G.P.MATHUR, J. - (1.) A suit for arrears of rent and ejectment filed by the landlord respondent No. 3 against the petitioner Ram Prasad has been decreed by the Judge, Small Causes Court, and the decree was affirmed by the additional District Judge in revision. Aggrieved the tenant-petitioner has filed the present writ petition. Parties have exchanged affidavits and, therefore, the writ petition is being disposed of finally at the admission stage.
(2.) THE first submission of learned Counsel for the petitioners is that the tenant had deposited the entire amount of rent together with landlord's cost of the suit in the date of first hearing of the suit and, therefore, no decree for eviction could be passed against him in view of the provision of Section 20(4) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act). In order to appreciate the argument of the learned Counsel, it will be necessary to mention certain dates. The landlord sent a notice demanding arrears of rent and determining the tenancy of the petitioner which was served upon him on 24.10.1977. Thereafter the landlord filed the suit for arrears of rent and ejectment which was decreed ex parte on 4.12.1979. The tenant moved an application under Order 9, Rule 13 CPC for setting aside the ex parte decree on 15.1.1980 and the decree was set aside on 5.7.1980 and the suit was restored to its original number on 11.8.1980. The parties were informed of the date of hearing as 12.11.1980. However, on 12.11.1983 the tenant moved an application 27-C praying for adjournment of the case and the said application was allowed and 12.2.1981 was fixed for the hearing of the suit. On 12.2.1981 tenant deposited Rs. 1,043/- which included Rs. 936/- as rent from 27.10.1976 to 26.(sic).1981, Rs. 72/- as the Court fee, Rs. 25/- as Advocate's fee and Rs. 10 as miscellaneous expenses. Section 20(4) of the Act provides that if at the "first hearing" of the suit the tenant deposits the entire amount of rent together with interest at the rate of nine per cent and the landlord's costs of the suit the Court may in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability of eviction. Explanation (a) to this sub-section provides that the expression "first hearing" means the first date for any step or preceding mentioned in the summons served on the defendant. The material on record does not show as to when the summons were actually served upon the petitioner-tenant and what was the date mentioned therein. Shri Mandhyan has submitted that the fact that the suit was decreed ex parte itself shows that the summons were not served upon the petitioner. In my opinion, from the mere fact that the suit was decreed ex parte and the said decree was later on set aside no inference can be drawn that the summons were not duly served upon the petitioner. There is no averment in the writ petition that the summons were not served upon the petitioner or that he got no knowledge of the suit. Even assuming that the summons were not duly served the fact that the petitioner filed a restoration application on 15.1.1980 for setting aside the decree would lead to the conclusion that at least on 15.1.1980 the petitioner got knowledge of the suit. The ex parte decree was set aside on 5.7.1980 and the suit was restored to its original number on 11.8.1980 and was fixed for hearing on 12.11.1980. Even if the contention of the learned Counsel for the petitioner is accepted he should have deposited the entire amount on the said date i.e. on 12.11.1980, in order to get benefit of Section 20(4) of the Act. Since the petitioner did not deposit the amount on the said date but sought adjournment and deposited the same on 12.2.1981 he cannot get any benefit of the deposit made by him and the suit was rightly decreed.
(3.) LEARNED Counsel has submitted that the date of first hearing should be deemed to be date on which the Court took up the case and applied its mind to the controversy between the parties and relied upon Subhash Chandra Jain v. Ist A.D.J., 1989(1) ARC 387, in support of his submission. In my opinion the contention raised by learned Counsel for the petitioner cannot be accepted for an artificial meaning has been given to the expression "first hearing" by Explanation (as to Section 20(4) of the Act which means the first date for any step or proceeding mentioned in the summons served on the defendant. This explanation has been added by U.P. Act No. 28 of 1976 with effect from 5.7.1976. In the case of Subhash Chandra Jain (supra) the Court was considering the situation as it existed prior to the amendment. In Sia Ram v. District Judge, 1984(1) ARC 480, a Full Bench of our Court has held that where the Court, on the date mentioned in his summons, adjourns the case to some other date without transacting any business or without applying its judicial mind to the list, the date of first hearing for purpose of Section 20(4) would still be the date mentioned in the summons. In Sheo Kumar Sharma v. IVth ADJ, 1985(2) ARC 344, and Baburam Gupta v. Daya Shanker, 1982(1) ARC 161 it has been held that the date of the first hearing will not be altered where after service of summons the suit is directed ex parte and the ex parte decree later on set aside. In Mohd. Alim v. Mohd. Abrar, 1989(1) ARC 329, also it has been held that the date of first hearing will not be altered even if after service of summons the suit is dismissed for default and later on it is restored. Therefore, in order to get the benefit of Section 20(4) of the Act the petitioner should have deposited the entire amount latest by 12.11.1980. Since he moved an adjournment application on the said date and deposited the amount on 12.2.1981 it is obvious that he cannot get any benefit of the deposit made by him and the decree for eviction was rightly passed against him.;