SANJAY AGRAWAL Vs. GANGA PRASAD AGRAWAL

JUDGEMENT

(1.) S. S. Kulshrestha, J. This revision under section 25 of Small Causes Courts Act was brought by the applicant/defendant against the order dated 23. 11. 2005 passed by the learned Judge Small Causes Court/additional District Judge, Allahabad whereby striking off the defence under Order XV, Rule 5 of the Code of Civil Procedure (hereinafter referred to as 'the Code') on the Application 25-C moved in that behalf by the landlord/opposite parties. It is said that the Trial Court has erect while construing the 'first date of hearing' and finding the deposits to be not in accordance with law. For the purpose of Order XV, Rule 5 of the Code the date of hearing would be the date when the Court applied its mind to determine the points of controversy and not date fixed for filing of written statement. The Trial Court has fixed 12. 1. 2006 for final hearing on the points in issue and so that would be deemed to be the 'first date of hearing'. Finding to the contrary recorded by the Trial Court holding 3. 1. 2005 to be the 'first date of hearing' when the written statement was filed as patently illegal and against the well settled principle of law. It has also been contended that the deposit under section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act No. 13 of 1972 (hereinafter re ferred as 'the Act') ought to have been adjusted by the Trial Court. As regards non deposit of the interest @ 9% per annum accrued on the arrears of rent was on account of lack of suitable advice from the Counsel. Subsequently, that amount was also deposited and so such lapses on the part of the defendant was to be condoned by the Trial Court. Even otherwise the provisions of Order XV, Rule 5 of the Code are directory and for non deposit of the amount on the first date of hearing, if the defence is struck off it would defeat the very intendment of the legislature which is for the benefit of the tenant.

(2.) THIS revision is resisted by the landlord/opposite parties contending that the defendant came to know about filing of the suit on 7. 12. 2004 when he asked for giving the copy of plaint and other annexures would be construed to be date of first hearing. Whatever money has made under section 30 of the Act by the defendant would not be adjusted towards the deposit under Order XV, Rule 5 of the Code. Entire admitted rent was not deposited by him. Tax is also the part of rent as its statutory and contractual liability is of the defendant. The same was not deposited by him from 1994. Further in compliance of Order XV. Rule 5 of the Code the defendant has not made deposit of the interest amount @ 9% per annum within the stipulated period and subsequent deposit cannot be validated by condoning delay as the Court had no power for the same.

(3.) RELIANCE has been placed on the decisions rendered in the cases of Ved Prakash Wadhwa v. Vishwa Mohan, AIR 1982 SC 816=1981 ARC 1 wherein Court was concerned with the same expression viz. , 'first hearing' implied in section 20 (a) of the Act. The Apex Court, while interpreting the critical impression 'first hearing" enunci ated the law as under: "the question of law raised before us may perhaps be pronounced upon as it is of general importance. Section 20 (4) of the Act which we have ex cerpted above fixes the crucial date for deposit of rent as "at the first hear ing of the suit. " What is "the first hearing of the suit"? Certain decisions have been cited before us of the Allahabad High Court which indicate that "the first hearing of the suit" is when, after the framing on issues, the suit is posted for trial, that is, production of deviance. In the matters of State statutes where procedure has to be pronounced upon, the practice of the Court is the best guide to interpretation and the Allahabad High Court having pronounced upon the question we think we ordinarily accept such interpretation unless there is something revoltingly wrong about the construc tion. We see none here and, therefore, adopt as correct the decision of the High Court regarding the meaning of the expression "at the first hearing of the suit. " We may, however, add that the expression "at the first hearing of the suit" is also to be found in Order X, Rule 1, Order XIV, Rule 1 (5) and Order XV, Rule 1 of the Code of Civil Procedure. These provisions indicate that "the first hearing of the suit" can never the earlier than the date fixed for the preliminary examination of the parties (Order X, Rule 1) and the settlement of issues (Order XIV, Rule 1 (5 ). "