BHARGAVA, J. - (1.)THESE two revision applications are being disposed of together because they raise a common question in law.
(2.)IN Civil Revision No. 434 of 1968, the plaintiffs-non-petitioners filed a suit for ejectment and arrears of rent against the petitioner on 28th February, 1967 with the allegation that the construction of the house was completed in February, 1961 and as such the provisions of the Rajasthan Premises (Control of Rent and Eviction), Act (hereinafter called the Act) did not apply to it. The defendants contested the suit on various grounds and also stated that the house had been constructed in the year 1959 and the provisions of the Act applied to it. On 3rd January, 1968, after the case had been adjourned several times the plaintiffs sought leave of the court to amend the plaint in order to take an additional ground for eviction i. e. , default in the payment of rent for more than six months by the defendant with effect from 1st October, 1966 to January, 1968. The learned Civil Judge, Jaipur City allowed the amendment application and hence this revision application by the defendant.
In Civil Revision No. 470 of 1968 the plaintiff-non-petitioner filed a suit for ejectment in the Court of the Munsif, Jaipur West against the defendant in November, 1966 on the ground that he had made material alterations in the leased property and has done substantial damage to it.

The defendant contested the suit and filed his written statement on 24th February, 1967. After the case had been adjourned several times the plaintiff submitted an application for leave to amend the plaint on 19th December, 1967 under order 6 R. 17 to enable him to take an additional ground for eviction i. e. , the default in payment of rent for six months during the pendency of the suit. The learned Munsif allowed the amendment application on 24th May, 1968 and hence this revision application by the defendant.

Leave to amend is granted as a general rule so as to determine the real question in controversy between the parties to be realised on the pleadings. But an important exception to this rule is that the amendment will not be allowed if it causes an injury to the opposite party which cannot be compensated for by costs. Amendment shall not be allowed where the opposite party is deprived of any defence which would be open to it if fresh suit is brought against it on the new cause of action. Here the contention of the learned counsel for the petitioners in both the cases is that if the leave to amend is given to the plaintiff the defendants will be deprived of the protection from eviction provided to them by sub fee. 4 of sec. 13 of the Act. It is contended that where a tenant has incurred forfeiture due to non-payment of rent and a suit for eviction is filed against him on the ground set forth in clause (l) of sub-sec. (i) of sec. 13 with or without any of the other grounds referred to in that sub-section, the tenant has got another chance of being saved from eviction if he deposits or offers to deposit arrears of rent together with interest and costs of the suit on the first date of hearing which according to the learned counsel is the date on which the defendant is summoned to appear. But in these cases the first date of hearing has already passed and the defendants therefore cannot take advantage of the aforesaid provision and shall thus be deprived of the defence which they could have taken if a fresh suit has been filed against them by the plaintiff on the new cause of action i. e. ,, defaults made during the pendency of the suit.

On the other hand it. is urged on behalf of the non-petitioners that the first date of hearing mentioned in sub-sec. 4 of sec. 13 is not the date fixed for the return of summons but is that date on which the court applies its mind to the facts of the case which according to them normally is the date when issues are framed. It is urged that in both these cases issues have not yet been framed and as such it is still open to the defendants to take advantage of the aforesaid provision and make deposit if they so choose. The controversy therefore, centres round the point as to what is the meaning of the "first date of hearing" in sub-sec. (4) to sec. 13 of the Act.

In order to appreciate the arguments advanced by the learned counsel for the parties it is necessary to quote Sub-sec. 4 sec, 13. "in a suit for eviction on the ground set forth in clause (a) of sub-sec. (1), with or without any of the other grounds referred to in that sub-section, the tenant shall, on the first date of hearing or on or before such date as the Court may, on an application made to it, fix in this behalf, or within such time, not exceeding to two months, as may be extended by the Court, deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable upto the date of deposit and shall thereafter continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate. " This sub section was substituted by sec. 2 (b) of the Rajasthan Premises (Control of Rent and Eviction) Amendment Act, 1965 (Rajasthan Act No. 12 of 1965) as published in Rajasthan Gazette Extraordinary, Part IV-A on 9th June, 1965. The Act as is well known was enacted for the purpose of controlling the eviction and rents for certain premises in Rajasthan. Sec. 13 provides an exception to the general law provided in the Transfer of Property Act as regards the forfeiture of tenancy and eviction of tenants and provides that "notwithstanding anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless the conditions mentioned in sub-sec. 1 (a) to (1) are satisfied. After a suit for eviction on the ground mentioned in sub-sec. 1 (a) alone or with any other ground mentioned from (b) to (1) of sub-sec. (1) is instituted a further opportunity is provided to the tenant to prevent eviction by sub-sec. (4) of sec. 13 if he complies with the provision of the aforesaid sub-section. In case a tenant fails to deposit or pay any amount referred to in sub-sec. (4) on the date or within the time specified therein sub-sec. (6) empowers the court to order the defence against eviction to be struck out to proceed with the hearing of the suit.

The controversy about the meaning of the "first date of hearing" has arisen because the term "hearing" or "first date of hearing" has not been defined in the Act. The proceedings for eviction and recovery of arrears of rent are initiated on suit instituted in civil courts and the Act does not contain any specific provision to the contrary regarding the trial of such suits. Therefore, the proceedings in such suits are also governed by the procedure laid down in the Civil Procedure Code. In the Code of Civil Procedure the term 'fist hearing' occurs in various rules as for instance O. 8, R. 1, O. 10 R. 1, O. 13 R. 1, O. 14 R. 1 sub-rule (5), O. 15 R. 1 and O. 35 R. 4 and it would appear from the language of the different rules mentioned above that the first hearing does not mean the same thing everywhere. In Sheikh Abdul Rahman vs. Shib Lal Sahu (l), it was observed : "the word "hearing" has not been defined in the Civil Procedure Code, but it is obvious that it is used in the different rules with a view to state the different purposes for which a date for hearing of the suit is fixed. Now in Or. IX, r. l, read with r. 3, it would appear that after the institution of the suit when the summons is issued upon the defendants calling upon them to appear upon a particular date and that date is the first hearing of the suit and if the parties fail to appear when the suit is called on for hearing on that date the plaintiff's suit is dismissed for default. " In support of their contention learned counsel for the petitioners relied upon Hira-lal vs. Gian Singh and Co. (2) where it was held by Kapur, J. that : "the words 'first day of hearing' in s. 9 (1) (a), proviso of the Act must mean the day when the defendant appears in answer to the summons and the Court takes up the case in accordance with O. 9 R. 1 of the Civil Procedure Code. "

The second case relied on is Brij Kishore vs. Dr. Amar Nath (3) where Teja Singh C. J. held that : "the term 'first hearing' is used in sec. 13 (2) proviso in the same sense in which it is used in Rules 3 and 8 of Order 9, Civil P. C. , otherwise the very object of the proviso would be defeated. That is to say, in order that the tenant be entitled to the benefit of the proviso he must pay or tender the rent on the very first day he appears in Court after notice of the petition had been served upon him. " Learned counsel have next referred to Jagat Ram Hamirchand vs. Shanti Sarup (4) where it was held that : "mere service of summonses will not make the hearing a first hearing; unless the summonses have been served with a copy of the application the appearance of the tenant in response to them will not make that hearing a first hearing. The word 'due' indicates that the tenant is made aware of what he is to answer in response to the service of summons. Otherwise the word 'due' would become superfluous. " It was further held that : "in the context of the proviso to sec. 13 (2) of the East Punjab Rent Restriction Act, 1949 the word 'due service' mean service along with copy of application. Any hearing after this service would be a first hearing. " Reliance is also placed on two decisions of the Supreme Court in Sangram Singh vs. Election Tribunal (5) and Shah Dhansukh Lal Chagan Lal vs. Dalichand Virchand Shroff (6 ). In the first case their Lordships pointed out the distinction between the first hearing and the adjourned hearing as used in Order 9 R. 6 (1) (a) and Order 9 R. 7 and it was pointed out that the rules draw a distinction between the first hearing and 'subsequent hearing' and the first hearing can be either (a) for the settlement of issues or (b) for final disposal of the suit, and their Lordships after noticing certain provisions of the Code of Civil Procedure observed that : "order 9, R. 6 (1) (a) is confined to the first hearing of the suit and does not per se apply to subsequent hearing. " In the second case where a suit for eviction was filed on the ground that the tenant was in arrears for a period of more than 6 months and the tenant although raising a dispute as to the standard rent or permitted increases recoverable under the Act made no application in terms of sec. 11 (3),, it was held that: 'to be within the protection of sub-sec. (1) where he raises a dispute about the standard rent payable, he must make an application to the court under sub-sec. (3) of sec. 11 and thereafter pay or tender the amount of rent and permitted increases, if any, specified in the order made by the Court. If he does not approach the Court under sec. 11 (3), it is not open to him thereafter to claim the protection of sec. 12 (1 ). " Further it was held that : "to be within the protection of sec. 12 (3) (b) the tenant must not only pay all the arrears due from him on the first day of hearing of the suit, but he must thereafter continue to pay or tender in court regularly the rent and the permitted increases till the suit is finally decided. " In paragraph 4 their Lordships observed that : "the date fixed for settlement of issues was September 3, 1956 which can be taken to be the date of the first hearing of the suit for the purposes of the Act. " Sec. 12 (3) (b) of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) which was under consideration in the above case was as follows : "in any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increase then due and thereafter continues to pay or tender in Court regularly such rent and permitted increase till the suit is finally decided and also pays costs of the suit as directed by the Court. " The above provision though differently worded substantially corresponds to sec. 13 (4) of the Act. Learned counsel for the non-petitioners have invited my attention to the observations of Tendolkar J, in Khanderao Malkarjun Dhotre vs. Anandrao Laxmanrao Mashalkar (7) where the learned Judge observed : "the first day of hearing" in sec. 12 (3) (b) means, not the day fixed for return of the summons or what is sometimes called the returnable day, but the day on which the judge applies his mind to the case, which ordinarily he would do at the time when the issues are determined, is the day mentioned and that is the day before which the rent should be paid". There the learned Judge tried to draw a distinction between the 'first day of hearing' and the 'first day fixed for hearing. With great respect to the learned Judge I may say that the distinction between the two is without any difference because the date of hearing whether it is the first one or the adjourned is always fixed. This decision was also noticed by Khosla C. J. in Melaram vs. Kundanlal, (8) and the learned Chief Justice made the following observations in regard to the observations made by Tendolkar J, in Khanderao's case (7) : "with great respect to the learned Judge, the reasoning does not appear to me to be very logical and an enquiry into semantics is hardly likely to prove helpful in a case of this type, because when there is a day of hearing, the day of hearing is fixed and, therefore, whether it is the first day of hearing which is fixed or the second day of hearing which is fixed, would make no difference at all to the case. A day fixed for hearing can apply to the every day fixed for hearing and not only the first one. Therefore, the distinction sought to be made by the learned Judge is illusory and not real. " The other case relied upon by the learned counsel for the non-petitioners is Shah Ambalal Chhotalal vs. Shah Babaldas Dyabhai (9 ). It simply follows Khanderao's case (7) and does not give any further reasons. However, in view of the decision of the Supreme Court in Shah Dhansukhlal's case (6) with regard to the interpretation of the term 'first hearing' used in sec. 12 (3) (b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, the decision of the Bombay High Court in Khanderao's case (7) cannot now be regarded a good law. In view of the two decisions of the Supreme Court it is beyond controversy that the term 'first date of hearing" is the date fixed in the summons issued under O. 5 r. 1 for th. 2 settlement of issues and on which date the defendant is required to appear as provided in O. 9 r. 1 of the Code of Civil Procedure. 9. It has further to be borne in mind that sub-sec. (4) of sec. 13 is a provision which gives additional protection to a tenant from eviction after the institution of a suit against him on the ground of default in payment of rent and so the law enjoins upon him to clear all the arrears alongwith interest and costs of the suit at the earliest possible opportunity afforded to him under sub-sec. (4 ). In point of time the first date of hearing is a fixed date and it could not have been intended by the legislature that it should vary from case to case depending upon as to when the court applies its mind to the facts in each case. To hold differently would mean giving unfair advantage not intended by the legislature to defaulter tenants who by multifarious devices might keep the matter lingering until the court applies its mind to the facts in a given case. It is not the object of the Act that the tenant may remain in occupation of the premises and yet not pay the rents due from him. I am, therefore, clearly of the opinion that the term 'first date of hearing' used in sub-sec. (4) of sec. 13 is the date fixed for the return of summons issued for settlement of issues or for final disposal of the suit. This being so if the amendments sought for by the plaintiffs in both these cases are allowed the defendants will be deprived of the opportunity to avail of the provisions of sub-sec. (4) of sec. 13 of Act.

I would, therefore, allow both the revision applications and set aside the orders passed by the courts because they have acted in disregard of well established principles governing the amendment of pleadings. But in the circumstances of the case, I leave the parties to bear their own costs of these revision applications. .

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