JUDGMENT Honble Mrs. Poonam Srivastava, J.—Heard Sri M.K. Gupta, learned counsel for the tenant/petitioner and Sri A.K. Gupta, learned counsel for the landlord/respondents. 2. Counter and rejoinder affidavits have been exchanged. As agreed between the parties, the writ petition is being decided finally at the stage of admission itself under the High Court Rules. 3. S.C.C. Suit No. 173 of 1996 was instituted by the plaintiff/respondents for recovery of arrears of rent and ejectment against Kailash Chandra, predecessor-in-interest. 4. The dispute relates to a building bearing municipal No. 19/278 Premier Nagar, Aligarh, which was let out on monthly rent of Rs. 375/-. A suit was instituted for eviction on the ground of arrears of rent w.e.f. July, 1994, as a consequence his tenancy was terminated by a notice dated 16.8.1996. On receipt of notice, rent was not paid. Hence the suit. 5. The contention of the counsel for the petitioner is that father of the petitioner late Kailash Chandra was not served with any summons either by registered post or process server. There was nothing on record that the tenant ever refused notice. An ex parte decree was passed and service of the ex parte decree was effected by publication. The petitioner filed an application dated 6.8.1997 for setting aside ex parte decree dated 22.7.1997. The application is annexed as Annexure 2 to the writ petition. The Judge, Small Causes Court, vide order dated 24.9.1997 had set aside the ex parte decree dated 22.7.1997 and fixed 11.11.1997 as next date. Subsequently, the case was adjourned on several occasions on account of the lawyers’ strike or for the reasons the Presiding Officer was not sitting in the Court. On 29.9.1998, the defendant/tenant made a request for adjournment and the Court was pleased to fix 16.10.1998. On that date, the defendant/tenant filed his written statement and also deposited a sum of Rs. 14,500/- in compliance of Section 20 (4) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act). The written statement is annexed as Annexure 3 to the writ petition. 6. On perusal of the said statement, it transpires that the tenant had denied that there was any default on his part in making payment of rent, which was already paid till June, 1996 by means of four cheque Nos. 109721, dated 18.12.1994 for Rs. 2250/-, 109727 dated 17.6.1995 for Rs. 2250/-, 109733 dated 27.12.1995 for Rs. 6. On perusal of the said statement, it transpires that the tenant had denied that there was any default on his part in making payment of rent, which was already paid till June, 1996 by means of four cheque Nos. 109721, dated 18.12.1994 for Rs. 2250/-, 109727 dated 17.6.1995 for Rs. 2250/-, 109733 dated 27.12.1995 for Rs. 2250/-, 024743 dated 20.6.1996 for Rs. 2250. These cheque numbers are mentioned in paragraph No. 9 of the writ petition. Reply notice to the demand notice is annexed as Annexure 4 to the writ petition, which supports the aforesaid contention that the four cheque numbers, date of issuance of the amount have also been mentioned in the reply notice. However, notice also mentions that in the event the landlord has deliberately not encashed the said cheques then the same may be returned and the tenant is ready to pay the entire rent in cash. The fact that the rent used to be deposited by means of cheques prior to July 1994, is not disputed. 7. Allegation in the written statement is that the cheques were not encashed only with an ulterior motive to somehow make out a case of default. Paragraph No. 13 of the writ petition mentions that on receipt of reply notice, the defendant/tenant was informed by the plaintiff/respondents that he was out of station, therefore, cheques could not be encashed. Since the time for encashing the cheques had elapsed, cheques were returned and the petitioner issued fresh cheque, which was accepted by the landlord and he also got them encashed and the amount was credited in his account. 8. Learned counsel for the petitioner has emphatically stated that fresh cheque was issued on 25.12.1996 for an amount of Rs. 11,625/­ but prior to acceptance of the cheque by the landlord and getting it encashed, he had instituted the instant suit for eviction on 16.12.1996. Admittedly, this was not in the knowledge of the tenant and the suit was decreed ex parte, which was subsequently recalled and rent was deposited for a second time in compliance of Section 20(4) of the Act. 9. The trial Court, vide judgment and decree dated 21.7.2001 held that the plaintiff/respondents having admittedly received rent till January, 1997 by cheque dated 25.12.1996 and, therefore, the tenant can by no means be said to be defaulter and the suit was dismissed. 9. The trial Court, vide judgment and decree dated 21.7.2001 held that the plaintiff/respondents having admittedly received rent till January, 1997 by cheque dated 25.12.1996 and, therefore, the tenant can by no means be said to be defaulter and the suit was dismissed. The judgment of the Judge, Small Causes Court, is annexed as Annexure 6 to the writ petition. 10. The landlord/respondents challenged the judgment and decree dated 21.7.2001 before the Additional District Judge, Court No. 4, Aligarh, in S.C.C. Revision No. 57 of 2001, Radha Raman Singh v. Kailash Chandra, which was allowed by the Additional District Judge, Court No. 4, Aligarh, on 20.3.2004, which is impugned in the instant revision. 11. The revisional Court has set aside the judgment and decree dated 21.7.2001 of the Judge, Small Causes Court, for the reason that compliance of Section 20(4) of the Act, was not made on the first date of hearing. Secondly, water tax was not deposited. The revisional Court also came to a conclusion that no doubt, after institution of the suit, the amount of Rs. 11,625/- is said to be tendered to the landlord on 25.12.1996, which was deposited in his account and the landlord has unequivocally stated that the aforesaid amount paid through the cheque was credited in his account but the revisional Court was of the view that since the tax and the entire amount was not deposited within one month from the date of receipt of notice, therefore, the tenant is liable for eviction. 12. So far the instant writ petition is concerned, the entire controversy revolves around the question whether the entire deposit was made on the first date of hearing or not. Learned counsels appearing for both sides are in agreement that the first date of hearing is on the date when the Court applies its mind. 13. Learned counsel appearing for the landlord/respondent No. 1 has placed reliance on a number of decisions namely Abdul Alim v. District Judge, Jhansi and others, 1995 (2) ARC 52. This decision is basically on the question of liability of the tenant to deposit water tax. 13. Learned counsel appearing for the landlord/respondent No. 1 has placed reliance on a number of decisions namely Abdul Alim v. District Judge, Jhansi and others, 1995 (2) ARC 52. This decision is basically on the question of liability of the tenant to deposit water tax. The other decisions relied upon by the counsel are Ram Asrey Chaturvedi v. District Judge, Deoria and others, 1994 (1) ARC 422, para 11; Radhey Shyam Patwa v. Xth Additional District Judge, Varanasi, 1993 (2) ARC 485; Ashok Kumar and others v. Rishi Ram and others, (2002) 5 SCC 641 ; Mukesh Kumar Suri v. Sri Rajendra Kumar, 2003 (1) ARC 517; Siraj Ahmad Siddiqui v. Prem Nath Kapoor, 1993 (2) ARC 451 (SC). 14. Learned counsel has emphasized paragraph 13 of the decision of Siraj Ahmad Siddiqui (supra), which is quoted herein below : "13. 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 proceedings mentioned in the summons” referred to in the definition should, we think, be construed to be a step or proceedings 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 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." 15. The decisions cited by the counsel for the respondents has also been relied upon by the counsel for the petitioner while laying emphasis on the question of first date of hearing in the cases of Ashok Kumar and others v. Rishi Ram and others, (2002) 5 SCC 641 ; Mukesh Kumar Suri v. Sri Rajendra Kumar, 2003 (1) ARC 517. This Court, while following decision of the case of Ashok Kumar and others (supra) in its decision in Mukesh Kumar Suri (supra) has elucidated the question regarding first date of hearing. The case of Siraj Ahmad Siddiqui (supra) has also been taken into consideration in the case of Ashok Kumar and others (supra). Paragraph 6 of the decision of Mukesh Kumar Suri (supra) relied upon by the counsel for the petitioner is quoted herein below : "6. It has therefore, to be seen as to what in this case was the date on which the Court proposed to apply its minds. In this case reference is being made to the provisions of the CPC as they should before the amendment made by Act 46 of 1999 and 22 of 2002 as the case pertains to the pre-amendment period and Counsel for the parties advanced their arguments with reference to the provisions as they then stood. No doubt in the summons separate dates of filing written statement 10.8.2000 and final hearing (17.8.2000) were fixed but the date for filing the written statement was extended from time to time. If the Court had refused to extend the time for filing the written statement the date for final hearing specified in the summons would be the date of first hearing irrespective of the fact whether the hearing was actually adjourned. But as the Court had extended the time for filing the written statement, it was not in a position to identify the controversy and to apply mind on 17.8.2000. It has been held by the Apex Court in Ashok Kumar (supra) case that the stage of first hearing would arise only after the opportunity to file the written statement. But as the Court had extended the time for filing the written statement, it was not in a position to identify the controversy and to apply mind on 17.8.2000. It has been held by the Apex Court in Ashok Kumar (supra) case that the stage of first hearing would arise only after the opportunity to file the written statement. If the Court fixes a date for filing the written statement in the summons it logically follows that the date of first hearing that has to be fixed in the summons can only be either the date on which the written statement is to be filed or any date thereafter but it cannot be a date preceding the date for filing the written statement. The effect of extending the time for filing the written statement would consequently be to push forward the date for final hearing to a date on or after the extended date for filing the written statement." 16. In view of the two decisions of the Apex Court as well as this Court wherein principle laid down by the Apex Court has been strictly followed in the case of Mukesh Kumar Suri (supra) I am of the view that deposit made by the tenant was on the first date of hearing, besides the point that rent was accepted twice by the landlord even subsequent to the institution of the suit. Assuming the contention of the landlord to be correct that the cheque was directly deposited but the fact that he has clearly admitted in his statement that he is aware of the fact that the amount was credited in his account, is sufficient to come to a conclusion that the tenant is not liable for eviction. 17. I cannot overlook the fact that initially cheques were accepted but was not encashed by the landlord for the reason best known. Thereafter, a notice was issued for eviction on the ground of arrears of rent whereas lapse if any was on the part of the landlord himself. It is also not disputed that on account of passage of time, cheques could not be encashed and, therefore, fresh cheque was issued. The cheques were either accepted or deposited directly but undisputedly the amount was credited in his account after institution of the suit. The landlord for obvious reason did not inform the petitioner about the suit having been instituted. The cheques were either accepted or deposited directly but undisputedly the amount was credited in his account after institution of the suit. The landlord for obvious reason did not inform the petitioner about the suit having been instituted. Assuming that cheques were directly deposited by the tenant but when the cheques which were not encashed issued prior to institution of the suit were returned to the landlord for keeping it with him are sufficient enough to establish intention of the contesting respondent. The decisions of the Apex Court as well as this Court are also very clear that the first date of hearing will only be when the Court applies its minds and in no event can be prior to filing of the written statement. 18. Initially, the landlord was successful in obtaining an ex parte decree on the ground that the tenant has refused notice but after ex parte decree, he was successful in noticing the tenant through publication regarding eviction decree. All these circumstances are eloquent enough to establish the conduct of the landlord. The Act in its wisdom added Section 20 (4) by subsequent Amendment only to ensure such events and the Court cannot give a complete good-bye to the intention of the legislature. 19. While going through the record, it is evident that when an interim order was granted by this Court vide order dated 1.4.2004 staying the decree for ejectment, rent was enhanced at the rate of Rs. 600/- per month, which the tenant had deposited. There is no objection on that account raised by the landlord/respondents whatsoever. The Court had also taken into account that while calculating the entire decreetal amount, the cheque for an amount of Rs. 11,625/-, which has been credited in the account of the landlord/respondent No. 1, shall be adjusted. Thus, I come to a conclusion that the tenant was not in arrears of rent and, therefore, the revisional Court erred in law while setting aside the judgment and decree of the Judge Small Causes Court. 20. Before I part with the judgment, I am conscious of the fact that the revisional Court cannot enter into question of facts and reassess the evidence. The question of arrears of rent is a question relating to the fact and the Judge, Small Causes Court had already come to a conclusion that there was no arrears of rent. 20. Before I part with the judgment, I am conscious of the fact that the revisional Court cannot enter into question of facts and reassess the evidence. The question of arrears of rent is a question relating to the fact and the Judge, Small Causes Court had already come to a conclusion that there was no arrears of rent. In the event of disagreement, the Judge, Small Causes Court, should have been remanded the case for afresh decision. 21. In the facts and circumstances of the case stated above, I allow the instant writ petition and set aside the judgment and decree dated 20.3.2004 passed by the Additional District Judge, Court No. 4, Aligarh, in S.C.C. Revision No. 57 of 2001 for eviction against the petitioner. The landlord will be entitled to receive rent at the rate of Rs. 600/- per month henceforth, as fixed by this Court earlier and taxes are liable to be calculated on the aforesaid amount. ————