KRISHNA KUMAR GUPTA Vs. XIVTH A D J

JUDGEMENT

(1.) The only point involved in this writ petition relates to interpretation of "first hearing" as given in the Explanation to Section 20 (4) of U.P. Rent Control Act, (U.P. Act No. 13 of 1972) hereinafter referred to as Act, and its applicability upon the facts of the instant case.

(2.) The suit giving rise to the instant writ petition was filed by landlady respondent No. 3 against the tenant petitioner on 8.9.1993. The suit was registered as S.C.C. Suit No. 162 of 1993 on the file of J.S.C.C. Allahabad (Later on suit was transferred to Additional J.S.C.C.). Prior to filing of the suit tenancy was determined through notice dated 13.4.1993. served upon the tenant on 28.4.1993. In the notice as well as in the plaint, rent from February, 1984 was demanded. Tenant had already deposited the rent from February, 1984 till April, 1992 under Section 30 of the Act. After filing of the suit summons were issued to the defendant fixing 30.11.1993 as the date of hearing. On 30.11.1993. the presiding officer was on leave however defendant appeared and filed application praying for supply of copy of plaint. Thereafter on 18.12.1993 which was the date fixed on 30.11.1993 by the Reader of the Court, defendant did not appear, hence the suit was directed to proceed ex-parte, and the suit was decreed ex parte on 23.3.1994. Petitioner filed an application for restoration on 31.3.1994 and deposited an amount of Rs. 15,000 in compliance of the provisions of Section 17 of P.S.C.C. Act on 4.4.1994. On 7.4.1994 the restoration application was allowed and ex parte decree dated 23.3.1994 was set aside. Thereafter on 12.4.1994 formal order of restoration of suit on its original number was passed and 9.5.1994 was fixed for filing written statement. On 26.4.1994 tenant filed an application that only an amount of Rs. 7,624 was due against him (Rs. 6,000 as rent at the rate of Rs. 250 per month from May, 1992 to April, 1994 and Rs. 1,624 as cost of suit) hence out of the amount of Rs. 15,000 deposited by him remaining amount of Rs. 7,376 deposited in excess by him shall be returned to him. Landlord did not oppose the said application, hence it was allowed on 27.4.1994 and tenant was permitted to withdraw the amount of Rs. 7,376. However tenant did not actually withdraw the amount. On 9.5.1994 the petitioner filed written statement. On the said date the trial court recorded in the order sheet that both the learned counsel admitted that the said date was date of first hearing. Thereafter it was ordered that "fix 16.5.1994 for hearing". On 16.5.1994 the Reader of the Court recorded in the order sheet that Presiding Officer was not available due to promotion and transfer. The Reader fixed 4.7.1994 as the next date. On 4.7.1994 defendant filed an application seeking amendment in the written statement. In para 5 of the said application it was stated that "due to legal complication the defendant has not deposited an amount of Rs. 1,100 as alleged in para 19 of his written statement which needs certain amendments." In the prayer clause of the said amendment application the following amendment was sought to be made. "That in para 19 of the written statement the sentence beginning from the word "the defendant is depositing (Rs. 1,100) to Rs. 2 since September. 1987 to April 1987" be deleted and substituted by the following sentence :

(3.) The amendment application was allowed on 5.8.1994.