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Allahabad High Court · body

2007 DIGILAW 50 (ALL)

TILAK RAJ RANA v. RAJ KUMAR GUPTA

2007-01-09

SHISHIR KUMAR

body2007
JUDGMENT Hon’ble Shishir Kumar, J.—This is a tenant’s petition for quashing the order dated 25.3.1994 passed by respondent No. 3, Annexure 3 to the writ petition. 2. The facts arising out of the present writ petition are that the petitioner is the tenant of a shop situate in Mohalla Holiwala, town Hasanpur, District Moradabad on a rent of Rs. 200/- per month of which the respondent No. 1 is the landlord. A notice dated 25.3.1992 was served upon the petitioner under Sections 106/112 of the Transfer of Property Act demanding the arrears of rent along with arrears of house tax, water tax and electricity charges. A suit was filed before the Judge Small Cause Court Moradabad for the eviction of the petitioner on the ground of default in payment of arrears of rent. The suit was registered as Small Causes Suit No. 81 of 1992. The Suit was filed on 22.5.1992. 6.8.1992 was fixed and notices were directed to be served on the petitioner. No notice was served on the petitioner on 6.8.1992. Then it was directed to take the steps fixing 21.9.1992. In spite of the aforesaid, no notice was served. On 21.9.1992 there was strike. Ultimately the case was ordered to be put up on 21.10.1992. On that date, the Court directed the plaintiff-respondent to take necessary steps for service of the notice and summons upon the petitioner through process server and fixed 1.12.1992. A notice was served on 1.12.1992 on the petitioner but along with the said notice and summons, no copies of the plaint and other documents were annexed. As such, on 1.12.1992 the petitioner submitted an application before respondent No. 2 to supply the copies of the plaint and other documents for the purposes of filing the written statement. Time was granted for 15 days and the date was fixed as 6.1.1993. Before 6.1.1993 the total arrears of rent was deposited by the petitioner. 3. The trial Court recorded a finding to this effect that the first date of hearing is to be treated as 6.1.1993 as admittedly, copies of the plaint and other documents were not annexed with the summons and time was granted by the Court for filing the written statement. 3. The trial Court recorded a finding to this effect that the first date of hearing is to be treated as 6.1.1993 as admittedly, copies of the plaint and other documents were not annexed with the summons and time was granted by the Court for filing the written statement. A finding to this effect has also been recorded by the trial Court that there is no dispute to this effect that the arrears of rent and other dues were deposited prior to 6.1.1993. 4. Vide its judgment and order dated 14.1.1993, the Court of Judge, Small Causes has rejected the claim of the respondents and dismissed the same holding therein that 6.1.1993 was the first date of hearing and on that date, the Court had applied its mind, therefore, there is compliance of Section 20 (4) of the Act and petitioner cannot be ejected on the ground mentioned in the plaint. 5. Aggrieved by the aforesaid judgment and order the respondents filed a revision, which was numbered as Revision No. 10 of 1993. The Revisional Court without reversing the finding as to what is the first date of hearing and treating the date of first hearing as 15.12.1992 allowed the revision. 6. It has been submitted by Sri H.R. Misra, learned counsel for the petitioner that admittedly, on 1.12.1992 on an application made by the petitioner, 15 days time was granted for filing the written statement after obtaining the copies of the plaint and other relevant documents and 6.1.1993 was fixed for hearing. Therefore, the first date of hearing is to be treated as 6.1.1993 because on 1.12.1992, the Court has not applied its mind to the merits of the case. As such, 1.12.1992 or 15.12.1992 cannot be treated to be the first date of hearing. The Revisional Court without reversing the aforesaid finding has allowed the revision by the order dated 25.3.1994. 7. It has further been submitted by the counsel for the petitioner that the revisional Court has no jurisdiction to allow the revision without reversing the finding of fact, which has been recorded by the trial court on the basis of the relevant record. The scope of revisional court is very limited. 7. It has further been submitted by the counsel for the petitioner that the revisional Court has no jurisdiction to allow the revision without reversing the finding of fact, which has been recorded by the trial court on the basis of the relevant record. The scope of revisional court is very limited. In support of the contention raised by the learned counsel for the petitioner he has relied upon the judgment of the Apex Court reported in 2002 (3) AWC 2428, Ashok Kumar and others v. Rishi Ram and others and reliance has been placed upon paras 8, 12 and 13 which are reproduced below : ”8. Rule 1 of Order V speaks of issue of summons. When a suit has been duly instituted, 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 the 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 Order XV defines the expression “first hearing” to mean the date for filing written statement or for hearing mentioned in the summons or where more than one 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. 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, the 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 applicable to the State of U.P. It is too evident to miss that in contra diction to the “filing of written statement” mentioned in the definition of the said expression contained in Rule 5 of Order XV, the 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 Ahmad Siddiqui v. Prem Nath Kapoor, 1993 (4) SCC 406. The Bench laid down as follows : "The date of first hearing of a 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 Section 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 the 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 of 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 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.” 12. Now adverting to the facts of the case on hand, it has been noticed above that the suit was posted in May 20, 1980, for final disposal but that date cannot be treated as the first hearing of the suit as the Court granted time till July 25, 1980, to the tenant for filing written statement. On July 25, 1980, time was extended for filing written statement and the suit was again adjourned for final disposal to October 10, 1980. Inasmuch as after giving due opportunity to file written statement, the suit was posted for final disposal on October 10, 1980, it was that date which ought to be considered as the date fixed by the Court for application of its mind to the facts of this case to identify the controversy between the parties and as such, the date of first hearing of the suit. Admittedly, on that date, the appellant-tenant deposited all the arrears of rent. Though, the suit was again adjourned to December 5, 1980, it would be irrelevant because the date of first hearing of the suit is the date when the Court proposes to apply its mind and not the date when it actually applies its mind. It follows that the first hearing of the suit would not change on every adjournment of the suit for final disposal. The effective date of the first hearing of the suit on which the Court proposed to apply its mind, on the facts of the case, was October 10, 1980, as stated above. It follows that the first hearing of the suit would not change on every adjournment of the suit for final disposal. The effective date of the first hearing of the suit on which the Court proposed to apply its mind, on the facts of the case, was October 10, 1980, as stated above. The amount of arrears of rent having been paid on that date, there is compliance of sub-section (4) of Section 20 of the U.P. Act so the tenant is entitled to the benefit of the said provision. 13. In this view of the matter, we are unable to sustain the order under challenge. The impugned order of the High Court upholding the order of the IVth Additional District Judge which confirmed the order of the learned trial Judge, is set aside. The suit of the respondents-landlords shall stand dismissed. The appeal is accordingly allowed. In the facts and circumstances of the case, we make no order as to costs.” 8. On the other hand learned counsel for the respondents Sri S.S. Singh has submitted that the finding recorded by the trial Court is not correct and the revisional court has recorded cogent finding to this effect that as only 15 days time was granted for the purposes of filing the written statement therefore, 15.12.1992 should be treated to be first date of hearing. It has further been submitted on behalf of the respondents that the petitioner was having knowledge regarding pendency of the suit on 6.1.1992 as on or before that date the summons were received by the petitioner, therefore as the petitioner was having the knowledge and admittedly, the arrears of rent and other dues were not deposited by the petitioner, therefore, he cannot be given protection under Section 20 (4) of the Act and taking into consideration the aforesaid fact, the revisional court had allowed the revision and set aside the order passed by the Judge, Small Causes Court. 9. After hearing counsel for the parties and perusal of the record, it is clear that the Judge, Small Causes Court has taken into consideration the fact that from the various records and receipts submitted for the purposes of deposit of house tax and water tax of 1991-92 which has not been rebutted by the respondents, therefore, it will be treated that the notice itself is bad in law. The court below has also taken into consideration that 6.1.1993 would be treated to be the date of first hearing as on the said date, the Court has applied its mind and as 1.12.1992 was not fixed for the date of hearing, therefore 6.1.1993 will be treated to be the date of hearing and admittedly, prior to this date the total arrears of rent which was due to the petitioner was deposited. As regards the finding recorded by the revisional Court the finding to this effect that as on 1.12.1992, 15 days time was granted on an application filed on behalf of the petitioner, as such, the total arrears of rent could have been deposited prior to 15.12.1992. The finding recorded by the court is erroneous. Admittedly, 15.12.1992 was not the date fixed. 6.1.1993 was the date fixed by the court. The revisional Court has not recorded a finding that prior to this date what was the date on which the Court has applied its mind on the merits of the case. The case of the petitioner is fully supported by the Judgment of Ashok Kumar (supra). 10. In view of the aforesaid fact, the judgment and order passed by the revisional Court in SCCR No. 10 of 1993 dated 25.3.1994 cannot be sustained and is liable to be quashed. 11. The writ petition is allowed and the matter is remanded back to the revisional Court for decision afresh taking into consideration the observations made above as well as taking into consideration the Ashok Kumar’s case (supra) after affording opportunities to the parties. No order as to costs. Petition Allowed. ———