which right of the petitioner is conceded by the landlord. Unless he could receive copy of the plaint he was not able to make the deposit or make effective reply. Therefore, he will not be deemed to have appeared in the trial Court on 18.10.1985. Other side has appeared on caveat I heard both the sides at the stage of admission. 4. It has been held in Subhash Chandra Jain v. 1st Additional District Judge and others, 1982(2) ARC 319 that 'first hearing of the suit will be the date when the Court applies its mind to the lis'. In Smt. Ram Shree Devi v. Liyaqat Hussain, 1981 ARC 683, it has been held that when Court fixed a date for hearing, that will be the date of first hearing. On the date mentioned in summon defendant was not served. It was extended and on extended date the Presiding Officer was absent and on dates fixed thereafter, the Court adjourned the case on one ground or another. Finally two dates were fixed one for filing written statement and other for hearing, date of hearing was held to be date of 1st hearing. The defence could not be struck out for non-payment of rent because the date of first hearing was taken to be when the Court had fixed the date of hearing. In Transtel Electronics Ltd. v. S.N. Gundu Rao, 1983(1) ARC 395, the tenant had claimed protection under Section 20(a) of the Act of 1972 because the Court had failed to consider that the petitioner was in arrears of rent for more than four months and had failed to pay the rent in spite of demand. In Ravindra Kumar Chopra v. The 3rd Additional District Judge and others, 1984(1) ARC 387, it was held that while determining the date of first hearing it was necessary for the Court to examine as to whether summons was accompanied with copy of plaint. It is necessary that summons should be accompanied with copy of the plaint under Order 5, Rule 2, CPC. If there is no copy of the plaint with summons and the defendant appears in pursuance of the summons, his appearance will not be deemed as date of first hearing. 5. It is necessary that summons should be accompanied with copy of the plaint under Order 5, Rule 2, CPC. If there is no copy of the plaint with summons and the defendant appears in pursuance of the summons, his appearance will not be deemed as date of first hearing. 5. Learned counsel for the petitioner-defendant has multiplied the authorities on this point. There is no dispute that with regard to the controversy of non-accompanying of copy of the plaint with the summons and in pursuance of summons which were not accompanied by copy of the plaint, the defendant appears in the Court that will not be his first appearance. 6. It is the case of petitioner that first appearance in this case would be 30.1.1990. On that date the petitioner is said to have appeared and his advocate has taken time for filing written statement Assuming that 18.10.1985 will not be the date of first hearing, but the petitioner's contention that 30.1.1990 is the date of first hearing also cannot be believed. He had appeared after receipt of copy of the plaint and was directed to file written statement on 7.4.1989 after the case was restored. Learned counsel for the petitioner could not explain as to why 7.4.1989 cannot be held to be the date of first appearance of the defendant. It is presumed that before the date he had received copy of the plaint, therefore, he had not raised any objection to the filing of the written statement. List of dates accompanying the supplementary-affidavit has not helped the petitioner. By that list of dates, it cannot be held that the date of first appearance of the petitioner-defendant was 30.1.1990 and not 7.4.1989. 7. Within the time provided under law he had not deposited the rent which was due against him from 7.4.1989, therefore, he will be deemed to be defaulter. 8. Learned counsel for the petitioner has argued that the Courts below have incorrectly held 18.10.1985 as date of first hearing. The findings of Courts below with regard to the date of first hearing may be incorrect but that cannot help the petitioner inasmuch as, admittedly, he appeared on 7.4.1989 after the case was restored and the defendant was directed to file a written statement. That being so, the contention that date of first hearing was 39.1.1991 is incorrect. The findings of Courts below with regard to the date of first hearing may be incorrect but that cannot help the petitioner inasmuch as, admittedly, he appeared on 7.4.1989 after the case was restored and the defendant was directed to file a written statement. That being so, the contention that date of first hearing was 39.1.1991 is incorrect. The writ petition is framed on the premises that the date of first hearing was 30.1.1990. That is incorrect. 9. The writ petition, for the reasons mentioned above, is not maintainable and is liable to be dismissed which is dismissed hereby in limine.