Shashi Sinha v. Sangam Educational Society, Allahabad
2024-08-21
SARAL SRIVASTAVA
body2024
DigiLaw.ai
JUDGMENT : Saral Srivastava, J. 1. Heard Sri Pankaj Agarwal, learned counsel for the petitioners, and Sri Atul Dayal, learned Senior Advocate assisted by Ms. Pooja Agarwal, learned counsel for the respondents and perused the records. 2. The petitioners, who are tenants, through this petition under Article 227 of the Constitution of India have assailed the judgment and decree dated 22.11.2016 passed by the Additional Civil Judge (Senior Division), Court No. 13, Allahabad by which the learned Judge has decreed the S.C.C. Suit No. 64 of 2010 instituted by respondent no.1- Sangam Educational Society and the judgment and order dated 10.1.2019 passed by the Additional District and Sessions Judge, (F.T.C.), Court No. 20, Allahabad in S.C.C. Revision No. 14 of 2016. 3. The facts in brief are that respondent no.1-Sangam Educational Society instituted Suit No. 64 of 2010 praying for a decree of eviction of the petitioners from the premises i.e. portion of House No.2 (old), 11 (New), Malviya Road, Allahabad (hereinafter referred to as 'the suit property'). The case in the plaint was that respondent no.1 purchased the suit property by a registered sale deed dated 7.8.2001. 4. It is stated that respondent no.1 is a Society registered under the Society Registration Act, 1860, and the suit property is held by it for its use and occupation. It is further stated that the suit property is exempted from the provisions of the Uttar Pradesh Act No. 13 of 1972 (hereinafter referred to as 'the Act'). It is further stated that one K.N. Sinha was the tenant of the suit property, and after his death, the petitioners inherited the tenancy. Respondent no.1 by notice dated 21.6.2010, which was sent on 30.6.2010, demanded arrears of rent from the petitioners and terminated the tenancy of the petitioners. 5. In the alternative, the case set up in the plaint was that if the Court concludes that the provisions of Uttar Pradesh Act No. 13 of 1972 are applicable, the petitioners are liable to be evicted in terms of Section 20(2)(a) of the Act, inasmuch on the date of service of notice dated 21.6.2010, they were in arrears of rent for more than four months and they failed to pay such rent to respondent no.1 within one month from the date of service of notice on them. It is further stated that respondent no.1 is entitled to recover Rs.
It is further stated that respondent no.1 is entitled to recover Rs. 2575.00/- as arrears of rent for the period of 7.8.2001 to 31.7.2010 from the petitioners, and also entitled to damages at Rs. 87.50 for the period of 1.8.2010 to 15.11.2010, and further damages till the actual date of delivery of possession at the rate of Rs. 25/- per month. 6. The aforesaid suit was contested by the petitioners by filing a written statement contending, inter alia, that the provisions of Uttar Pradesh Act No. 13 of 1972 apply to the suit property. 7. At this stage, certain dates are relevant to appreciate the controversy at hand. 8. In the present case, the suit has been instituted on 18.11.2010. On 18.11.2010, the Trial Court fixed 20.12.2010 for filing the written statement. On the said date i.e. 20.12.2010, the Trial Court found the service of summons upon the petitioners not sufficient and directed respondent no.1 to take fresh steps for service of notice upon the petitioners fixing 27.1.2011. The Trial Court on 27.1.2011 held that service of notice upon the petitioners was sufficient and fixed 9.2.2011 for filing the written statement. On 9.2.2011, the petitioners did not appear. Accordingly, the Trial Court passed an order to proceed exparte against the petitioners fixing 21.2.2011 for the hearing of the suit. 9. It transpires from the order sheet that on 18.2.2011, the petitioners filed an application 22-Ga seeking leave of the Court to deposit tender, on which the Court passed an order "put on the date fixed". On 16.3.2011, the petitioners filed an application 22-Ga along with affidavit 23-Ga to recall the order dated 9.2.2011 by which the Trial Court directed to proceed exparte against the petitioners. It appears that the petitioners thereafter made the deposit under Section 20(4) of the Act on 22.3.2011. 10. On 18.5.2011, the Trial Court allowed the aforesaid recall application fixing 6.7.2011 for filing the written statement. Thereafter, the Trial Court again on 6.7.2011 granted time to the petitioners to file the written statement. 11. Based on pleadings, the Trial Court framed as many as 7 issues. However, in the context of the present case, issue nos.
10. On 18.5.2011, the Trial Court allowed the aforesaid recall application fixing 6.7.2011 for filing the written statement. Thereafter, the Trial Court again on 6.7.2011 granted time to the petitioners to file the written statement. 11. Based on pleadings, the Trial Court framed as many as 7 issues. However, in the context of the present case, issue nos. 4 and 6 are relevant, which are reproduced hereinbelow : ^^4- D;k çLrqr ekeys esa mrj çns'k 'kgjh Hkou ¼fdjk;s ij nsus\ fdjk;s rFkk csn[kyh dk fofu;eu½ 1972 ds çko/kku ykxw gksrk gS\ 6- D;k çfroknh la[;k 1 o 2 /kkjk 20 ¼4½ mrj çns'k 'kgjh Hkou ¼fdjk;s ij nsus] fdjk;s rFkk csn[kyh dk fofu;eu½ vf/kfu;e 1972 ds çko/kkuksa dk ykHk ikus ds vf/kdkjh gS\** 12. On issue no.4, the Trial Court returned a finding that since admittedly in the instant case, respondent no.1 has not built the suit premises, therefore, the twin conditions to attract Section 2(1)(f) of the Act that the building should have been built and held by respondent no.1 are not present, inasmuch as the suit property was not built by respondent no.1. 13. On issue no.6, the Trial Court returned a finding that since the date of the first hearing was 9.2.2011, which was the date fixed for filing the written statement, and the petitioners did not comply with Section 20(4) of the Act on or before the said date, inasmuch as the money had been deposited by the petitioners on 22.3.2011, therefore, there is no compliance of Section 20(4) of the Act, therefore, the petitioners are not entitled to benefit of Section 20(4) of the Act. Consequently, the Trial Court decreed the suit of respondent No. 1. 14. The petitioners, thereafter, preferred S.C.C. Revision No. 14 of 2016 challenging the judgment and decree dated 22.11.2016 passed by the Trial Court. It is informed by learned counsel for the respondents that respondent no.1 has also filed a cross-objection in the revision challenging the finding of the Trial Court in respect of the applicability of the Act to the suit property. 15. The Revisional Court reversed the finding of the Trial Court on issue no.4 by recording a finding that in Section 2(1)(f) of the Act, the word "and" between the words "built" and "held" shall be read as "or".
15. The Revisional Court reversed the finding of the Trial Court on issue no.4 by recording a finding that in Section 2(1)(f) of the Act, the word "and" between the words "built" and "held" shall be read as "or". It was held that the conditions enumerated in Section 2(1)(f) of the Act are fulfilled in the present case, thus, respondent no.1 is exempted from the Act because of Section 2(1)(f) of the Act. Accordingly, it held that the provisions of the Act do not apply to the suit property. The Revisional Court, however, on issue no.6 about non-compliance of Section 20(4) of the Act affirmed the finding of the Trial Court. 16. Challenging the aforesaid finding, counsel for the petitioners contends that from the perusal of the order of the Revisional Court, it transpires that the Revisional Court has committed a manifest error of law and misinterpreted Section 2(1)(f) of the Act in concluding that the word "and" between the word "built" and "held" in Section 2(1)(f) of the Act may be read as "or". It is contended that to get the benefit of Section 2(1)(f) of the Act, the Society has to fulfill twin conditions enumerated in Section 2(1)(f)) of the Act that it shall build and hold the property. However, in the present case since admittedly respondent no.1 has not built the suit property and the suit property is held by it, therefore, one of the conditions that the building should have been built by the Society is lacking in the present case, therefore, the finding of the Revisional Court on issue no.4 is based upon the misinterpretation of Section 2(1)(f) of the Act and cannot be sustained in law. In this respect, he has placed reliance upon a judgment of this Court in the case of Methodist Church in Southern Asia Vs. District Judge, Badaun 1979 ARC (443). 17. He further contends that the Trial Court as well as the Revisional Court has erred in law in holding that the first date of hearing in the present case was 9.2.2011.
District Judge, Badaun 1979 ARC (443). 17. He further contends that the Trial Court as well as the Revisional Court has erred in law in holding that the first date of hearing in the present case was 9.2.2011. It is contended that the Trial Court passed an order on 9.2.2011 against the petitioners to proceed exparte, which order was set aside by the Trial Court by order dated 18.5.2011, and once the order dated 9.2.2011 was set aside, the Trial Court has erred in law in treating the same to be the first date of hearing. 18. It is contended that once the order to proceed exparte has been recalled, all previous orders have no existence, and in the present case since the petitioners had deposited the money on 22.3.2011, therefore, it has complied with the requirement of Section 20(4) of the Act, inasmuch as on 18.5.2011, the Trial Court fixed 6.7.2011 for filing written statement, which could at the best be the first date of hearing. The finding of the Trial Court on issue no.6 cannot be sustained in law. In this respect, he has placed reliance upon a judgment of this Court in the case of Mam Chand Pal Vs. Smt. Shanti Agarwal 2002 (1) ARC 370. 19. Per contra, Sri Atul Dayal, learned Senior Counsel appearing for the respondents would contend that the Revisional Court has held that while interpreting the statute, the Court has to keep in mind the object for which a provision has been incorporated in the Act. He submits that it is the specific case of respondent no.1- Landlord that the suit property has been purchased by it for its personal use and occupation and this fact has not been denied by the petitioners, therefore, in such view of the fact, the Revisional Court has rightly interpreted the word "and" between the word "built" and "held" in Section 2(1)(f) of the Act as "or". To elaborate on his submissions, he has placed reliance upon a judgment of the Apex Court in the case of Ishwar Singh Bindra and others Vs. State of Uttar Pradesh AIR 1968 SC 1450 . It is submitted that in the present case, the word "and" between the words "built" and "held" is to be read disjunctively to achieve the object of the Act. 20. He further contends that the suit property has been purchased by respondent no.1.
State of Uttar Pradesh AIR 1968 SC 1450 . It is submitted that in the present case, the word "and" between the words "built" and "held" is to be read disjunctively to achieve the object of the Act. 20. He further contends that the suit property has been purchased by respondent no.1. It is contended that respondent no.1 steps into the shoes of the Vendor after purchasing the suit property. Accordingly, it is contended that if the property had been built by the Vendor, it shall be presumed that after the purchase of the property, the same was built by respondent no.1 as respondent no.1 has entered into the shoes of the Vendor. Thus the twin condition that the building should have been built and held by the Society contemplated in Section 2(1)(f) of the Act is complied with, therefore, respondent no.1 is entitled to exemption from applicability of the Act. Thus, the finding of the Revisional Court on issue no.4 is based upon the proper appreciation of fact and law and does not warrant any interference by this Court. 21. He further contends that from the recall application, it is evident that the petitioners had knowledge about the date fixed in the matter and in this regard, he has placed reliance upon paragraphs 3 and 4 of the recall application, wherein it is admitted by the petitioners that the petitioners had received the summons and 27.1.2011 was the date fixed. It is submitted that the non-appearance of the petitioners was deliberate and, therefore, the date of the first hearing shall be treated to be 9.2.2011, therefore, the Revisional Court has rightly held the first date of hearing to be 9.2.2011. He further contends that adjournment of the case would not extend the period for filing the written statement. In this regard, he has placed reliance upon a judgment of the Apex Court in the case of Ashok Kumar and others Vs. Rishi Ram AIR 2002 SC 2520 . 22. I have heard learned counsel for the petitioners and learned counsel for the respondents. 23. The Court has already delineated the facts of the case above, therefore, the Court does not propose to delineate the facts again. Consequently, the Court proceeds to consider the arguments of the counsel for the parties. 24.
Rishi Ram AIR 2002 SC 2520 . 22. I have heard learned counsel for the petitioners and learned counsel for the respondents. 23. The Court has already delineated the facts of the case above, therefore, the Court does not propose to delineate the facts again. Consequently, the Court proceeds to consider the arguments of the counsel for the parties. 24. So far as the submission of counsel for the petitioners about the applicability of the Uttar Pradesh Act No. 13 of 1972 is concerned, it would be appropriate to reproduce Section 2(1)(f) of the Act hereinbelow : "any building built and held by a University or any other statutory corporation or by a society registered under the Societies Registration Act, 1860, or by a co-operative society, company or firm, and intended solely for its own occupation or for the occupation of any of its officers or servants, whether on rent or free of rent, or as a guest house, by whatever name called, for the occupation of persons having dealing with it in the ordinary course of business". 25. A perusal of Section 2(1)(f) of the Act reveals that it prescribes that the first ingredient of Section 2(1)(f) of the Act is that the building should be built and held by the Society or other bodies mentioned in said section or as the case may be. The second ingredient is that its use should be intended solely for its own occupation or for the occupation of its officers and servants, whether on rent or free of rent, or a guest house for the occupation of persons having dealing with any ordinary course of business. 26. The counsel for the petitioners does not dispute the fact that the suit property has been purchased by respondent no.1 solely for its use and occupation. However, according to the petitioner since in the present case, the suit property was not built by respondent no.1, therefore, respondent no.1 is not entitled to the benefit of Section 2(1)(f) of the Act. In this respect, he has placed reliance upon paragraph 5 of the judgment of this Court in the case of Methodist Church (supra), which is reproduced below : "5.
In this respect, he has placed reliance upon paragraph 5 of the judgment of this Court in the case of Methodist Church (supra), which is reproduced below : "5. Section 2(1)(f) of the Act provides as follows: Nothing in this Act shall apply to (f) any building built and held by a society registered under the Societies Registration Act, 1860 (Act No. LXIII of 1860) or by a co-operative society, company or firm, and intended solely for its own occupation or for the occupation of any of its officers or servants, whether on rent or free of rent, or as a guest house, by whatever name called for the occupation of persons having dealings with it in the ordinary course of business. In the instant case in the petition it has not been averred as to whether the building was built by the petitioner society. Before a building can be exempt from the provisions of the Act it is necessary for the petitioner to establish that the building was built by them as well as held by them. In the absence of proof of an essential ingredient that the building was built by the petitioner Section 2 (1) (f) of the Act would not apply in the instant case. In the circumstances the first submission made by the learned counsel lacks substance. This however does not debar the petitioner from proving that the property in dispute is built by his any subsequent proceedings." 27. Though, it is true that this Court in the said case has held that to avail the benefit of Section 2(1)(f) of the Act, the building must be built and held by the Society. However, it would be appropriate to refer to the judgment of the Apex Court in the case of Ishwar Singh Bindra (supra), where the Apex Court after considering the various aspects held that the word "and" may be read as "or". Paragraph 11 of the said judgment is reproduced below: "Now if the, expression "substances" is to be taken to mean something other than "medicine" as has been held in our previous decision it becomes difficult to understand how the word "and" as used in the definition of drug in S. 3(b)(i) between "medicines" and "substances" could have been intended to have been used conjunctively. It would be much more appropriate in the context to read it disjunctively.
It would be much more appropriate in the context to read it disjunctively. In Stroud's Judicial Dictionary, 3rd Ed. it is stated at page 135 that "and" has generally a cumulative sense, requiring the fulfilment of all the conditions that it joins together, and herein it is the antithesis of “or”. Sometimes, however, even in such a connection, it is, by force of a context, read as "or". Similarly in Maxwell on Interpretation of Statutes, 11th Ed., it has been accepted that "to carry out the intention of the legislature it is occasionally found necessary to read the conjunctions “or” and “and” one for the other." 28. Perusal of paragraph 11 of the aforesaid judgment reveals that the Apex Court has quoted with approval the Maxwell on the interpretation of statute 11th Ed., according to which, “to carry out the intention of the legislature, it is occasionally found necessary to read the conjunctions “or” and “and” one for the other. 29. This Court in the case of Raghunath International Ltd. Vs. Union of India and another 2012 SCC OnLine All 4229 interpreted Section 2(b) of the Central Excise Act, 1944 and Rule 3 of the 2002, Rules, wherein this Court delineated the Principles of Statutory Interpretation. Paragraphs 20 and 21 of the judgment are reproduced below : "20. Section 2(b) of the Act, 1944 as was initially enacted and subsequently amended both have been noted above. In Section 2(b) of the Act, 1944 as was enacted, there were only two categories of persons who could be treated as Central Excise Officer namely: (i) any officer of the Central Excise Department, or (ii) any person (including an officer of the State Government) invested by the Board, the powers of Central Excise Officer. Both the aforesaid categories were joined by word "or". Similarly, in Section 2(b) of the Act, 1944 as it exists today, there are three categories which are joined by word "or". Although in the last category which was the second category, "investment" of powers by the Board is contemplated. The word "or" is a disjunctive word. It is well established principle of statutory interpretation that the word "or" is normally disjunctive and the word "and" is normally conjunctive. Both of them can be read as vice versa, but that interpretation is adopted only where the intention of the legislature is manifest. 21.
The word "or" is a disjunctive word. It is well established principle of statutory interpretation that the word "or" is normally disjunctive and the word "and" is normally conjunctive. Both of them can be read as vice versa, but that interpretation is adopted only where the intention of the legislature is manifest. 21. Justice G.P. Singh in the Principles of Statutory Interpretation (Thirteenth Edition) Chapter 7 page 485 has stated as follows: "The word 'or' is normally disjunctive and 'and' is normally conjunctive but at times they are read as vice versa to give effect to the manifest intention of the Legislature as disclosed from the context. As stated by Scrutton, L.J.: 'You do sometimes read “or” as “and” and in a statute. But you do not do it unless you are obliged because “or” does not generally mean “and” and “and” does not generally mean “or”. And as pointed out by Lord Halsbury the reading of 'or' as 'and' is not to be resorted to, 'unless some other part of the same statute or the clear intention of it requires that to be done'. Where provision is clear and unambiguous the word 'or' cannot be read as 'and' by applying the principle of reading down. But if the literal reading of the words produces an unintelligible or absurd result 'and' may be read for 'or' and 'or' for 'and' even though the result of so modifying the words is less favourable to the subject provided that the intention of the Legislature is otherwise quite clear. Conversely if reading of 'and' and 'or' produces grammatical distortion and makes no sense of the portion following 'and', 'or' cannot be read in place of 'and'. The alternatives joined by 'or' need not always be mutually exclusive." 30. The Apex Court in the case of State of Andhra Pradesh Vs. Linde India Limited (2020) 16 SCC 335 also explained the Principles of Statutory Interpretation in paragraphs 17 and 18, which are reproduced hereinbelow : 17. The term “medicine” is not defined in the 1940 Act. It is a trite principle of interpretation that the words of a statute must be construed according to the plain, literal and grammatical meaning of the words.
The term “medicine” is not defined in the 1940 Act. It is a trite principle of interpretation that the words of a statute must be construed according to the plain, literal and grammatical meaning of the words. Justice G P Singh in his seminal work Principles of Statutory Interpretation states: "The words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the statute to suggest the contrary… in the statement of the rule, the epithets 'natural', 'ordinary', 'literal', 'grammatical' and 'popular' are employed almost interchangeably. It is often said that a word, apart from having a natural, ordinary or popular meaning (including other synonyms i.e. literal, grammatical and primary), may have a secondary meaning which is less common e.g technical or scientific meaning. But once it is accepted that natural, ordinary or popular meaning of the word is derived from its context, the distinction drawn between different meanings loses much of its relevance." 18. Similarly, Craies on Statute Law states: "One of the basic principles of interpretation of Statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary to, or inconsistent with, any express intention or declared purpose of the statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity." 31. So the question that arises for consideration is whether in the present case the interpretation made by the Revisional Court that the word “and” between the word “built” and “held” in Section 2(1)(f) of the Act may be read as “or” is correct or not. 32.
So the question that arises for consideration is whether in the present case the interpretation made by the Revisional Court that the word “and” between the word “built” and “held” in Section 2(1)(f) of the Act may be read as “or” is correct or not. 32. In this respect, it would be relevant to note that the legislature has incorporated Section 2(1)(f) of the Act to grant exemption from the provisions of applicability of the Act with respect to the class of bodies enumerated in Section 2(1)(f) of the Act. The other condition that the definition of Section 2(1)(f) of the Act incorporates for non-applicability of the Act is that the building should be intended to be used only for occupation of the Society or as the case may be or for occupation of other purposes enshrined in Section 2(1)(f) of the Act. Now, if the rigid interpretation of the word “and” used between the word “built” and “held”, is done, in the opinion of the Court the object of incorporation of Section 2(1)(f) of the Act granting exemption from operation of the Act to the class of Societies or Co-operative Societies, Company or Firm would get redundant. 33. The matter can be viewed from another angle. The Society after purchasing the building steps into the shoes of the owner and substitutes the actual owner, then can it be said that the building was not constructed by the Society, who had paid the price for purchasing the building which included the cost of construction of the building. In the opinion of the Court, the answer is 'No', since after purchasing the building, Society enters into the shoes of the owner, which implies that the building was also constructed by Society. The judgment of this Court in the case of Methodist Church (supra) relied upon by the counsel for the petitioners does not consider this aspect of the matter and also the judgment of the Apex Court referred above. 34. It is also pertinent to note that a judgment can be said to be perincuriam when it has been delivered by the Court in ignorance of the relevant statutory provisions and or the binding decision of a Court of co-ordinate jurisdiction or that of a higher Court.
34. It is also pertinent to note that a judgment can be said to be perincuriam when it has been delivered by the Court in ignorance of the relevant statutory provisions and or the binding decision of a Court of co-ordinate jurisdiction or that of a higher Court. In this connection the Full Bench of this Court in Rana Pratap Singh v. State of Uttar Pradesh, (1995) 1 All CJ 200 : (1996 All LJ 301) has laid down as under (at p. 308 of All LJ):- "This is what now brings us to what constitute the parameters of the per incuriam rule. As the Supreme Court in Punjab Land and Recreation Corporator Ltd. v. Presiding Officer Labour Court, (1990) 3 SCC 682 explained, "the Latin expression per incuriam means through inadvertance. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a precious decision of this Court". Further "in England a decision is said to be given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords." A similar exposition of the per incuriam rule is to be found in State of U.P v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 , namely, that “incuria” literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’. (Young v. Bristol Aeroplane Co. Ltd.) (1944 1 KB 718) : (1944) 2 All ER 293.” 35. Given the aforesaid fact, this Court is of the view that the petitioners cannot get any help from the judgment of this Court in the case of Methodist Church (supra). Hence, the Revisional Court has rightly held that the Act does not apply to the suit property. 36. Now, coming to the second submission of Sri Agarwal about the finding of the Trial Court on issue no.6 i.e. the compliance of Section 20(4) of the Act. The relevant dates have been delineated above. In the present case, the suit was instituted on 18.11.2010.
36. Now, coming to the second submission of Sri Agarwal about the finding of the Trial Court on issue no.6 i.e. the compliance of Section 20(4) of the Act. The relevant dates have been delineated above. In the present case, the suit was instituted on 18.11.2010. The Court on 18.11.2010 fixed 20.12.2010 for filing the written statement. On the said date, the Court held that service of notice upon the petitioners was not sufficient and directed respondent no.1 to take fresh steps fixing 27.1.2011. On the said date i.e. 27.1.2021, the Court held that the service of notice upon the petitioners was sufficient and fixed 9.2.2011 for filing the written statement. On 9.2.2011, the Court passed an order for proceeding exparte fixing 21.2.2011 for hearing of the case. 37. Thereafter, on 18.2.2011 the petitioners filed a recall application along with an affidavit in support of the said recall application. Paragraphs 3 and 4 of the affidavit of the petitioners in support of the recall application are reproduced below : ^^3- ;g fd 'kiFkdrkZ dks vkids U;k;ky; ls ,d lEeu uksfVl çkIr gqvk Fkk vkSj mlus fu;r frfFk 27&01&11 dh rkjh[k fu;r FkhA 4- ;g fd 'kiFkdrkZ fnukad 21&01&2011 dks vpkud ckFk:e esa fxj iM+us dh otg ls jhढ+ dh gìh dh nnZ ls fifM+r gks tkus dh otg ls LFkkuh; MkDVj jksfgr xqIrk ,eåchåchå,lå vkFkksZisfMªd ¼gìh jksx fo'ks"kK½ dks fn[kk;kA** 38. From the perusal of paragraphs 3 and 4 of the affidavit, it is evident that the petitioner had received the summons of notice before 27.1.2011 since he has categorically stated in paragraph 3 that he knew that the date 27.1.2011 was fixed in the matter. However, he did not appear on the fixed date for the reason that he fell in the bathroom and suffered the injury. Even if, it is presumed that the petitioner fell and suffered the injury, he would have made another arrangement for putting the appearance on the date fixed i.e. 27.1.2011. So the petitioner was well aware of the date fixed i.e. 27.1.2011 and it is only in the interest of justice, the Court passed an order to recall the order dated 9.2.2011 on the recall application of the petitioner. 39. The Apex Court in the case of Ashok Kumar (supra) has held that in a small cause case, every date fixed is the date for the hearing.
39. The Apex Court in the case of Ashok Kumar (supra) has held that in a small cause case, every date fixed is the date for the hearing. The Apex Court in the said judgment has also held that the petitioners cannot be granted the benefit of adjournment of the case, once the first date of hearing has passed. In this respect, paragraphs 8 and 12 of the judgment are reproduced hereinbelow : "8. 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. 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 Uttar Pradesh 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 (a) of Explanation to sub-section (4) of Section 20.
But the said expression, as noticed above, is defined in clause (a) of Explanation to sub-section (4) of Section 20. Section 38 of the Uttar Pradesh 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 Uttar Pradesh 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 Uttar Pradesh Act, refers to 'the first date for any step or proceeding mentioned in the summons served on the defendant'. In our view those words mean the first date when the court proposes to apply its mind to identify the controversy in the suit and that stage arises after the defendant is afforded an opportunity to file his written statement. The controversy is no longer res integra. The aforementioned provisions fell for consideration of a three -Judge Bench of this Court in Siraj Ahmad Siddiqui Vs. Prem Nath Kappor, Manu/SC/0394/1993 : AIR 1993 SC 2525 . The Bench laid down as follows : "The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. Does the definition of the expression "first hearing" for the purposes of Section 20(4) mean something different? The step or proceeding mentioned in the summons referred to in the definition should, we think, be construed to be a step or proceeding to be taken by the court for it is, after all, a "hearing" that is the subject-matter of the definition, unless there be something compelling in the said Act to indicate otherwise; and we do not find in the said Act any such compelling provision.
Further, it is not possible to construe the expression "first date for any step or proceeding" to mean the step of filing the written statement, though the date 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.” 12. 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. Though, the suit was again adjourned to December 5, 1980, it would be irrelevant because the date of first hearing of the suit is the date when the court proposes to apply its mind and not the date when it actually applies its mind. It follows that the first hearing of the suit would not change on every adjournment of the suit for final disposal. The effective date of the first hearing of the suit on which the Court proposed to apply its mind, on the facts of the case, was October 10, 1980, as stated above.
It follows that the first hearing of the suit would not change on every adjournment of the suit for final disposal. The effective date of the first hearing of the suit on which the Court proposed to apply its mind, on the facts of the case, was October 10, 1980, as stated above. The amount of arrears of rent having been paid on that date, there is compliance of sub-section (4) of Section 20 of the Uttar Pradesh Act so the tenant is entitled to the benefit of the said provision." 40. Though, it is true that from the perusal of the recall application of the petitioner, it is evident that the summons were served on the petitioner and the petitioner had knowledge about the date fixed in the matter. However, the fact remains that the petitioner filed a recall application to recall the order dated 9.2.2011 which was allowed by the Trial Court, and the order dated 9.2.2011 was recalled, therefore, the order dated 9.2.2011 lost its existence after it was recalled by the Trial Court by order dated 18.5.2011 fixing 6.7.2011 for filing written statement. So the date 6.7.2011 fixed for filing the written statement by the Trial Court can be said to be the date in the light of the judgment of Mam Chand Pal (supra) when the court proposed to apply its mind. It is pertinent to note that the Apex Court in the case of Ashok Kumar (supra) has held that the first date of hearing shall be the date when the Court proposes to apply its mind. So as per the record of the Trial Court, it is evident that the first date for filing the written statement fixed by the Trial Court was 6.7.2011 for the reason the order dated 9.2.2011 which was the date fixed for filing the written statement was recalled by the Trial Court by order dated 18.5.2011. 41. It transpires from the record that the petitioner made the deposit under Section 20(4) of the Act on 22.3.2011 i.e. before 6.7.2011, which was the date fixed for filing the written statement. 42. In such view of the fact, the only conclusion which can be drawn is that the petitioner has made the deposit under Section 20(4) of the Act before the first date of hearing. 43.
42. In such view of the fact, the only conclusion which can be drawn is that the petitioner has made the deposit under Section 20(4) of the Act before the first date of hearing. 43. Thus, for the reasons given above, this Court does not find substance in the submissions of Sri Atul Dayal, learned counsel for the respondents that the first date on which the Court proposed to apply its mind was 9.2.2011, since the order dated 9.2.2011 had lost its existence after it had been recalled by the Trial Court. 44. This Court is of the view that the Trial Court as well as the Revisional Court has committed manifest illegality in deciding issue no.6 against the petitioner. However, since, this Court has held above that the provision of Uttar Pradesh Act No.13 of 1972 is not applicable, therefore, the deposit under Section 20(4) of the Act would not entail any benefit to the petitioner to save him from the eviction. 45. Since, this Court has upheld the finding of the Revisional Court on the issue of non-applicability of Uttar Pradesh Act No. 13 of 1972, therefore, in such view of the fact, the suit of the respondents deserves to be decreed and, accordingly, the judgment and decree passed by the Revisional Court is affirmed. 46. Thus, for the reasons mentioned above, the writ petition lacks merits and is, accordingly, dismissed. No order as to costs.