JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Kshitij Shailendra, learned counsel for the petitioner and Sri A.K. Gupta, learned counsel for the respondents. 2. The writ petition is directed against judgment and order dated 23.8.2002 passed by Small Cause Court, Chandausi District Moradabad in SCC Suit No. 3 of 1994 and judgment and order dated 5.11.2004 passed by Revisional Court i.e. Additional District Judge, Chandausi, District Moradabad dismissing S.C.C. Revision No. 16 of 2002. 3. The petitioners are tenant and disputed premises is a shop situated at Telgali Bazar Pasratta, Chandausi, District Moradabad. The respondent Ashwani Kumar is the owner/landlord of disputed shop. The landlord served a notice dated 22.11.1993 upon tenant alleging that rent is due since 1.1.1993 and therefore, demanding arrears of rent and also terminated his tenancy. Thereafter another notice dated 27.12.1993 was given stating that there was typographical error about the date in rent due and in fact instead of 1.1.1993, it was due from 1.1.1991. 4. The petitioner claimed to have sent rent due to the landlord commencing from 1.1.1993 and onwards by money order remitting a sum of Rs. 349/- but the same was returned with endorsement “refusal” and thereafter he deposited the rent under Section 30(1) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as “Act, 1972”) in the Court of Munsif, Chandausi. 5. The landlord, however, filed SCC suit No. 3 of 1994 claiming rent @ Rs. 25/- per month excluding water tax and house tax and sought a decree for ejectment of tenant as well as recovery of rent/damage/mesne profits. The suit was registered on 8.2.1994. The summons were issued to the tenant fixing 25.3.1994, the date for filing written statement and issues. On 25.3.1994, Advocates were on strike and case was adjourned to 15.4.1994 when plaintiff was present but service of summons was not complete hence case was adjourned to 6.5.1994. Again, due to strike of Advocate, it was adjourned to 12.5.1994. The Presiding Officer being out of station on 12.5.1994, the case was adjourned for 28.5.1994 for orders and in the meantime plaintiff was directed to take steps within seven days. Again the matter was taken up on 27.5.1994 when registered letter (summons) was received back and Court fixed 15.7.1994 for orders. The Presiding Officer being out of station on 12.5.1994, the case was adjourned for 28.5.1994 for orders and in the meantime plaintiff was directed to take steps within seven days. Again the matter was taken up on 27.5.1994 when registered letter (summons) was received back and Court fixed 15.7.1994 for orders. On 15.7.1994, the Court observed that none had appeared on behalf of tenant though summons were issued by ordinary and registered post both. The service was deemed sufficient and Court directed to proceed ex parte fixing 9.9.1994 for evidence. 6. On 9.9.1994 tenant appeared and filed an application alongwith affidavit for recall of order dated 15.7.1994 to proceed ex parte whereupon the Court fixed 2.12.1994 for hearing and in the meantime petitioner was permitted to file objections. On 3rd February, 1995, order to proceed ex parte passed on 15.7.1994 was recalled on payment of Rs. 20/- and the Court fixed 3.3.1995 for hearing. It also permitted written statement to be filed before the date fixed. On 3.3.1995, there was a holiday and the case was taken up on 4.3.1995 when counsel were on strike and case was fixed for 12.5.1995 for issues. On 12.5.1995 both the sides were present and an application was filed by plaintiff for striking off defence of defendant-tenant. The application was directed to be placed before Presiding Officer on the date fixed and 20.7.1995 was fixed for issues. On 20.7.1995 parties appeared, cost was paid by the tenant and the Court adjourned the case to 24.8.1995 for evidence giving 15 days’ time to defendant-tenant to file written statement. It is this date i.e. 24.8.1995 when tenant paid entire dues as contemplated in Section 20(4) of Act, 1972. 7. The Trial Court decreed the suit holding that tenant failed to pay dues as contemplated in Section 20(4) of Act, 1972 on the first date of hearing and therefore, no benefit is extendable to him against decree of eviction. Consequently, having recorded its findings about default on the part of tenant in payment of rent and existence of ground for ejectment under Section 20(2)(a) of Act, 1972, it decreed the suit vide judgment dated 23.8.2002. The said judgment has been confirmed by the Revisional Court by rejecting tenant’s S.C.C. Revision No. 16 of 2002 vide judgment dated 5.11.2004. These two judgments have been assailed in this writ petition. 8. The said judgment has been confirmed by the Revisional Court by rejecting tenant’s S.C.C. Revision No. 16 of 2002 vide judgment dated 5.11.2004. These two judgments have been assailed in this writ petition. 8. Sri Kshitij Shailendra, learned counsel for the petitioner contended that Courts below have erred in law in considering date of first hearing much anterior to 24.8.1995 and therefore they have erred in exercise of their jurisdiction by declining benefit under Section 20(4) of Act, 1972 to the petitioner tenants. 9. The sole question up for considering before this Court is, what would be the date of first hearing in the present case and whether Courts below have rightly rejected petitioner’s claim that first date of hearing in the present case was not 24.8.1995 but much earlier. 10. He submitted that consistently either Presiding Officer was on leave or Advocates were on strike and the case was consistently adjourned giving time to file written statement and therefore by no stretch of imagination it can be said that 25.8.1995 was not the first date of hearing when admittedly the tenant deposited the entire dues so as to satisfy requirement of Section 20(4) of the Act, 1972. He sought to place reliance on Apex Court’s decision in Ashok Kumar and others v. Rishi Ram and others, AIR 2002 SC 2520 : 2002 (U.P.) RCC 578, Mohd. Salim alias Salim Uddin v. 4th Additional District Judge, Allahabad and others, 2001 (2) AWC 1468 and Shafiqur Rahman Khan v. The Iind Additional District Judge, Rampur and others, 1982 ARC 729. 11. The expression “first hearing” has been explained in Section 20(4) Explanation (a) and reads as under: “the expression “first hearing” means the first date for any step or proceeding mentioned in the summons served on the defendant.” 12. This expression has been considered by Apex Court in Ved Prakash Wadhwa v. Vishwa Mohan, 1981 ARC 1. It was held that “date of first hearing would not be before a date fixed for preliminary examination of parties and framing of issues”. Similar was the view taken in an earlier judgment also in Advaita Nand v. Judge, Small Cause Court, Meerut, 1995 (3) SCC 407 . 13. It was held that “date of first hearing would not be before a date fixed for preliminary examination of parties and framing of issues”. Similar was the view taken in an earlier judgment also in Advaita Nand v. Judge, Small Cause Court, Meerut, 1995 (3) SCC 407 . 13. A three-Judge Bench of Apex Court also considered this issue in Siraj Ahmad Siddiqui v. Prem Nath Kapoor, 1993 (4) SCC 406 and said as under “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 parties to the suit and to frame issues, if necessary.” (emphasis added) 14. 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.” (emphasis added) 14. Again it was considered in Sudarshan Devi v. Sushila Devi, 1999(8) SCC 31 and held that the date fixed for hearing of the matter is the date of first hearing and not the date fixed for filing of written statement. The Court observed that emphasis in the relevant provision is on the word “hearing”. The Court also relied on its earlier decision in Ved Prakash Wadhwa (supra). 15. The matter again came to be considered in Mam Chand Pal v. Shanti Agarwal (Smt.), 2002 (3) SCC 49 . Therein the suit was filed on 5.12.1988 and summons were issued fixing 19th January, 1989 for filing of written statement and 27th January, 1989 for hearing. The defendant was not served. The order was passed for service of notice on the defendant by publication fixing 3.7.1989 for hearing. By mistake in the publication, the date of hearing was shown as 26.4.1989 instead of 3.7.1989. On 26.4.1989, Presiding Officer was not available having proceeded for training. The case was thereafter adjourned to 11.5.1989 and further gone on adjournment for one or the other reasons on several dates. The Court held that in the present case 26th April, 1989 would not be regarded as “first date of hearing” since on that date the Presiding Officer was not available. In para 7 the Court said, “where the Court itself is not available it could not be treated as the date of first hearing”. 16. In Ashok Kumar and others (supra), the Court noticed distinction between the phraseology in Order XV, Rule 5 C.P.C. and Explanation (a) to sub-section (4) of Section 20 of Act, 1972 and in para 8, said: “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. 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 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 of such dates are mentioned, the last of the dates mentioned. But the said expression, as noticed above, is defined in Clause (1) 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 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-distinction 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.” (emphasis added) 17. In para 12 of the judgment in Ashok Kumar (supra), considering the above observation and also relying on its earlier decisions in Sudershan Devi (supra), Advaita Nand (supra) and Siraj Ahmad Siddiqui (supra), the Court said: “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.” (emphasis added) 18. It also held that once the date of “first hearing” is determined and thereafter the case is adjourned, the date of first hearing of the suit would not change on every adjournment of the suit for final hearing. 19. Thus effective date of first hearing of the suit should be, when the Court proposed to apply its mind. Therefore, it would be the date fixed earliest for framing of issues or for final disposal/hearing and not a date when case is adjourned for reasons attributable to the defendant-tenant. There are certain decisions of this Court also taking a similar view and I need not to burden this judgment giving in detail all such judgments except of making reference of some of those hereto i.e. Mohd. There are certain decisions of this Court also taking a similar view and I need not to burden this judgment giving in detail all such judgments except of making reference of some of those hereto i.e. Mohd. Salim alias Salim Uddin v. 4th Additional District Judge, Allahabad and others, 2001(2) AWC 1468 , Har Prasad v. Ist A.D.J., Etah, 2004 (56) ALR 460, Jai Ram Dass v. IInd Additional District Judge, Jhansi and others, 2004(57) ALR 233, Chaturbhuj Pandey v. VI A.D.J., Kanpur and others, 2005 (60) ALR 697, Hira Lal and others v. Ram Das, 2006(7) ADJ 521 and Saadat Ali v. J.S.C.C., Moradabad and others, 2006 (2) ARC 208. 20. In this case, I find myself unable to agree learned counsel for the petitioner to treat 24.8.1995 as date of first hearing of the suit so as to attract Section 20(4) of Act, 1972, inasmuch as, earlier thereto there are certain dates which can be construed to have been fixed by the Court for applying its mind to the contention in the pleadings of the parties to the suit and to the documents filed by them for the purpose of framing issues to be decided in the suit. 21. In Ashok Kumar (supra) the Court has stressed on the fact that first date would be such when the Court proposes to apply its mind to identify controversy in the suit and that stage arises after defendant is afforded an opportunity to file written statement. In the present case, the first such date was fixed as 25.3.1994 for filing written statement and issues. Since this date is common to both the aspect i.e. filing of written statement and issues and service of summon was not found sufficient on the defendant even till 28.5.1994 and plaintiff was directed to take steps, it cannot be said that first date of hearing can be earlier to 28.5.1994. The Court deemed service sufficient and directed to proceed ex parte fixing 9.9.1994 for evidence. Here it could have been the first date of hearing of suit provided the said order would have continued, but, the order to proceed ex parte having been recalled on 3.2.1995, in my view, there cannot be any such date for first hearing till 3.2.1995. Then we come to next date i.e. 3.3.1995 fixed for hearing after giving opportunity to the petitioner-defendants to file written statement before 3.3.1995. Then we come to next date i.e. 3.3.1995 fixed for hearing after giving opportunity to the petitioner-defendants to file written statement before 3.3.1995. 3rd March, 1995 was a holiday and the case was taken up on 4th March, 1995 when counsels were on strike and hence the case was adjourned to 12th May, 1995 fixed for issues. There is no reason as to why 12th May, 1995 should not be treated or held to be the date of first hearing of suit as defined in Explanation (a) to Section 20(4) of Act, 1972, as interpreted by the Courts, as discussed above. 22. It may be a different thing that even by that date the petitioners have not filed written statement but it is not the factum of actual filing of written statement but the date fixed for application of mind giving opportunity to the tenant to file written statement which comes within the purview of definition of expression “first hearing” in the statute. Therefore, the Court cannot be guided by actual date when written statement was filed by tenant. The petitioners having failed to make payment, as contemplated in Section 20(4) of Act, 1972 by the aforesaid date i.e. 12.5.1995, in my view, the Courts below have not erred in disentitling the petitioners benefit under Section 20(4) of Act, 1972 and instead decree the suit for ejectment. 23. In view of the above, I find no justification or manifest error in the impugned judgments warranting interference in exercise of jurisdiction under Articles 226/227 of the Constitution of India. 24. The writ petition, therefore, lacks merit. Dismissed. 25. Interim order, if any, stands vacated. ——————