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Allahabad High Court · body

2009 DIGILAW 5 (ALL)

KHUSHAL SINGH v. AMNA KHATOON

2009-01-05

V.K.SHUKLA

body2009
( 1 ) PRESENT JSCC Revision has been filed against the judgment and order dated 18. 11. 2008 and decree dated 02. 12. 2008 passed by IInd Additional District Judge, Jalaun at Orai in JSCC Case No. 7 of 2005 (Smt. Amna Khatoon Vs. Sri Khushal Singh [deceased]and others ). ( 2 ) BRIEF background of the case is that Khushal Singh was tenant of the shop situated at Mohalla Patel Nagar Orai, District Jalaun. Said premises in question had been purchased by Smt. Amana Khatoon from Atma Prakash, erstwhile landlord. Khushal Singh was tenant of the premises in question at the rent of Rs. 1000/- per month. As per Revisionist said rent in question was sought to be tendered by way of money order. Said amount in question was refused to be accepted. In this background Khushal Singh instituted Misc. Case No. 29 of 2003 under Section 30 of U. P. Act No. XIII of 1972 in the court of Civil Judge (Junior Division), Orai. In the said proceeding land lady appeared and filed her objection on 06. 02. 2004 and order was passed allowing application under Section 30 of U. P. Act No. XIII of 1972. After said order has been passed on 16. 04. 2004 land lady gave notice to the tenant clearly and categorically mentioning therein that she is prepared to accept the rent in question and same may by paid directly. Said notice which has been sent was replied by Khushal Singh on 29. 04. 2004 giving therein details that notice sent was illegal and order passed under Section 30 of U. P. Act No. XIII of 1972 has already been passed and deposits are being made accordingly. Revision has also been preferred against the order dated 06. 02. 2004 being Revision No. 3 of 2004 and same was also rejected on 31. 05. 2005. Against the said order Civil Misc. Revision has also been preferred against the order dated 06. 02. 2004 being Revision No. 3 of 2004 and same was also rejected on 31. 05. 2005. Against the said order Civil Misc. Writ Petition No. 58923 of 2005 was filed before this Court and this Court had dismissed the aforesaid writ petition but made observation that any suit which may be filed by land lady against the tenant, merely because Civil Judge (JD) has permitted the tenant to deposit the rent it does not mean that the deposit will be treated as valid and suit being filed then said issue would be decided without being influenced by any of the observation made in the orders passed by Civil Judge (JD) or Revisional Court in the judgements impugned in the instant writ petition. . Thereafter on 01. 09. 2005 notice was given by land lady and said notice was replied on 07. 09. 2005. On 14. 11. 2005 JSCC Suit No. 7 of 2005 has been field for arrears of rent and ejectment. In these proceedings so undertaken written statement was filed on 28. 07. 2006. An application under Order 15 Rule 5 of C. P. C has also been moved on 18. 08. 2006 and to the same objection has been filed on 02. 09. 2006. Thereafter final judgment has been passed by IInd Additional District Judge, Jalaun at Orai in JSCC Case No. 7 of 2005 (Smt. Amna Khatoon Vs. Sri Khushal Singh [deceased]and others) by holding that deposit made under Section 30 of U. P. Act No. XIII of 1972 were not valid deposit and further on first date of hearing amount in question has not been deposited, and said amount was short. Deposits made were conditional deposit as such benefit of Section 20 (4) of U. P. Act No. XIII of 1972 cannot be extended. At this juncture present Civil Revision has been filed. Rs. S. B. Singh, learned counsel for the revisionists contended with vehemence that in the present case totally arbitrary view has been taken that deposits made under Section 30 of U. P. Act No. XIII of 1972 were not valid deposit whereas there was deliberate refusal on the part of the land lady to accept rent as such said deposit has been validly made, in this background finding of fact recorded on the said score is perverse and unreasonable. Coupled with this facts of the case would clearly demonstrate that on first date of hearing as envisaged under Section 20 (4) of U. P. Act No. XIII of 1972 deposits as contemplated has been made as such revisionist were entitle to be saved from rigours of eviction decree, as such judgment and order passed in JSCC suit is unsustainable and liable to be quashed/set aside. ( 3 ) COUNTERING said submission Sri Subhash Kumar, Advocate appearing on behalf of land lady contended with vehemence that fact and circumstances of the case clearly demonstrates that deposits made under Section 30 of U. P. Act No. XIII of 1972 cannot be termed to be valid deposits as even after receipt of notice of land lady that she was ready and willing to accept the rent and same be paid directly and not in Court ans as same was never done as such finding of fact returned is neither perverse nor unreasonable, as such order impugned on this score is not at all liable to be interfered with. Coupled with this it has been contended that on the first date of hearing amount in question has not been deposited and deposit in question was short and on application being made to withdraw the said amount objections had been filed opposing withdrawal, as such this is clear cut case of conditional deposit and thus, by no stretch of imagination benefit of Section 20 (4) of U. P. Act No. XIII of 1972 could be extended, as such JSCC Revision as it has been framed and drawn is liable to be dismissed. ( 4 ) AFTER respective arguments have been advanced first question to be adverted to is as to whether deposits made under Section 30 of U. P. Act No. XIII of 1972 in the facts of the present case can be said to be valid deposit or not ? ( 4 ) AFTER respective arguments have been advanced first question to be adverted to is as to whether deposits made under Section 30 of U. P. Act No. XIII of 1972 in the facts of the present case can be said to be valid deposit or not ? ( 5 ) FACTUAL position which is emerging in the present case is that shop in question was earlier owned by different incumbent Atma Prakash and same was purchased by Smt. Amana Khatoon, land lady, and thereafter from the case set up by revisionist themselves it is reflected that rent for the month of June and July 2003 was sent by money order and on the said money order endorsement was made by the Postman to the effect that as per landlady same was in adequate rent, as such rent will not be accepted and thereafter for depositing the rent in Court application under Section 30 of U. P. Act No. XIII of 1972 has been filed and therein land lady appeared and contested the said application by contending that she is ready and willing to accept the rent outside the court. Said application was allowed on 06. 02. 2004 and pursuant thereto deposits were made in Court under Section 30 of U. P. Act No. XIII of 1972. On 16. 04. 2004 notice was given copy of which has been appended as Annexure-5 to the said revision and therein categorical mention was made that rent in question be paid directly and receipts be obtained in lieu of the same. Said notice was replied vide Annexure-6 to the said application on 29. 04. 2004 and most surprising feature of the reply is that revisionist at no point of time had ever showed any anxiety to make payment of rent directly and to the contrary it was mentioned therein that amount in question has been deposited in Court as such said amount in question be withdrawn. 04. 2004 and most surprising feature of the reply is that revisionist at no point of time had ever showed any anxiety to make payment of rent directly and to the contrary it was mentioned therein that amount in question has been deposited in Court as such said amount in question be withdrawn. At this juncture Section 30 (1) of U. P. Act No. XIII of 1972 is being looked into: section 30 (1):- Deposit of rent in Court in certain circumstance: if any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it. A bare perusal of the provision quoted above would go to show that tenant on refusal of landlord to accept rent may deposit such amount in prescribed manner, and continue to deposit such rent due for subsequent period until the landlord in the meantime signifies by notice in writing to tenant his willingness to accept it. ( 6 ) ON the parameters provided for, the factual position which is emerging that no attempt or endeavour has been made by tenant after giving of the notice on 16. 04. 2004 to make payment to the land lady directly and obtained receipts in lieu of the same, in this background once land lady in question was ready and willing to accept the rent outside the court and has clearly and categorical mentioned same in the notice which was sent on 16. 04. 2004 then in the circumstances it was bounden duty of the tenant to make payment outside the court once readiness and willingness was there to accept the rent and issue receipts. Judge Small Causes Court has considered each and every aspect of the matter and recorded categorical finding that after notice being sent on 16. 04. 2004 at no point of time tenant in question has ever showed any willingness to make rent outside the Court and obtained receipts. Judge Small Causes Court has considered each and every aspect of the matter and recorded categorical finding that after notice being sent on 16. 04. 2004 at no point of time tenant in question has ever showed any willingness to make rent outside the Court and obtained receipts. Once this is categorical finding of fact that request was made to make payment directly and no attempt and endeavour was made by tenant to make payment directly and deposits were made directly in the Court under Section 30 of U. P. Act No. XIII of 1972 then in this background of the case said finding of fact which has been returned by the JSC Court that deposits made under Section 30 cannot be termed to be valid deposit cannot be treated to be perverse and arbitrary finding. This Court while passing judgment on 05. 09. 2005 had clearly and categorical observed to give categorical finding qua the deposits under Section 30 suit being filed, and said issue to be decided without being influenced by any of the observation made in the orders passed by Civil Judge (JD) or Revisional Court in the judgements impugned i. e. 06. 02. 2004 and 31. 05. 2005 and in the present case without being influenced by any of the observation made therein on the basis of record available categorical finding of fact has been recorded that deposit made under Section 30 after issuance of notice dated 16. 04. 2004 are not valid. Consequently justifiable and lawful conclusion has been arrived at and same warrants no interference by this Court in exercise of authority under Section 25 of Provincial Small Cause Courts Act, 1887. ( 7 ) NOW next question to be adverted is as to whether in the facts and circumstances of the case benefit of Section 20 (4) of U. P. Act No. XIII of 1972 has wrongly not been extended to the revisionist, to save the revisionist from the rigours of eviction decree ? ( 8 ) IN order to appreciate respective arguments, Section 20 (4) of U. P. Act No. XIII of 1972 is being reproduced below: "20 Bar of suit for eviction of tenant except on specified grounds- (1 ). . . . . . . . . . (2 ). . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . (3 ). . . . . . . . (4) In any suit for eviction on the ground mentioned in 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 the 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 landlords 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 this 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 purposes of this sub-section- (a) the expression "first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant; (b) the expression cost of the suit includes one-half of the amount of counsels fee taxable for contested suit. " ( 9 ) BARE perusal of the provision quoted above would go to show that Chapter IV of U. P. Act No. 13 of 1972 deals with regulation and eviction. Sub-Section (1) of Section 20 of U. P. Act No. 13 of 1972 bars suit for eviction of tenant except on specified grounds as provided in Sub-section (2) of Section 20. Sub-section (2) of Section 20 provides and gives right to landlord to institute on one or more ground mentioned, suit for eviction of tenant from a building after determination of his tenancy. Sub-section (2) of Section 20 provides and gives right to landlord to institute on one or more ground mentioned, suit for eviction of tenant from a building after determination of his tenancy. Under Clause (a) of Sub-section (2) of Section 20 of the Act, the ground provided for is that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Thus, this provision is clear that from the date of service of notice of demand in case tenant proceeds to pay arrears of rent, which is not less than four months, to the landlord within one month, the tenant can save himself from institution of suit and in case tenant has chosen not to make payment within one month from the date of service of notice of demand then after institution of suit another opportunity is provided to him to save his eviction by depositing said amount and another amount provided for on the first day of hearing. Thus, two opportunities have been provided to the tenant; (i) pre-institution of suit to make payment within one month from the date of service of notice of demand upon him and (ii) post institution of suit: on the first date of hearing make payment unconditionally entire amount of rent and damages together with interest and cost of suit. In case on second occasion petitioner fails to deposit the amount on first date of hearing then there is no option except for passing decree and order of eviction in terms of provision mentioned above. ( 10 ) THE "first date of hearing" has been subject matter of interpretation before Honble Apex Court as well as this Court on various occasions and Honble Apex Court in the case of Siraj Ahmad Siddiqui vs. Prem Nath Kapoor 1993 (22) ALR page 375, took the view that meaning of the expression "first hearing" is the date on which court proposes to apply mind to determine the points in dispute and to frame issues. In the said case summons was not served, but the appellant appeared before the court and prayed for grant of time and another date was fixed as the date of hearing. In the said case summons was not served, but the appellant appeared before the court and prayed for grant of time and another date was fixed as the date of hearing. Entire rent was deposited, and the view taken was that on the first date of hearing full amount of rent was deposited. Therefore, there was compliance by the appellant with the provisions of Section 20 94) of U. P. Act No. XIII of 1972, prior to the date fixed by the Court for the defendant to take the first step in the suit. Relevant paragraphs 10, 11, 12, 13, 14, 15 and 16 of the said judgment are being extracted below: "10]. Learned counsel for the respondent drew attention to the provisions of Section 20 (4) of the said Act and laid emphasis upon the Explanation thereto which said that for the purpose of this sub-section the expression "first hearing" meant the first date for any step or proceedings mentioned in the summons served on the defendant. In his submission, the date of first hearing was the date of the service of the summons on the appellant, which, in the instant case, had to be presumed since the summons had been returned by the postal authorities with the remark "refused". We do not question the latter part of the submission but, in our view, the date of the first hearing cannot, plainly, be the date of service of the summons. That is plain from the expression "first hearing" itself and from the meaning given to it in the said Act. 11]. In the alternative, learned counsel for the respondent submitted that the date of first hearing was 24th February, 1984 because that was the date of hearing at which the court had made the order quoted above. 12]. A few provisions of the said Act and of the Code of Civil Procedure, 1908, need to be examined. Section 38 of the said Act states that the provisions thereof would have effect notwithstanding anything inconsisent therewith contained in the Code. Order V, Rule 1 of the Code states that when a suit has been duly instituted summons may be issued to the defendant to appear and answer the claim on a day to be therein specified, provided that no summons need be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiffs claim. Order V, Rule 1 of the Code states that when a suit has been duly instituted summons may be issued to the defendant to appear and answer the claim on a day to be therein specified, provided that no summons need be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiffs claim. Where the summons is issued the court may direct the defendant to file a written statement on the date of his appearance and cause an entry to that effect to be made in the summons. Order V, Rule 5 provides that in every suit heard by a Court of Small Causes (which the trial Court was) the summons shall be for the final disposal of the suit. Order VIII, Rule 1 of the Code uses the expression first hearing and it says that the defendant shall on or before the first hearing or within such time as the court may permit present a written statement of his defence. The court is called upon to frame issues under the provisions of Order XIV, Rule 3 on the basis of the pleadings and documents of either party to the suit. 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 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 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 patties to the suit and to frame issues, if necessary. 14]. We must now consider the judgment of the Allahabad High Court in Sri Nath Agarwals case ( AIR 1981 All 400 ) from which support has been derived in the judgment of the trial Court and the High Court and which the appellant claims is, in fact, in his favour. In the court below the case of the defendant therein was that since he had deposited the entire amount before the first date of hearing he was entitled to the protection of Section 20 (4) of the said Act, but this contention was rejected and the defendant filed a revision application before the High Court. It was argued on his behalf that, admittedly, no summons had been issued and, therefore, he had not been given the opportunity of taking the benefit of Section 20 (4) of the said Act by depositing the requisite monies on or before the first date of hearing. The defendant had, admittedly, deposited the entire amount due from him on 24th October, 1978, which was the first date when the court applied its mind and this should be treated as the date of the hearing of the suit. Prior to this date no other date had been fixed for the hearing of the suit. Notice was taken of the provisions of Section 20 (4) of the said Act and the Explanation thereto defining the expression first hearing. Prior to this date no other date had been fixed for the hearing of the suit. Notice was taken of the provisions of Section 20 (4) of the said Act and the Explanation thereto defining the expression first hearing. The High Court said that if the defendant appears before the court after the registration of the suit and he is informed about the nature of the claim and the date fixed for reply thereto, the defendant must be deemed to have waived the right to the summons served on him. the same legal position would arise when a defendant suo motu appeared before the court before. the actual service of the summons. In such a case, if some date was fixed for filing the written statement or for the hearing of the suit it would be too technical to hold that service of the summons in the ordinary course was still required and that further proceedings in the suit would take place only thereafter. The High Court concluded (in para 10) by holding that when the order was passed on 11th September, 1978 in the presence of counsel for the defendant fixing the date for filing of the written statement and the date for the final hearing, the summons was issued and served on the defendant within the meaning of the Explanation to Section 20 (4) of the said Act on that day. Since 11th September, 1978 was the date when the summons was so served and one months time was allowed for filing the written statement, though it might be the date for the taking of a step by the defendant, the defendant should have complied with the provisions of Section 20 (4) of the said Act by that date. This had not been done. The rent had been deposited only thereafter. In those circumstances, it was held that the defendant could not avail of the advantage of Section 20 (4) and was liable to be rejected. 15]. We are in agreement with the ratio of the judgment in so far as it says that when time is fixed by the court for the filing of the written statement and the hearing, these dates bind the defendant, regardless of the. service of the summons, and compliance with the provisions of Section 20 (4) of the said Act must be judged upon the basis of the dates so fixed. 16]. service of the summons, and compliance with the provisions of Section 20 (4) of the said Act must be judged upon the basis of the dates so fixed. 16]. The date of first hearing in the instant case is not, therefore, 24th February, 1984 when the trial court passed orders on the application of the appellant for time to file a written statement and permission to deposit the full amount of the arrears. The contention of learned counsel for the respondents to this effect must be rejected. Now, 24th February, 1994 was a date earlier than the date of hearing mentioned in the summons, namely, 28th February, 1984. The trial court gave to the appellant time until 24th March, 1984 to file his written statement and deferred the date of final hearing to 12th April, 1984, expressly cancelling the date 28th February, 1984 given in the summons. In our view, whether or not the provisions of Section 20 (4) of the said Act were complied with by the appellant must be judged by the date of hearing so fixed. The full amount of the arrears were deposited on 5th March, 1984; there was, therefore, compliance by the appellant with the provisions of Section 20 (4) of the said Act prior to the earliest date fixed by the court for the defendant to take the first step in the suit. " ( 11 ) HONble Apex Court in the case of Advaita Nand vs. Judge, small cause Court Meerut and others 1995 (26) ALR page 71, took the view that the first date of hearing would be the date on which the court proposes to apply is mind i. e. the date fixed for final hearing of the suit and it cannot be the date fixed for filing the written statement. Relevant paragraphs 6, 8, 9, and 10 of the said judgment are being extracted below: "6. Relevant paragraphs 6, 8, 9, and 10 of the said judgment are being extracted below: "6. We are unable to uphold the said contention, We find that in Siraj Ahmad Siddiqui (supra), this Court took note of the Explanation and has observed that it was not possible to construe the words "first date for any step or proceeding" which were contained in the Explanation, to mean the step of filing written statement, though the date for that purpose may be mentioned in the summons, for the reason that it is permissible under the Code of Civil Procedure for the defendant to file a written statement even thereafter, but prior to the first hearing when the Court takes up the case. It cannot therefore, be said that the Explanation to Section 20 (4) was not given due due consideration by this Court in Siraj Ahmad Siddiqui (supra ). The said decision shows that even after the insertion of the Explanation, the expression "first hearing of the suit" in Section 20 (4) means 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. "8. Applying the law laid down in Siraj Ahmad Siddiqui (supra), it must be held that the first date of hearing of the suit was July 24,1990 which was the date for final hearing fixed on March 28, 1990 and the Courts below have erred in proceeding on the basis that the date of first hearing was April 27, 1990. Since the arrears of rent were deposited on May 2, 1990 before July 24, 1990, the date of first hearing, the appellant was entitled to avail the protection of Section 20 (4) of the Act. 9. The High Court has placed reliance on the decision of this Court in Sri Nath Agrawal v. Sri Nath, 1983 (2) ARC, 422. On the view that the said decision has been affirmed by this Court. In Sri Nath Agrawal (supra), the defendant was allowed one months further time for filing written statement and the amount of rent was deposited after the expiry of the time allowed for filing the written statement and it was held that the defendant could not avail the benefit of Section 20 (4 ). In Sri Nath Agrawal (supra), the defendant was allowed one months further time for filing written statement and the amount of rent was deposited after the expiry of the time allowed for filing the written statement and it was held that the defendant could not avail the benefit of Section 20 (4 ). In taking this view the High Court has not correctly appreciated the decision of this Court. After referring to the judgment in Sri Nath Agarwal (supra), this court has observed. "we are in agreement with the ratio of the judgment insofar as it says that when time is fixed by the Court for the filing of the written statement and the hearing, these dates bind the defendant, regardless of the service of the summons, and compliance with the provisions of section 29 (4) of the said act must be judged upon the basis of the date so fixed". 10. The aforesaid observations would show that this Court has agreed with the ratio of the judgment in Sri Nath Agarwal (supra)only to the extent that when time is fixed by the court for the filing of the written statement and the hearing, these dates bind the defendant, regardless of the service of the summons and that the compliance with the provisions of Section 20 (4) of the Act must be judged upon the basis of the dates so fixed. The said observations cannot be construed to meant that the Court has approved the said decision insofar it holds that compliance with the provisions of Section 20 (4) of the Act was required to be made within the period of one month allowed by the Court for the filing of the written statement. " ( 12 ) HONble Apex Court in the case of Sudarshan Devi vs. Sushila Devi 1999 (37) ALR page 496, has taken the word "first hearing" would mean the date proposed for hearing, and the date proposed for applying courts mind to determine the points in controversy and not the date for filing written statement. Relevant paragraphs 27, 30, 31 and 32 of the said judgment are being extracted below: "27. Relevant paragraphs 27, 30, 31 and 32 of the said judgment are being extracted below: "27. Thus both in Siraj Ahmad Siddiqui and Advaita Nand this Court construed Section 20 (4) and the Explanation to say that the date of first hearing of the suit would not be the date fixed for filing the written statement but would be the date proposed for the hearing i. e. the date proposed for applying the Courts mind to determine the points in controversy and to frame issues, if necessary. These decisions are binding on us. Point 1 is decided accordingly. 30. The position after Siraj Ahmad Siddiqui (1993 AIR SCW 3273 : AIR 1993 SC 2525 : 1993 All LJ 1250) and Advaita Nand ( 1995 (3) SCC 407 ) is as follows. This Court held in those cases that the date fixed for filing the written statement was not the due date and that it was the fresh date proposed for first hearing of the suit that would be the due date. It was observed, that the crucial date even after the Explanation was the date on which-"the Court proposes to apply its mind to determine the points in controversy between the parties to this suit and to frame issue if necessary. " ( 13 ) IN our view, the use of the word "proposing to apply its mind" and the word "for" final hearing used in Siraj Ahmad Siddiquis case and in Advaita Anands case are significant. In fact, though S. 20 (4) uses the word "at", the Explanation uses the word for. Therefore, we cannot accept the contention of the learned counsel for the tenant-appellants that the due date is the actual date when the final hearing takes place. The due date is the date fixed in the summons for final hearing as explained above in Point 1. 31. In the present case before us, the case being one tried by the Small Cause Court, the summons initially stated that the date for first hearing i. e. the date fixed for final hearing would be 22-2-90. All the three courts below, therefore, held that the crucial date was 22-2-90 and there was clear default by 22-2-90. But, in our opinion, 22-2-90 would not be the due date. All the three courts below, therefore, held that the crucial date was 22-2-90 and there was clear default by 22-2-90. But, in our opinion, 22-2-90 would not be the due date. The summons were served in this case by the method of substituted service and it was common ground that the summons were not accompanied by the plaint. The tenant therefore filed an IA seeking a copy of the plaint. That application was allowed and a fresh date for filing written statement and a fresh date for first hearing were given. The fresh date for final hearing was 12-4-90. But the arrears were not deposited even by that date. 32. It is also true that on 12-4-90, the Presiding Officer was on training but that, in our view, is not relevant in as much as there is no difficulty in depositing the rents etc. in the manner prescribed. " ( 14 ) HONble Apex Court in the case of Ashok Kumar and others vs. Rishi Ram and others 2004 (48) ALR page 401, again reiterated the same proposition and took the view that date of first hearing of the suit is the date when court proposes to apply its mind and not the date when it actually applies its mind. The first hearing of suit would not change on every adjournment of sit for final disposal. Relevant paragraph 11 of the said judgment are being extracted below: "11. Now adverting to the facts of the case on hand it has been noticed above that the suit was posted on 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. 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. 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. " ( 15 ) IN the present case entire emphasis from the side of the revisionist has been on the question as to what would be the first date of hearing and as per learned counsel for the revisionist, first date of hearing would be 28. 07. 2006 and by the said date entire amount as mentioned under Section 20 (4) of U. P. Act No. XIII of 1972 has been deposited as such decree of eviction could not have been passed. Judge Small Causes Court has recorded 24. 02. 2006 as the first date of hearing. In the present case accepting the date suggested by revisionist without going into the question as to what would be first date of hearing that first date of hearing is 28. 07. 2006, question is as to whether provisions of Section 20 (4) of U. P. Act No. XIII of 1972 has been complied with or not ? In the present case accepting the date suggested by revisionist without going into the question as to what would be first date of hearing that first date of hearing is 28. 07. 2006, question is as to whether provisions of Section 20 (4) of U. P. Act No. XIII of 1972 has been complied with or not ? sub-Section 4 of Section 20 U. P. Act No. XIII of 1972 enjoins upon the tenant to save himself from recovery and eviction if on the first date of hearing 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 together with interest thereon at the rate of nine percent per annum and the landlords costs of the suit in respect thereof, after deducting thereform 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. Thus, on the first date of hearing entire amount of rent and damages for use and occupation of the building due from him together with interest and the costs of the suit has to be deposited for preventing the court to pass decree of eviction and deposit has to be unconditional one. ( 16 ) IN the present case already finding of fact has been arrived at that deposit made after 16. 04. 2004 were not at all valid deposits under Section 30 and coupled with this as per the own case of Revisionist, as amount in question had not been withdrawn by landlord in Misc. Case No. 31 of 2006, said amount was withdrawn on the strength of order dated 27. 05. 2006. Accepting the first date of hearing as suggested by Revisionist i. e. 28. 07. 2006, it is to be seen as to whether entire amount provided for had been deposited unconditionally. Finding of fact has been returned accepting first date of hearing as given by revisionists themselves that entire amount as envisaged had not at all been deposited as accepted by revisionist himself. Rent was demanded w. e. f. May, 2004 at the rate of Rs. 1000/- per month, upto 31st August, 2005 and on the first date of hearing 28. 07. 2006. Rent was demanded w. e. f. May, 2004 at the rate of Rs. 1000/- per month, upto 31st August, 2005 and on the first date of hearing 28. 07. 2006. as suggested by Revisionist only 21,115/-, was paid which by no stretch of imagination can be accepted as only amount due as much more rent was due apart from amount liable to be paid under other head. Balance rent has been sought to be paid in August, 2006. Thus it is admitted case that amount which has been deposited on the first date of hearing was short and coupled with this in the present case benefit of Section 20 (4) of U. P. Act No. XIII of 1972 by no stretch of imagination can be extended for another simple reason that deposit at the first date of hearing has to be unconditional and here qua the amount in question which has been deposited for withdrawal of the same application was moved and same was opposed that said amount be withdrawn after decision of suit. Thus, in the present case benefit of Section 20 (4) was clearly not extendable and JSC Court has considered all these aspect of the matter in its correct perspective and all these aspect of the matter has not all been seriously disputed in Revision that said finding are perverse or unreasonable and not at all in accordance with law. ( 17 ) CONSEQUENTLY, present Civil Revision lacks substance and same is dismissed. Revisionist is accorded six months time to vacate the premises in question and hand over its peaceful vacant possession to the respondent-landlady, subject to the condition that within one month from today affidavit shall be filed by the revisionist before the Judge Small Cause Court that premises in question will be vacated on or before expiry of the period as aforesaid. In the event of affidavit not being filed within one month from today, the interim protection shall cease to operate, and landlady would be at liberty to proceed accordingly, and interim protection of this Court would not come to rescue of revisionist. .