R.M. Sahai, J. - (1.) THE only question in this Petition is whether deposit made by tenant on 11th April, 1978 was the first date of hearing so as to save opposite party from liability of eviction under Section 20 of U.P. Act XIII of 1972.
(2.) SUIT was filed on 4th October, 1976. On 20th January, 1978 summons were sent to opposite party by registered post for appearance on 7th February, 1978. As summons were not received back, Court directed to wait for it till 17th February, 1978. The time was extended again and the case was ultimately fixed on 28th February, 1978. On this date one Jhoolu, who is said to be brother of opposite party, moved an application praying that time may be granted for filing written statement. The application was allowed on payment of Rs. 10/ - as cost and the case was fixed on 11th April, 1978. As stated earlier on this date the tenant deposited the entire amount. It is not disputed that the amount deposited was as contemplated in Sub -section (4) of Section 20 of the Act. The only dispute was -whether it was first date of hearing or not. According to trial Court the first date of hearing was 28th February, 1978 whereas according to revising authority it was 11th April, 1978. It has been argued by learned Counsel for Petitioner that for purpose of Sub -section (4) of Section 20 it is the date mentioned, for appearance in the summons which has to be taken as the first date of hearing in view of explanation added in 1976. And as this suit was filed after addition of explanation the first date of hearing for purpose of this case could be none else except 28th February, 1978. Learned Counsel urged that it was not open to Courts to vary this and fix any other date. The argument is only partially correct. It is true that normally it is the date mentioned in the summons which has to be taken to be the first date of hearing but this has to be accepted with this qualification that summons must have been served on the tenant and only then it could be said that the date mentioned in the summons was the first date of hearing. The trial Court found that as summons was refused by tenant it shall be deemed to have been served on him. He recorded this finding after considering material on record. This finding as urged by learned Counsel for Petitioner could not be interferred in revision but the revising authority found that the summons which were sent for service on tenant by registered post did not contain copy of the plaint. According to him summons without, copy of plaint was not service in accordance with law. In taking this view he does not appear to have committed any error of law. The basic purpose of service shall be frustrated if service without copy of plaint is held to be service in accordance with law. How could the opposite party comply and deposit arrears without khowing it. As service was not in accordance with law, the date mentioned in the summons could not be taken the first date of hearing. In view of this it is not necessary to consider whether Jhoolu who was brother of Petitioner was competent to move application for adjournment, and if not its effect.
(3.) LEARNED Counsel for Petitioner relied on Babu Ram Gupta v. Daya Shanker, 1982 All RC 161, in support of the submission that first date of hearing does not change and urged that even when ex -parte decree was set aside the Court held the date mentioned in the summons for appearance as the first date of service. This decision is of no help to Petitioner as the Defendant had put in appearance and no defect was found in service.;