BAL MUKUND AGRAWAL Vs. DISTRICT JUDGE AND ORS.

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution in which the Petitioner tenant has prayed for quashing of two orders dated 30.10.1973 (Annexure 4) and 6.2.1974 (Annexure 5) passed by the Civil Judge, Rae Bareli and the Distt. Judge, Rac Bareli respectively under Order 15, Rule 5, Code of Civil Procedure.

(2.) THE material facts of the case are that Respondent No. 7 Mohammad Shafi, landlord, filed a suit against the Petitioner on 11.9.1969 in the court of Munsif, Rae Bareli for ejectment from the shop in suit and for recovery of Rs. 210/ - as arrears of rent and Rs. 175/ -as compensation for use and occupation. A written statement was filed by the Defendant on 30.4.1970. On 17.3.1972 the learned Munsif fixed 17.11.1973 for framing of issues. In the meantime, however, on 3.10.1972 the case was transferred to the court of the First Additional Munsif, Rae Bareli vide District Judge's order dated 26.9.1972 and on 27.11.1972 the transferee court fixed 14.12.1972 for issues. On the date fixed the case could not betaken up and 4.1.1973 was fixed as the next date for issues. On that date i.e. 4.1.1973 it, was discovered that the case was triable by the Judge, Small Causes Court in pursuance of Section 9 of the Civil Laws Amendment Act (U.P. Act 37 of 1972). Accordingly on 20.1.1973 the suit was transferred to the court of the Judge Small Causes i.e. Munsif, Rae Bareli and on 15.3.1973 that court fixed 18.4.1973 for final hearing. On the date fixed an application for attachment was made by the Plaintiff which was ordered to be put up on 19.5.1973 for disposal. On 17.5.1973, however, the Respondent No. 7 made an application No. 24/C under Order 15 Rule 5, Code of Civil Procedure praying that the Petitioner's defence be struck off as he had not deposited the arrears of rent and damages etc. on the first hearing as required under the law. On 20.10.1973 the case was received again by transfer in the court of the Civil Judge, Rae Bareli for disposal and arguments were heard on the application No. 24/C. The application was allowed by the learned Judge vide his order dated 30.10.1973 on the ground that in his written statement the Petitioner had not disputed the amount of Rs. 210/ - which were claimed by the Respondent No. 7 as arrears of rent and Rs. 175/ - as arrears of mesne profit for the use and occupation and the Petitioner had neither deposited such amount nor had he requested for time to deposit the amount. In the circumstance the Petitioners' defence was struck off. The order was upheld by the learned District Judge by his order dated 6.2.1974 and the revision filed by the Petitioner before him was dismissed. It is these orders whose validity has been challenged in this Misc. Application under Article 227.

(3.) IN order to appreciate the above contention it may be pointed out that the progress of the suit spanned really two periods, the one in which it remained pending in a regular court and the other during which its cognizance was taken by the Small Causes Court. A narrative of the facts already given would indicate that till 4.1.1973 the suit remained pending in the regular court of the Munsif, Rae Bareli in the first instance and the First Additional Munsif subsequently. From 20.1.1973 to 30.10.1973, which is the outer limit for the purpose of the present case, the suit remained pending in the Small Causes Court i.e. before the Munsif , Rae Bareli in the first instance and later before the Second Additional Civil & Sessions Judge. It has to be examined as to whether during these two phases of the suit the date of the 'first hearing' as contemplated by Order 15, Rule 5, Code of Civil Procedure had been reached or not. To my mind in the first phase of the case i.e. so long as it was before the regular court the date of the first hearing of the case would mean the date for framing of issues. Learned Counsel for the parties cited a large number of authorities before me dealing with the question as to what constituted the "first hearing" of the suit. Reference was also made to the various provisions of the Code of Civil Procedure. The consensus of authorities, however, seems to be that the "first hearing" in a suit commences when the court looks into the pleadings in order to formulate the points in controversy between the parties. In cases in which the issues are framed on the day the evidence begins, the hearing no doubt will be deemed to commence on that date. But where issues have to be framed on a date fixed for that purpose, the hearing certainly commences when the court takes up the case to frame the issues. This is possible only after the Defendant has filed his written statement. See Kalloo v. Mt. Imaman : AIR 1949 All 445. I am also inclined to refer to Order 8, Rule 1, Code of Civil Procedure which says that the Defendant may, and if so required by the court shall, at or before, the first hearing or within such time as the court may permit, present a written statement of his defence. In Makku Naicker v. Agthiappa, AIR 1949 Mad. 622, it was held that words "first hearing" under Order 8, Rule 1, Code of Civil Procedure signified only the date when the issues were framed. Obviously the Defendant has a right to file a written statement either before the framing of issues, if so ordered by the court or on the date of settlement of issues, if so permitted by the court. He cannot postpone the filing of the written statement of his own accord. He can do so only when the court accords permission. This was the view expressed by the Andhra Pradesh High Court in Chendraiah v. Seetarammaiah : AIR 1961 AP 102. In Binda Prasad v. United Bank of India : AIR 1961 Pat 152, it was observed that the expression "first hearing" used in Rule 1, Order 8, when the summons issued as required by Rules 1 and 5 of Order 5 is for settlement of issues only, means the date of settlement of issues, that is, the day when the issues are framed and recorded, as required by Rule 1(5) of Order 14 of the Code. In other words, where summons is issued for settlement of issues, the expression 'first hearing' means the date of the settlement of issues provided the issues are framed. In Smt. Jaggi v. Bhagwan Das, 1969 ALJ 1144 Asthana, J. as he then was, observed that the date of filing of the written statement cannot be confused with the date of hearing of the suit. Therefore whenever issues are required to be settled in a case the date of the 'first hearing' shall be the date on which the court applies its mind to the pleadings of the parties in order to ascertain what the controversy is. In this context I would also like to say that mere fixing of a date for framing of issues does not make it a date of first hearing. If on the date fixed, the case is adjourned for one reason or the other such as when the Presiding Officer himself is absent and no issues are actually struck then it would not be the date of first hearing. It is only when the pleadings of the parties are actually gone into by the court and it has applied its mind to the case of the parties and issues are actually framed that the date of first hearing can be said to have been reached and not otherwise. Hence, the Respondent would not be justified if he relies merely on the order sheet and fastening upon a date fixed for settlement of issues and insists that the same be treated as the date of first hearing. It is not normally the fixing of a date in a suit that determines the legal character of that date but it is the business actually transacted or not transacted which would eventually determine as to whether it was the date of the first hearing or not. As 1 have already observed, if on the date of settlement of issues the court actually takes up the case and frames issues, it would undoubtedly or other (?) it refrain from framing the issues it would still not answer the description of the terms 'first hearing'. That appears to be the gist of the numerous decisions rendered by different High Courts on the meaning of the expression 'first hearing', so far as the regular courts distinguished from Small Causes Courts are concerned.