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2016 DIGILAW 2311 (ALL)

Malti Rani Atal v. Vith Additional District Judge

2016-07-05

DEVENDRA KUMAR UPADHYAYA

body2016
JUDGMENT Devendra Kumar Upadhyaya,J. This petition by the landlord seeks to challenge the judgment and order dated 29.05.1989, passed by VIth Additional District Judge, Lucknow whereby revision preferred under Section 25 of Small Cause Courts Act, against the order of learned trial court dated 15.12.1986 decreeing the suit for ejectment and arrears of rent has been allowed and the matter has been remanded to the learned trial court for redetermining 'the first date of hearing'. 2. Though ordinarily an order of remand need not be interfered with, however facts and circumstances of this case are such that the Court is persuaded to consider the plea raised by learned counsel for the petitioner against the impugned order of remand. 3. The facts of the case which are necessary for proper adjudication of the issue involved herein are that a suit by one Laxmi Devi, who is the mother-in-law of the petitioner was filed against late Panna Lal Agarwal, who is represented by his heirs in the present petition, in the court of Judge, Small Causes for a relief of decree of ejectment in respect of tenanted portion of house No.143/49, Bagh Gunge Nawab, Aminabad, Lucknow and for recovery of an amount of Rs.2966.70 together with pendente lite and damages at the rate of Rs.82.41 per month. 4. The said suit was instituted on 10.02.1983. The summons were issued by the trial court fixing 05.05.1983 for hearing. It was indicated in the summons that the plaint is attached. The summons are said to have been served on the defendant on 15.04.1983. On the date fixed i.e. 05.05.1983, Vakalatnama was filed on behalf of late Panna Lal, however, the Presiding Officer was on leave and thus the next date was fixed on 06.05.1983. On that date, the case was again adjourned for 19.05.1983. The defendant in the suit late Panna Lal filed an application under Section 20(4) of U.P. Act No. 13 of 1972 for deposit of rent. On 19.05.1983 itself another application was filed by the defendant seeking two months' time to file written statement. The written statement was filed on 07.11.1984. The learned trial court decreed the suit with the finding that the defendant did not appear and adduce the oral evidence. Further observation has been made that there was no dispute between the parties that the first date of hearing was 05.05.1983 and the rent was deposited on 19.05.1983. The written statement was filed on 07.11.1984. The learned trial court decreed the suit with the finding that the defendant did not appear and adduce the oral evidence. Further observation has been made that there was no dispute between the parties that the first date of hearing was 05.05.1983 and the rent was deposited on 19.05.1983. The learned trial court has also given finding that the rent could have been deposited in the court of Link Officer. On the contention of the defendant that the plaint was not annexed with the summons as such, the date of hearing mentioned therein i.e. 05.05.1983 could not be treated as first date of hearing, the learned trial court has observed that defendant did not make endorsement on the summons about no copy of the plaint having been attached with the summons or the summons having not been received by him. It has also been observed by the learned trial court that in the written statement also this plea of non-receipt of plaint has not been raised. The argument made by the defendant has been rejected as an afterthought. 5. Against the judgment of the learned trial court dated 15.12.1986, the S.C.C Revision was filed before the revisional court. During pendency of the revision petition, an application was filed by the defendant on 17.11.1988 seeking amendment in the written statement to incorporate the fact that no copy of the plaint was served along with the summons. This plea of amendment was contested by the petitioner, however, the revisional court has allowed the amendment. The revisional court ultimately allowed the revision petition setting-aside the judgment and order dated 15.12.1986 passed by the learned trial court and the matter has been remanded with a direction to the trial court to return the finding as to 'the date of first hearing' in light of the observations made in the judgment. It is also worthwhile to notice that the revisional court has also stated that there was no requirement of interfering in the questions of fact and the only point for consideration was as to whether the defendant is entitled to the benefit of Section 20 (4) of U.P. Act No. 13 of 1972. 6. The order dated 29.05.1989 passed by the revisional court is under challenge. 6. The order dated 29.05.1989 passed by the revisional court is under challenge. An amendment seeking challenge to the order dated 14.12.1988 passed by the revisional court has also been allowed by this Court and now, apart from challenging the final judgment and order passed by the revisional court dated 29.05.1989, the order dated 14.12.1988 is also under challenge. 7. Another fact which is noticeable in this case is that a supplementary affidavit has been filed by the petitioner bringing certain subsequent developments on record. These developments have material bearing on the issue involved in this case. Through, the supplementary affidavit, it has been brought on record that late Panna Lal owned a huge three storeyed house in Sundar Bagh, Lucknow. Son of late Panna Lal, Sri Vishnu Narain Agarwal has also acquired a residential house bearing No. C-103 Niral Nagar Lucknow. Similarly, Sri Shiv Narain Agarwal has also acquired a residential plot in the premises of M/s Roop Chemicals Private Limited. It has also been brought on record that Sri Ram Narain Agarwal has also acquired a residential house in the name of his wife Smt. Padmawati Agarwal, namely, House No.91/15, Jadunath Sanyal, Lucknow. Through the supplementary affidavit, it has also been brought on record that Smt. Mira Agarwal has acquired a residential plot. 8. The question which falls for consideration in this case is as to whether the defendant in the suit and his legal heirs and representatives are entitled to the benefit of Section 20 (4) of U.P.Act No. 13 of 1972. Another question which falls for consideration is as to whether on the facts and circumstances of the case there was any occasion for the revisional court to have remanded the matter to the learned trial court for determination of 'the first date of hearing'. 9. As regard the date of first hearing, there is enough evidence on record which suggests that the revisional court's direction containing terms of remand is futile. 10. It has come in the evidence of Ram Narain Agarwal (D.W-1), who is the son of late Panna Lal that no endorsement was made on the summons regarding copy of the plaint having been received. The learned trial court has recorded a finding that after closure of evidence and arguments, the plea was raised in respect of the summons not accompanied by the plaint which appears to be an afterthought. The learned trial court has recorded a finding that after closure of evidence and arguments, the plea was raised in respect of the summons not accompanied by the plaint which appears to be an afterthought. It is also noticeable that the defendant had moved an application on 19.05.1983 seeking two months' time to file written statement, however, no prayer for demanding copy of the plaint was made neither any assertion was made that plaint was not received with the summons. While filing the written statement, it has been admitted by the defendant that on 05.05.1983 and again on 06.05.1983, the rent could not be deposited as the Presiding Officer was on leave and the tender was not accepted by the Reader of the court. 11. In the case of Srinath Agarwal vs. Srinath, reported in (1983) 2 ARC 422, the defendant did not ever protested or requested the court for obtaining a copy of plaint and he also did not complain that there was another date fixed in the suit and that he could not deposit the amount on that date. It was thus held by the court that the defendant could not be allowed to take shelter of a plea taken at a late stage that summons were not served on him. The Hon'ble Supreme Court in the case of Sudershan Devi vs. Sushila Devi, reported in (1999) 8 SCC 31 , has held that the date of first hearing of the suit is not the date of first date of filing the written statement but it would be the date for hearing i.e. the date proposed for application of mind by the court for determination of the issue in controversy. 12. The issue relating to the expression ''first hearing' has elaborately been dealt with by a Full Bench of this Court in the case of Sia Ram vs. District Judge Kheri and Others reported in 1984 (1) Allahabad Rent Cases 410. The said Full Bench considered the conflicting views expressed by two Division Benches of this Court in the cases of Gaya Prasad vs. Pramod Kumar Shukla, reported in 1980 LLJ 56, and Jagannath vs. Ram Chandra Shrivastava, 1982 ALJ 1324. The said Full Bench considered the conflicting views expressed by two Division Benches of this Court in the cases of Gaya Prasad vs. Pramod Kumar Shukla, reported in 1980 LLJ 56, and Jagannath vs. Ram Chandra Shrivastava, 1982 ALJ 1324. In the case of Gaya Prasad (supra), it was held that the date of ''first hearing' would include a date of hearing changed by the court either suo motu or on the application of one of the parties, whereas in another case i.e. in the case of Jagannath (supra), it was held that date of ''first hearing' would be only the date mentioned in the summons and not an adjourned date. 13. The Full Bench in the case of Sia Ram (supra) has held that the issue by the Division Bench in the case of Jagannath (supra) has correctly been decided whereas the view expressed in the case of Gaya Prasad (supra) cannot be accepted. The Full Bench has also referred to yet another judgement passed by learned single Judge of this Court in the case of Smt.Vimla Tripathi vs. The Vth Additional District Judge, decided on 08.08.1983, Writ Petition No. 3752 of 10983 wherein learned Single Judge has expressed the view that even where the court on the date mentioned in the summon adjourns the case to some other date without transacting any business or without applying its mind to the lis, the date of first hearing for the purposes of Section 20 (4) would still be the date mentioned in the summons. The Full Bench in the said case has also drawn distinction between the provisions contained in Order XV, Rule 5, CPC and Section 20 (4) of U.P. Act No.13 of 1972. It has also been observed by the Full Bench that the provision of Order XV Rule 5, CPC is of a penal nature and the power of the Court to strike off the defence is merely discretionary, that is to say, the court is not bound to do so. In respect of the provision of Section 20 (4) of U.P. Act No.13 of 1972, it has been observed that the said provision is by way of locus paenitentiae for a tenant who is defaulter and has thus, forfeited the protection of the rent control law. In respect of the provision of Section 20 (4) of U.P. Act No.13 of 1972, it has been observed that the said provision is by way of locus paenitentiae for a tenant who is defaulter and has thus, forfeited the protection of the rent control law. It has also been observed that Section 20 (4) of U.P. Act No.13 of 1972 gives such defaulter an opportunity to redeem his position which has the effect of depriving the landlord of the right that has accrued to him as a result of the earlier default of the tenant. Para 18 of the said judgement is quoted below: - "18. It may also be mentioned in this connection that the general principles underlying Order XV, Rule 5, Civil Procedure Code, and to Section 20 (4) of the Act 13 of 1972 are different. The former provision is of a penal nature and the power of the Court to strike off the defence is merely discretionary and the court not bound to do so. On the other hand, the provisions of Section 20 (4) are by way of provision locus paenitentiae for a tenant who has been a defaulter and has, thus, forfeited the protection of the rent control law. It gives him a further opportunity to redeem his position, which has the effect of depriving the landlord of the right that has accrued to him as a result of the earlier default of the tenant. The Legislature cannot, therefore, be said to have acted unreasonably in requiring the tenant to comply with the provisions of Section 20 (4) more strictly than with the provisions of Order XV, Rule 5, Civil Procedure Code. This distinction has been noted in various decisions such as Rafiq Ahmad vs. IIIrd Addiitonal District Judge, (spura), Bharagu Dutta Singh v. Shyam Kishre, 1980 Lucknow Law Journal 62, and several other decisions." 14. In the instant case, at the initial stage, no plea was taken by the defendant that copy of the plaint was not received by him at the time when summons were served. As observed above, on 19.05.1983 itself when the application was filed by the defendant seeking two months' time to file written statement, no prayer was made demanding the copy of plaint, neither was any complaint lodged that he had not received the copy of plaint along with summons. 15. As observed above, on 19.05.1983 itself when the application was filed by the defendant seeking two months' time to file written statement, no prayer was made demanding the copy of plaint, neither was any complaint lodged that he had not received the copy of plaint along with summons. 15. Sri Agendra Sinha, learned counsel appearing for the respondent No.3 has however, submitted that deposit of rent on 19.05.1983 ought to be treated as one in due compliance of the provision of Section 20 (4) of U.P. Act No.13 of 1972 for the reason that provisions of U.P. Act No.13 of 1972 are beneficial in nature and hence, the Court should take a constructive approach. He has further stated that on 05.05.1983 the Presiding Officer was on leave and hence non-compliance of Section 20 (4) of U.P. Act No.13 of 1972 on the date of hearing should not be treated fatal if the same was occasioned for the reasons which are justifiable. 16. Submissions made by learned counsel for respondent No.3 do not have any force in view of the law laid down by the Full Bench of this Court in the case of Sia Ram (supra). 17. Considering the submissions made by learned counsel for the respondent No.3 that process server had not made any endorsement on the back of the summons about delivery of the copy of the plaint along with summons, I may only observe that the said submission does not carry any force for the reason that if the summons delivered to the defendant did not accompany copy of the plaint, endorsement to the said effect, in normal circumstances and ordinary course of things, could have been made by the defendant himself. This plea does not impress the Court also for the reason that neither at the time of filing of the written statement nor at the time of filing of an application seeking two months' time to file written statement, was it averred or asserted by the defendant that he had not received copy of the plaint along with summons. 18. The aforesaid submission made by learned counsel for the respondent No.3 does not appeal to the Court which is hereby rejected. 19. 18. The aforesaid submission made by learned counsel for the respondent No.3 does not appeal to the Court which is hereby rejected. 19. For the reasons disclosed above, I am of the considered opinion that the revisional court ought not have interfered with the finding recorded by the learned trial court regarding 'the first date of hearing'. 20. There is yet another plea which goes in favour of the petitioner which is based on the proviso appended to Section 20 (4) of U.P. Act No.13 of 1972 which provides that in any suit for eviction, if at the first date of hearing of the suit the tenant unconditionally pays the entire amount of rent and damages which is due against him the court may in lieu of passing a decree for eviction, pass an order relieving the tenant against his liability for eviction. However, the proviso appended to sub-section (4) of Section 20 of U.P. Act No.13 of 1972 does not apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state another premises or has got vacated any residential building in the same city, municipality, notified area or town area. However, the proviso appended to sub-section (4) of Section 20 of U.P. Act No.13 of 1972 does not apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state another premises or has got vacated any residential building in the same city, municipality, notified area or town area. Sub-section (4) of Section 20 of U.P. Act No.13 of 1972 is quoted below: - "(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 use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's 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 purpose 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 counsel's fee taxable for a contested suit]. 21. In the supplementary affidavit, the petitioner has asserted that late Panna Lal, defendant of the suit exclusively owned a house in Sunder Bagh, Lucknow. It has also been brought on record that various family members including sons and daughter-in-law have acquired various residential buildings and plots in vacant state in the city of Lucknow itself. 21. In the supplementary affidavit, the petitioner has asserted that late Panna Lal, defendant of the suit exclusively owned a house in Sunder Bagh, Lucknow. It has also been brought on record that various family members including sons and daughter-in-law have acquired various residential buildings and plots in vacant state in the city of Lucknow itself. Thus, in any case since the defendant and his family members have acquired premises and plots in vacant state in the city of Lucknow itself, the provision of Section 20 (4) of U.P. Act No.13 of 1972 in the present case will have no application in any circumstances. In this view also, since the defendant or his legal heirs and representatives are not entitled to the benefit of Section 20 (4) of U.P. Act No.13 of 1972, as such the remand order passed by the revisional court for determination of 'the first date of hearing' would result in nothing but in an exercise in futility. 22. For the reasons disclosed and discussions made above, this petition deserves to be allowed. 23. Accordingly, the petition is allowed and the judgment and order dated 29.05.1989 passed by VIth Additional District Judge, Lucknow in SCC Revision No.29 of 1987 and the order dated 14.12.1988 passed by the learned revisional court allowing the amendment application are hereby quashed. 24. There will be no order as to costs.