SATISH CHANDRA, J. - (1.) A Learned single Judge has referred this writ petition for decision by a larger Bench because he found that there was a conflict of opinion between two Division Bench decisions of this Court on the question. "Whether the expression 'first hearing' as defined in Explanation I to Order 15 Rule 5, C.P.C., as amended by U.P. Act No. 57 of 1976 would include a date of hearing changed by the Court either suo motu or on the application of any of the parties ?"
(2.) THE third respondent in the writ petition is a waqf. This waqf on March 9, 1971, filed a suit in the Civil Court against the petitioner S.N. Trivedi for recovery of arrears of rent and ejectment from accommodation. The Court issued summons. In the summons March 21, 1972, was fixed for filing a written statement and April 11, 1972 for framing of issue. After several dates on which the case was fixed, the defendant filed his written statement on March 28, 1973. Meanwhile the U.P. Civil Laws (Amendment) Act No. 37 of 1972, came into force with effect from September 20, 1972. By this Act the jurisdiction to try suits for ejectment form an accommodation was transferred to the Small Causes Court. Accordingly the present suit was transferred to the Court of Small Causes. By the same Act, Rule 5 was added to Order 15, C.P.C. This provided for striking off the defence if the rent is not paid at or before the first hearing. On September 28, 1973, the plaintiff-landlord filed an application praying that the Court may strike out the defence under Order 15, Rule 5. C.P.C. Thereupon the defence woke up, and a couple of days later, on October 1, 1973, he made an application for permission to deposit the rent for the period ending September 30, 1973. The Court allowed this application at the defendant's risk. The Court took up the application of the plaintiff on October 19, 1973 and by a considered judgment of the date it held that the defendant had not deposited the rent at or before the first hearing and it struck off the defence. The defendant filed a revision which was, however, dismissed on September 28, 1976. The defendant came to the High Court which on October 4, 1977, remanded the matter. After remand the Additional District Judge again dismissed the defendant's revision on February 25, 1978. The defendant felt aggrieved and has filed the present writ petition.
(3.) RULE 5 added to Order 15 in 1972, in substance, provided that in a suit for ejectment and recovery of arrears of rent the defendant shall at or before the first hearing of the suit deposit the entire amount of admitted rent or compensation and continue to deposit the same regularly every month. In default the Court was to strike off the defence unless further time was allowed. This rule specifically provided that it applies to suit whether instituted before or after the commencement of the U.P. Civil Laws (Amendment) Act of 1972.;