JAGANNATH Vs. RAM CHANDRA SRIVASTAVA

JUDGEMENT

(1.) A. N. Varma, J. This Civil Revision comes before us upon a reference made by a learned Single Judge (one of us) in consequence of a conflict between two Single Judge decisions of this Court on the construction of Order 15 Rule 5 of the Code of Civil Procedure and the effect of the Explanation 1 added thereto by the U. P. Amending Act No. 57 of 1976. In Mathura Prasad and another v. Vikram Jeet Singh (1978 Alld. Weekly Cases 523) also reported in 1978 A. L. J. 348) Hari Swarup, J. , interpreting the aforesaid provisions took the view that where the Court adjourns the hearing of a suit to a date other than that fixed in the summons, it is the adjourned date which should be deemed to be the date of the first hearing within the meaning of Order 15, Rule 5 C. P. C. H. N. Seth, J. on the other hand, in the case of Ajit Singh v. Shivji Maharaj Birajman Mandir, and others (1980 Alld. Rent Cases 511) observed that the date of the first hearing is the date mentioned in the summons and not any other date to which the Court might adjourn the hearing of the suit, even though without transacting any business on the date fixed in the summons. The Court below following the dictum of this Court in the case of Ajit Singh (supra) struck off the defence of the applicant on the ground that the applicant, a defendant in the suit giving rise to the revision, having failed to deposit the amount as contemplated under Order 15, Rule 5 on or before 11. 8. 1978, the date mentioned in the summons served on the defendant applicant for hearing of the suit, his defence was liable to be struck off in terms of Order 15, Rule 5. The applicant contends that the view taken by the Court below is unsustainable and that on a true construction of Order 15, Rule 5 read along with the Explanation 1 added thereto, it must be held that the date of the first hearing of the suit was 11. 4. 1980, being the date on which the applicant filed his written statement and inasmuch as the tender for making the deposit was submitted on that date, the applicant must be deemed to have complied with that Order 1. 5, Rule 5 C. P. C. The question therefore which falls for determination in the case is whether where the Court adjourns th2 hearing of a suit to a date other than that fixed for that purpose in the summons served on the defendant the date of the first hearing would be the adjourned date or the date originally fixed in the summons within the meaning of Order 15, Rule 5. We may first briefly set out the legislative history of the relevant provisions. Order 15, Rule 5 was added by U. P. Act No. 37 of 1972. At that time the provisions, namely Order 15, Rule 5 read as follows: "5. Striking off defence on non-deposit of admitted rent, etc.- (1) In any suit by a lessor for the eviction of a lessee from any immovable property after the determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use or occupation thereof, whether instituted before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act 1972, the defendant shall, at or before the first hearing of the suit, (or in the case of a suit instituted before the commencement of the said Act, the first hearing after such commencement) deposit the entire amount of rent, or compensation for use and occupation, admitted by him to be due, and thereafter throughout the continuance of the suit, deposit regularly the amount of monthly rent, or compensation for use and occupation, due at the rate admitted by him, and in the event ot any default in this regard, the Court may, unless after considering any representation made by him in that behalf it allows him further time on security being furnished for the amount, refuse to entertain any defence, or, as the case may be, strike-off his defence. " It would seem that the provision did not clearly define as to which date might be regarded as the date of the first hearing of the suit. In a regular civil suit it was always thought that the date of the first hearing of the suit can in no circumstance be anterior to the date fixed for settlement of the issues in view of Order 10, Rule 1, Order XV Rule 1 Order XIV, Rule 1 C. P. C. However, under the local law prevailing in this State suits filed by the lessors against lessees for eviction from a building are triable by a Small Cause Court or Courts exercising the powers of the Small Cause Court. Such suits are required to be tried as a small cause under the applicable local laws (U. P. Civil Laws Amendment Act, 1972 read with Provincial Small Cause Courts Act ). In a suit of that character normally no separate dates are fixed for settlement of issues, evidence and arguments. Each date is more often than not supposed to be for all the three purposes mentioned above in view of nature of the suit and the professed desire to dispose of such suits expeditiously. In view of this position in regard to cases arising before the insertion of Explanation 1 to Order 15 Rule 5 a controversy was often raised as regards the true meaning to be assigned to the expression the 'first hearing'. Some learned Judges took the view that the date fixed for filing the written statement or settlement of issues must be deemed to be the date fixed for final hearing within the meaning of Order 15, Rule 5 or an analogous provision, namely. Section 20 (4) of U. P. Act No. XIII of 1972. (It may be mentioned that Section 20 (4) of U. P. Act No. XIII of 1972 is in the same terms as Order 15 Rule 5 C. P. C. ). Others took the view that the first hearing in a suit of that character cannot be said to have reached until the Court applies its mind to the facts in issue. The consensus which emerged eventually was that the date of first hearing is that on which the Court brings its judicial mind to bear for the first time on the Us involved in the suit. The view taken was that if without applying its judicial mind to the Us the Court adjourns the hearing of the suit, that date cannot be regarded as the date fixed for first hearing of the suit. See Basu Dev Sahai v. Brij Mohan Lal (1979 A. W. C. 153, (D. B.)), Raghubir Singh v. Krishna Kant (1979 A. L. J. 495) and Ladley Prasad v. Shree Ram Shah Billa (1976 A. L. J. 494. 69 ). It appears that in view of the prevailing ambiguity or elasticity of the expression 'first hearing' in the context of the nature of the suits with which we are concerned and further in view of the judicial pronouncements on the true interpretation, of the term 'first hearing' occurring in Order XV, Rule 5 not being uniform, the Legislature intervened and inserted Explanation 1 to Order 15, Rule 5 by U. P. Act No. 57 of 1976. The explanation reads thus- "explanation 1.-The expression 'first hearing' means date for riling 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. " The role of an explanation in statutory construction is to remove any ambiguity in the main section or to make explicit that may be otherwise ambiguous Its basic function is to elucidate the main enactment. However, the construction of an Explanation must depend in the ultimate analysis upon its plain terms and the language used therein. We, therefore, turn to the language used in the explanation under consideration for finding out the true meaning of the expression 'first hearing. ' The first feature which strikes us is that in the definition of the expression 'first hearing' appearing in the Explanation under consideration the term used is 'means'. This term has come to assume a definite connotation in statutory construction. Normally 'means' has been held to be a term of narrower import than 'includes'. When a statute defines a term or expression as meaning such and such thing the definition is prima facie regarded as. restrictive and exhaustive. In Stroud's Judicial Dictionary of Words and Phrases (4th Edn. Vol. 3) the word 'mean' has been defined as follows: " (1 ). When a statute says that a word or phrase shall "mean"-not merely that it shall "include"-certain things or acts, "the definition is a hard and fast definition, and no other meaning can be assigned to the expression then is put down in the definition. " Stroud has quoted from the decision of Esher M. R. in Cough v. Cough ( (1891) 2 Q. B, 665 ). and also in Bristol Trams Co. v. Bristol (59 L. J, Q. B. 449 ). On the other hand, when the word is declared in a statute to 'include' particular things or circumstances, the definition is normally regarded as extensive. It is generally used to enlarge the meaning of words or phrases occurring in the body of the statute. This aspect has been highlighted in the following cases:- 1. (1899) AC 99 (Privy Council) page 105.

(2.) A. I. R. 1960 SC 610 at 614.