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2004 DIGILAW 1496 (ALL)

Shanti Devi v. Devi Prasad Gupta

2004-08-09

S.U.KHAN

body2004
JUDGMENT S. U. Khan, J.—This is tenant’s writ petition arising out of S.C.C. Suit No. 128 of 1979 on the file of J.S.C.C., Gorakhpur instituted by landlord respondent No. 1. The said suit was filed for eviction of the tenant petitioner from the tenanted accommodation on the ground of default and for recovery of arrears of rent and water tax due till the date of filing of the suit, pendente lite and future. The rate of rent is Rs. 32 per month. In the plaint it was alleged that rent was due since May, 1977. Tenant petitioner asserted that she had paid rent till October, 1978. 2. In the plaint ground of sub-letting was also taken but the said issue was decided against the plaintiff and that is no more res-integra. 3. Regarding period of default trial court/J.S.C.C., Gorakhpur held that the version of the plaintiff was correct and defendant was defaulter since May, 1977. 4. The main point to be decided in this writ petition is regarding benefit of Section 20 (4) of U. P. Act No. 13 of 1972 hereinafter referred to as U. P. Rent Control Act (U.P.R.C. Act in short). The trial court found that the tenant had made the entire deposit as required by the said sub-section. Trial court held that as against the requirement of Rs. 2,176.60 the tenant had deposited Rs. 2,198. The trial court, therefore, through judgment and decree dated 15.2.1982 dismissed the suit for ejectment but decreed the suit for recovery of arrears of rent from May, 1977, till the date of the suit and permitted the plaintiff to withdraw the amount. Both the parties filed revisions against the said judgment and decree. Civil Revision No. 155 of 1982 was filed by the respondent-landlord and Civil Revision No. 172 of 1982 was filed by the tenant petitioner. Addl. District Judge/Special Judge, Gorakhpur consolidated both the revisions and decided the same through judgment and order dated 12.1.1983. Defendant-tenant’s revision was dismissed and plaintiff-landlord’s revision was allowed and relief of ejectment against defendant petitioner was also granted. The revisional court held that the amount deposited by tenant was beyond first date of hearing. 5. Suit was instituted on 15.5.1973 and summons fixing 31.8.1979 for final hearing was served personally upon the petitioner-defendant No. 1. Defendant No. 1 filed her written statement on 31.8.1979. The revisional court held that the amount deposited by tenant was beyond first date of hearing. 5. Suit was instituted on 15.5.1973 and summons fixing 31.8.1979 for final hearing was served personally upon the petitioner-defendant No. 1. Defendant No. 1 filed her written statement on 31.8.1979. The suit could not be taken up on 31.8.1979 for hearing. The suit was actually heard on 3.2.1982. Evidence was also recorded on the said date. 6. According to the landlord respondent 31.8.1979 was the date of first hearing while according to the tenant 3.2.1982 was the date of first hearing. The trial court had refused to strike off the defence of tenant. The revisional court in its judgment held that defence was liable to be struck off. Even though with the said findings of the revisional court, I do not agree still reversal of the said findings will not make any material difference as each and every plea taken by the defendant and entire evidence adduced by her has been taken into consideration by the revisional court. 7. Regarding benefit of Section 20 (4) of U.P.R.C. Act, revisional court held that the date of first hearing was 31.8.1979 and by that date entire amount had not been deposited. In fact defendant petitioner pleaded that she had paid rent till October, 1978. She deposited the rent only w.e.f. November, 1978. It was only on 8.9.1981 that rent from May, 1977 till October, 1978 was deposited along with two months current rent. It appears that the amount required to be deposited under other heads and cost of the suit etc. was also deposited on 8.9.1981. Total amount of Rs. 950 was deposited upon the said date. 8. Regarding other points like validity of notice and sub-letting revisional court agreed with the trial court. 9. Revisional court also observed that since 31.8.1979 till 3.2.1982 different dates were fixed in the suit, which was adjourned on the application of the parties or due to non-availability of presiding officer or paucity of time. Order sheet of the suit has not been annexed along with the writ petition. 10. “First date of hearing” as used in Section 20 (4) of U.P.R.C. Act has been discussed by the Supreme Court in several authorities. Order sheet of the suit has not been annexed along with the writ petition. 10. “First date of hearing” as used in Section 20 (4) of U.P.R.C. Act has been discussed by the Supreme Court in several authorities. The two such latest authorities are in Mam Chand Pal v. Shanti Agarwal, 2002 (2) AWC 1257 (SC) : AIR 2002 SC 955 and Ashok Kumar v. Rishi Ram, 2002 (3) AWC 2428 (SC) : AIR 2002 SC 2520 . According to the aforesaid authorities the date on which presiding officer proposes to apply the mind and is in a position to apply the mind is the date of first hearing. In case written statement has been filed then Court is in a position to apply its mind. Date of hearing once arrived at, does not change if the case is not taken up due to any reason. 11. Accordingly the view of revisional court regarding interpretation of first date of hearing is perfectly in accordance with law. In between 31.8.1979 and 8.9.1981, the first date of hearing and the date on which complete deposit was made, more than two years had expired. During this period of two years several dates in the suit must have been fixed. Nothing has been brought on record to show that what transpired on the dates, which were fixed in between 31.8.1979 and 8.9.1981. 12. Learned counsel for the petitioner has cited an authority of the Supreme Court in Shyam Lal v. A. N. J. Sabha, AIR 1987 SC 197 , in support of his contention that the date on which evidence was recorded, i.e., 3.2.1982 should be taken to be first date of hearing. The said authority discussed the provisions of Punjab Rent Control Act. In the said authority an earlier authority of the Supreme Court in Ved Prakash v. Vishwa Mohan, AIR 1982 SC 816 , dealing with U.P.R.C. Act was considered. The said authority of Ved Prakash has been considered in both the aforesaid Supreme Court authorities of 2002. 13. Accordingly there is no merit in the writ petition and it is dismissed. 14. The said authority of Ved Prakash has been considered in both the aforesaid Supreme Court authorities of 2002. 13. Accordingly there is no merit in the writ petition and it is dismissed. 14. However, petitioner is granted time till 15.2.2005 to vacate the property in dispute provided that within one month from today she files an undertaking before the revisional court to the effect that on or before 15.2.2005 she will willingly vacate and hand over possession of property in dispute to the landlord/respondent No. 1. The entire decreetal amount due till 15.2.2005 after deducting the amount already deposited shall also be deposited by petitioner within one month from today. The entire amount already deposited and to be deposited under this order shall be paid to landlord. In case of default in compliance of either of the two conditions, petitioner shall be ejected from the premises in dispute in execution proceedings through process of court after one month.