INDRAJIT SINGH Vs. HARIHAR NARAIN CHAUBE

JUDGEMENT

(1.) This is a revision by the defendant. A suit for ejectment and arrears of rent was filed against the defendant. The allegation was that the defendant was a tenant at the rate of Rs. 80.00 per month and was also liable to pay water tax and house tax. The rent from 1-5-1976 was due against the defendant, and his tenancy had been terminated by a notice under Sec. 106 of the T. P. Act. It was also asserted that the accommodation in dispute had been built in 1971, and as such was not governed by either the Rent Act of 1947 or of 1972.

(2.) On receiving summons, the defendant put in appearance, and filed an application for grant of time for filing a written statement, and for depositing the amounts claimed by the plaintiff in the suit. The trial court granted time to the defendant to file his written statement, but passed no orders on the application for time to deposit the amount claimed by the plaintiff. Subsequently it took up the application for the grant of time for depositing the rent, and dismissed it. The defendant had filed his written statement, and as a consequence of the dismissal of the application for time to deposit the amount claimed by the plaintiff the defence was struck off. Proceeding ex parte the court held that the constructions had been made in 1971 and the defendant was liable to ejectment.

(3.) Counsel for the defendant-applicant contends that the trial Court can strike off the defence, only in case the defendant did not deposit the amount claimed on the first hearing of the suit. His contention is that the date when he filed the application for being granted time to file his written statement, was not the first date of hearing of the case, as the Court on that day had no occasion to apply its mind judicially to the controversy between the parties. It is urged that as such the defence could not be struck off on the the ground that the defendant had not deposited the amount required by him to be deposited by O. XV Rule 5 C. P. C. In support of this contention he has drawn my attention to the decision in the case of Basudev Sahi Vs. Brij Mohan Lal (1979 All WC 153) : (1979 All LJ 484) In this case it has been held that in law there is a difference between the date of hearing of the suit and the first hearing. It was pointed out that the first hearing of the suit is the date on which the Court applies its mind judicially to the controversy between the parties, and the dates on which interlocutory proceedings in a suit take place are not dates of the first hearing of the suit. On the contrary counsel for the respondent drew my attention to the decision in the case of Beni Madhav Misra Vs. Shiv Govind (1979 UP RCC 165) : (AIR 1979 All 359) , wherein it has been held that a date on which only adjournment takes place is not the date of the first hearing of the suit, but a date will fall within the category of date of first hearing where some other proceeding in the case takes place. In taking this view the learned single Judge relied on a Division Bench decision of this Court in the case of Bankey Behari Vs. Gooal Dass (1977 All WC 321) : (AIR 1977 NOC 253), (All) wherein it was held that the date fixed for filing the written statement may also be the date of hearing, if, the summons issued to the defendant discloses that the date given, was for filing the written statement was also for hearing of the case. I think that it may not be necessary in this case to decide this controversy, for the defendant is entitled to succeed on other contention raised viz. that even if the construction was made in 1971 as alleged by the plaintiff, the accommodation would be governed by the 1972 Rent Act, and as the grounds set out under Sec. 20 of that Act for evicting the applicant had not been made out, the suit could not be I decreed. In the case of Ratan Lal Singhal Vs. Smt. Murti Devi (1979 UP RCC 623) : (AIR 1980 SC 635)) the Supreme Court has held that the Rent Control Act of 1972 applied to all buildings constructed up to the date on which this Act was enforced. A Division Bench of this Court in the case of Smt. Radha Devi Vs. Prescribed Authority (Writ Petition No. 9592 of 1979 decided on 11-12-1979) (Reported in 1980 All LJ 84) following that decision held likewise. Counsel for the plaintiff-opposite party tried to contend that the defendant was in arrears of rent for over than four months, and had not paid the rent within one month of the notice of demand served on him, and as such he was liable to be ejected, in view of Sec. 20 (ii) (a) of the Rent Act, 1972. This controversy cannot be examined here, for the trial Court did not go to this controversy, perhaps being under the impression that the Rent Act, 1972 did not apply to the building in question. It will be for the trial Court to decide this contention.