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Uttarakhand High Court · body

2001 DIGILAW 208 (UTT)

Shahin Begum v. Sahne Ilahi

2001-11-02

P.C.VERMA

body2001
JUDGMENT Through this revision u/s 25 of the Provincial Small Causes Courts Act the revisionist (defendant) assailed the judgment and order dated 25-11-1997 and decree dated 10-12-1997 passed by the Judge Small Cause Courts (District Judge), Pauri Garhwal in S.C.C. Suit No.2 of 1992 titled as Sri Sahne IIahi Vs. Smt. Shahin Begum, whereby the learned J.S.CC. (District Judge). decreed the suit of the plaintiff for eviction of the defendant from the suit premises and for recovery of the arrears of rent and damages amounting to Rs. 13,554/- with costs and pendente lite and future damages @ Rs. 300/- per month excluding water tax, sewerage tax and electricity charges on the prevalent rates. 2. The suit no. 2 of 1992 was filed by the plaintiff (respondent) for recovery of rent and ejectment of the defendant (revisionist) from the suit premises on the ground that the plaintiff is the owner of the three storeyed house situated at Jaya Nand Bharati Marg, Kotdwar within the municipal limits of Kotdwar and the defendant was a tenant in two room set with a latrine, bathroom of second storey in the said building @ Rs. 300/- per month exclusive of 12.5% water tax, 3% sewerage tax and Rs. 30 as electric charges. The defendant paid rent, water tax, etc. upto October, 1987.The defendant did not pay rent, taxes and electric charges since November 1987. Thus, the plaintiff gave notice on 22-1-1992 to the defendant demanding arrears of rent and other damages due payable within one month failing which the tenancy would terminate. The said notice was returned on 24-01-1992 with an endorsement "refused to receive" by the defenant. The defendant neither vacated the premises nor paid the rent within one month from the service of notice, hence the suit was filed. 3. The plaintiff (respondent) claimed rent and damages for three years and claimed further damages pendente lite and furrture for use and occupation. The defendant was served. She appeared before the Court, moved application and also filed written statement. In the written statement, the defendant denied the arrears of rent and also disputed the payability of water tax, sewerage tax and electricity charges. According to the defendant, it was inclusive in the rent. 4. After filing of the written statement, the defendant did not deposit the admitted rent. In the written statement, the defendant denied the arrears of rent and also disputed the payability of water tax, sewerage tax and electricity charges. According to the defendant, it was inclusive in the rent. 4. After filing of the written statement, the defendant did not deposit the admitted rent. Therefore, an application was moved by the plaintiff under Order 15 Rule 5 of the Civil Procedure Code. On the next date, since the defendant did not appear, the Court ordered to proceed ex parte. The application under Order 15 Rule 5 was withdrawn and suit proceeded ex parte. On 16-06-1993, the plaintiff was examined. The suit was decreed ex parte. The decree was prepared on 24-6-1993. Thereafter, the defenant moved an application under order 9 Rule 13, C.P.C. which was allowed. On depositing the entire decretal amount, ex parte judgment and decree dated 17-6-1993 and 24-6-1993, respectively were set aside. 5. After restoration of the case, the parties led their evidence and arguments were advanced on the basis of the pleadings of the parties. The learned J.S.C.C.( District Judge) after evaluating the oral and documentary evidence on record held that notice (Ex.1) was sent to the defendant by registered A.D., it was duly tendered to the defendant and defendant herself refused to accept it, hence it was sent back with the endorsement of refusal. Therefore, it was sufficient service by refusal on the defendant. 6. The learned J.S.C.C., Pauri Garhwal, further held that the evidence on record proves that the defendant was in arrear of rent from November, 1987 till the date of service of notice. Inspite of service of notice, neither the rent was paid nor premises was vacated. Therefore, the suit for eviction and recovery of arrears of rent and damages was liable to be allowed and accordingly he passed the order impugned in the revision. 7. The learned counsel for the revisionist submitted that the finding recorded by the learned J.S.C.C. (District Judge), Pauri Garhwal that the rate of rent was Rs. 300/- per month excluding water tax, sewerage and electricity charges is perverse. His finding that notice was served is also perverse as the address given in the notice was different and most relevant fact is that there is no finding that the revisionist was in default for more than four months and in the absence of that finding the suit cannot be decreed. 8. His finding that notice was served is also perverse as the address given in the notice was different and most relevant fact is that there is no finding that the revisionist was in default for more than four months and in the absence of that finding the suit cannot be decreed. 8. On the other hand, the learned counsel for the respondent submitted that the learned J.S.C.C. (District Judge), Pauri Garhwal has formulated the points to be decided and three points were detemined to be decided: 1. Whether the rent of Rs. 300/- per month is exclusive of water tax, sewerage tax and electricity charges? 2. Whether the notice terminating the tenancy and demand was duly and sufficiently served on the tenant? 3. Whether the defendant was in arrears of rent from November, 1987 till the date of service of notice? 9. On each questions, the learned J.S.C.C. (District Judge), Pauri Garhwal after evaluating and appreciating the oral and documentary evidence on record has given a finding of fact in favour of the plaintiff. Since the finding recorded by J.S.C.C. is based on the evidence on record, therefore, the same cannot be said to be perverse. Thus, the contention of the learned counsel for the revisionist has no force. 10. Learned counsel for the petitioner lastly contended that the application under Order 15 Rule 5 C.P.C. for striking of the defence was rejected by the order dated 24-3-1994. Therefore, the revisionist is entitled for protection provided in sub section (4) of Section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called the Act). 11. The learned J.S.C.C.(District Judge), Pauri Garhwal has vide order dated 24-3-1994 held that the amount deposited under section 17 (1) of S.C.C. Act was available in the Court, it can be adjusted towards the deposits under order XV Rule 5 of Section 20 (4). It has not been recorded by the J.S.C.C. that it should be treated as deposits to have been made on the first date of hearing. It has not been recorded by the J.S.C.C. that it should be treated as deposits to have been made on the first date of hearing. Therefore, it is to be determined as to whether in view of the order dated 24-4-1994, the petitioner was entitled to the protection of sub section (4) of Section 20 of the Act, which reads as under: In any suit for eviction on the ground mentioned in the 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 percent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) 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 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 purpose of this sub-section- (a) the expressing 'first hearing' means the first date for any step or proceeding mentioned in the summons served on the defendant. (b) the expression 'cost of suit' includes one-half of the amount of the counsel's fee taxable for a contested suit.] 12. This sub section alongwith explanation came for consideration before the Apex Court in Ashok Kumar and others Vs. Rishi Ram and others reported in A.I.R. SCW 2837, which reads as under: "7. (b) the expression 'cost of suit' includes one-half of the amount of the counsel's fee taxable for a contested suit.] 12. This sub section alongwith explanation came for consideration before the Apex Court in Ashok Kumar and others Vs. Rishi Ram and others reported in A.I.R. SCW 2837, which reads as under: "7. A perusal of the sub-section, quoted above, discloses that in any suit for eviction on the ground mentioned in clause (a) of sub-section (2) of section 20 if 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 at the first hearing of the suit (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 landlord's costs of, the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of section 30, the Court is empowered to pass an order relieving the tenant against his liability for eviction on the aforesaid ground in lieu of passing a decree of eviction. The expression 'first hearing' is defined in clause (a) of the Explanation appended to the said sub-section to mean the first date for any step or proceeding mentioned in the summons served on the defendant. The question that needs to be resolved here is: What is the import of the clause (a) of the explanation defining the expression 'first hearing'? Inasmuch as the definition in clause (a) refers to any step or proceeding mentioned in the summons served on the defendants, it would be useful to refer to the provisions of Order V of the Code of Civil Procedure in so far as they are relevant for our purpose. 8. Rule 1 of order V speaks of issue of summons. When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day specified therein. Rule 2 thereof enjoins that the summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Rule 1 of order V speaks of issue of summons. When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day specified therein. Rule 2 thereof enjoins that the summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Rule 5 of Order V says that 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 which shall be noted in the summons. However, in every suit heard by a Court of Small Causes, the summons shall be for a final disposal of the suit. It may be apt to notice here that sub-section (3) of Section 20 of the Act was deleted in U.P. Civil Laws Amendment Act, 1972 with effect from September 20, 1972 and Rule 5 was inserted in Order XV of the' Civil Procedure Code which deals with disposal of the suit at the first hearing. Explanation 1 to Rule 5 of O. XV defines the expression 'first hearing' to mean the date for filing written statement or for hearing mentioned in the summons or wheremore than one of such dates are mentioned, the last of the dates mentioned. But the said expression, as noticed above, is defined in clause (a) of Explanation to Sub-section (4) of Section 20. Section 38 of the U.P. Act says that the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act or in the Code of Civil Procedure, therefore, definition contained in clause (a) of Explanation to sub section (4) of Section 20 of the Act will prevail over the definition contained in Rule 5 of Order XV of the Code of Civil Procedure as application to the State of U.P. It is too evident to miss that in contradistinction to the 'filing of the written statement' mentioned in the definition of the said expression contained in Rule 5 of Order XV, a language employed in clause (a) of the Explanation to Section 20(4) of the U.P. Act, refers to 'the first date for any step or proceeding mentioned in the summons served on the defendant'. In our view those words mean the first date when the court proposes to apply its mind to identify the controversy in the suit and that stage arises after the defendant is afforded an opportunity to file his written statement. The controversy is no longer res integra. The aforementioned provisions fell for consideration of a three -Judge Bench of this Court in Siraj Ahmed Siddiqui Vs. Prem Nath Kapoor- 1993 (4) S.C.C 406. The Bench laid down as follows: "The date of first hearing of first suit under the Code is ordinarily understood to be the date on which the Court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. Does the definition of the expression "first hearing" for the purposes of S. 20 (4) mean something different? The step or proceeding mentioned in the summons referred to in the definition should, we think, be construed to be a step or proceeding to be taken by the Court for it is, after all, a "hearing" that IS subject matter of the definition, unless there be something compelling in the said Act to indicate otherwise; and we do not find in the said Act any such compelling provision. Further, it is not possible to construe the expression "first date for any step or proceeding" to mean the step of filing the written statement, though the date for that purpose may be mentioned in the summons, for the reason that as set out earlier, it is permissible under the Code for the defendant to file a written statement even thereafter but prior to the first hearing when the Court takes up the case, since there is nothing in the said Act which conflicts with the provisions of the Code in this behalf. We are of the view, therefore, that the date of first hearing as defined in the said act is the date on which the Court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary." 13. We are of the view, therefore, that the date of first hearing as defined in the said act is the date on which the Court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary." 13. In the present case, as noticed in the preceding paragraph of judgment that on account of non-appearance of the defendant, the suit proceeded exparte and the statement of the plaintiff was recorded and the suit was decreed ex-parte. Therefore, in view of the above law, the Court has applied its mind on the point in issue to be decided in the case when the court proceeded to record the statement of the plaintiff. That date was, the date of first hearing. There is no evidence on record that any amount of rent was deposited on or before the said first date of hearing. Therefore deposits made by the defendant after restoration of the case cannot be said to be deposits on the first date of hearing. Thus, benefit of sub-section (4) of Section 20 read with the explanation is not available to the defendant. 14. In so far as the order dated 24-3-1994 is concerned, the Court has not gone on this question and has not decided the same. Therefore, this order is of no help to the revisionist. 15. For the reasons recorded above, the revision fails and is hereby dismissed.