MOHD YUSUF Vs. SHAFIQUR REHMAN KHAN

JUDGEMENT

(1.) THIS writ petition has been preferred against the judgment and order dated 03.05.2007, passed by the Judge Small Causes Court, Lucknow in SCC Suit No. 51 of 2006, the judgment and order dated 19.7.2007, passed by Addl. District Judge in SCC Revision No. 54 of 2007 and also against the order dated 16.8.2007 passed by Judge Small Causes Court, Lucknow in SCC Suit No. 51 of 2006. The judgment and order dated 03.5.2007 is the order whereby defense of the petitioner was struck of under Order 15 Rule 5 of C.P.C. on an application (15-C) given by the opposite party no. 1. The order dated 19.7.2007 is the judgment and order passed by revisional court whereby the revision preferred by the petitioner was dismissed on merit. The order dated 16.8.2007 is the order passed on application given after the decision in revision. In this application (C-33) the petitioner again sought permission to deposit the admitted rent which was dismissed on 16.8.2007. The argument of learned counsel for the petitioner is that the petitioner was entitled to deposit the admitted rent on any date but before the first date of hearing; that the first date of hearing is the date when the Court applies its mind by way of framing issues; that where framing of issues is not essential, the points of determination are treated as issues; that, thus, framing of issues or the formulating the points of determination are akin to each other. He further argues that parties were permitted to adduce evidence on 16.8.2007, therefore, the date 4.8.2007 was the first date of hearing. In support of his arguments, the petitioner's counsel has relied upon the decisions given in the cases of Dinesh Chandra Paliwal vs. District Judge, Pauri Gahrwal and others, reported in Allahabad Rent Cases, 1999 (2) 607, Vikas Pawar vs. Smt. Tara Rani and another, reported in 2005(1)0.ARC 196, Shankar Lal vs. District Judge, Banda and others, reported in ARC, 1996 (1) 485 and Siraj Ahmad Siddiqui vs. Prem Nath Kapoor, reported in (1993) 4 SCC 406. Learned counsel for the respondents, on the other hand, argued that as per Rule 4, Order XX of C.P.C.. it is not necessary for the judge Small Causes to frame issues and to give a decision thereon. He argues that the date of first hearing is the date mentioned in the summon. I have heard learned counsel for both the parties. For the purposes of deciding what is the date of first hearing and when the admitted amount of rent ought to be deposited, it is expedient to go through the U.P. Amendment whereby Rule 5 is added to Order XV of C.P.C. For the sake of convenience, Order XV Rule 5 (U.P. Amendment) is reproduced below. 5.Striking off defence for failure to deposit admitted rent, etc.- (1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent um per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the court may, subject to the provisions of sub rule (2), strike off his defence. Explanation 1: The expression 'first hearing' means the date for filing 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. Explanation 2: The expression 'entire amount admitted by him to be due' means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, paid to the lessor acknowledged by lessor in writing by him and the amount, if any, deposited in any court under section 30 of the U..P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Explanation 3: (1) The expression 'monthly amount due' means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor's account. (2)Before making an order for striking off defence, the court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in plaintiff; (3)The amount deposited under this rule may at any time be withdrawn by the plaintiff. Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited. Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same.- U.P. Act 57 of 1976 sec. 7 (4.1.1977) Thus, it is manifest from the perusal of Rule 5 of Order XV of C.P.C. that the defendant should deposit the entire amount admitted by him ' at or before first hearing' of the suit.. The expression 'first hearing' is explained in clause (a) of the Explanation to sub-section 4 of Section 20 of Act No. 13 of 1972. It is reproduced below: (a) the expression 'first hearing' means the first date for any step or proceeding mentioned in the summons served on the defendant; In 1982 ALJ 1324 and also in 1984 ALJ 1106 it was held that the first date of hearing would be the date which is mentioned in the summons. In a case reported in (1986) 1 ARC 485 (486) it was held by this Court that where a summon served upon the defendant is not accompanied with the copy of the plaint, the date mentioned in the summon is not the first date of hearing because a summon which is not accompanied with the copy of the plaint, is no summon in the eyes of law and, hence, the date mentioned in such summon is not the first date of hearing. The defendants are expected to file their written statements on the date mentioned in the summon. When the written statement is filed in court, the courts at once, become under obligation to frame the issues and, thus, in normal course, the courts apply their mind, by framing issues, on the date which is mentioned in the summon. It is possible that the defendant may, on the date mentioned in the summon, appear in court and may seek time for filing the written statement. In such cases, the date of first hearing would not be the date mentioned in the summon but would be the date when the written statements are actually filed and when the case becomes ready for framing of issues. As soon as the defendant files the written statement in court, it becomes obligatory for the court to frame the issues same day provided the case is posted on that date. Now, the question is whether the first date of hearing is the date when it becomes due for the trial judge to frame issues or it is the date when the trial judge actually frames the issues. Rule 5 of Order XV C.P.C. directs that the defendant shall deposit the entire admitted amount 'at or before' the first hearing of the suit. The words "at or before" occurring in Rule 5 Order XV C.P.C. makes it certain and undisputed that the date of first hearing falls only once and not on several dates. It also indicates that the date of first hearing does not change. The Code provides an opportunity to defendant to deposit the entire admitted amount at or before the date of first hearing. THIS opportunity is provided by the Code to deposit the amount at or before a certain date. The certain date cannot be made uncertain by postponing the framing of issues or by postponing the date for recording of evidence. It is, thus, not disputed that the first date of hearing falls only once in a case. The date of first hearing does not change and is pre-known to the defendant to enable him to deposit the admitted amount "at or before the date of first hearing." Hence, the date of first hearing is the date when the defendant files the written statement in the court, when it becomes obligatory for the court to apply its mind by framing the issues or by recording the evidence. If even after filing of written statement the issues are not framed for several dates, the date of first hearing will not change again and again. Thus, in view of what has been discussed above, I am of the view that the date of first hearing is the date when framing of issues becomes due or when the case becomes ready or riped for framing of issues. The admitted amount of rent, thus, may be deposited at or before the date when written statements are filed. I am fortified in my view by the pronouncement of the Hon'ble Supreme Court given in Ashok Kumar and others vs. Rishi Ram and others, reported in AIR 2002 SC 2520 (2524). The Hon'ble Supreme Court held, " Now adverting to the facts of the case on hand it has been noticed above that the suit was posted on May 20, 1980 for final disposal but that date cannot be treated as the first hearing of the suit as the Court granted time till July 25, 1980 to the tenant for filing written statement. On July 25, 1980, time was extended for filing written statement and the suit was again adjourned for final disposal to October 10, 1980.Inasmuch as after giving due opportunity to file written statement the suit was posted for final disposal on October 10, 1980 it was that date which ought to be considered as the date fixed by the Court for application of its mind to the facts of this case to identify the controversy between the parties and as such the date of the first hearing of the suit. Admittedly, on that date the appellant-tenant deposited all the arrears of rent. Though, the suit was again adjourned to December 5, 1980, it would be irrelevant because the date of first hearing of the suit is the date when the court proposes to apply its mind and not the date when it actually applies its mind. It follows that the first hearing of the suit would not change on every adjournment of the suit for final disposal. The effective date of the first hearing of the suit on which the Court proposed to apply its mind, on the facts of the case, was October 10, 1980, as stated above." In para 5 of the petition, it is stated that the petitioner-defendant filed his written statement on 08.08.2006, hence, in the case, in hand, 08.08.2006 was the date of first hearing when the Court was obliged to apply its mind to identify the controversy. The admitted amount of rent was not deposited till 08.08.2006. Hence, the admitted amount of rent was not deposited till the date of first hearing. In view of the discussions, made above, I do not find any illegality in any of the impugned orders. The petition is devoid of merit. It is dismissed.