- (1.) T. P. Garg, J. This writ petition is directed against the order dated 13-9-1984, striking off the defence of the petitioner passed by the Judge, Small Causes Court, Banda-respondent No. 2 and the order dated 19-10-1984, passed by the respondent No. 1 affirming the said Order in the revision.
(2.) BRIEFLY stated facts are that the respondent No. 3 filed S. C. C. Suit No. 16 of 1982, for recovery of arrears of rent of Rs. 2212 for period 1-8-1979 to 26-8-1982, Rs. 25 as expenses of the notice and Rs. 115 as mesne profits from 27-8-1982 to 25-9-82. It was alleged by the plaintiff that the petitioner was tenant of the first floor of the house in dispute at monthly rent of Rs. 60 Smt. Chanda Devi was owner and landlady. She executed a Will and created a trust in the name of Badri Prasad Maheshwar Prasad Omar Dharmanth Trust, Baniyauta Banda. She died on 16-2-1982, and respondent No. 3 became owner and landlord. Petitioner did not pay rent since 1-7- 1979. He was given notice dated 21-7-1982 which was served on him on 27-7-1982. He did not comply with the notice. Respondent No. 3 filed suit for recovery of arrears of rent and ejectment in September, 1932. The summons were issued fixing 4-12-1982, for filing written statement and 10-12-1982 for hearing of the suit. On 10-12-1982 as the petitioner did not appear, the trial court directed to proceed ex parte fixing 20-12-1982 for hearing. On 17-12-1982 petitioner appeared and filed application to set aside the order dated 10-12-1982, whereby the court had directed to proceed ex-pane, on the allegation that he was not aware of the suit and was not served with summons issued by the court. On 20-12-1982, the court allowed the said application and set aside the order to proceed ex parte passed on 10-12- 1982, and further fixed 27-1-1983 for hearing of the case. On 20-12-1982 the court also passed order on the substitution application filed on behalf of plaintiff as during the pendency of suit managing trustee had died on October 1982 and sub stitution was sought to implead another trustee for prosecution of the case. 27th January, 1983 was holiday. On 28th January, 1983, petitioner submitted a tender for depositing Rs. 480 as rent from 1-2-1982 to 31-1-1983 which was passed by the court on 5-2-1983 and the petitioner deposited the amount on 8-2-1983. Thereafter, in subsequent months the petitioner deposited rent in court during the pendency of suit which is not in controversy here. Respondent No. 3 moved an application on 20-9-1983 before the respon dent No. 2 for striking off the defence of the petitioner on the allegation that the petitioner failed to deposit admitted rent due against him on the date of first hear ing and his defence was liable to be struck off under the provisions of Order XV, Rule 5 of the Code of Civil Procedure. The Court allowed the application and struck off the defence of the petitioner holding that the date of first hearing was 20-12-1982 and further even assuming that the petitioner had deposited rent on 28-1-1983 for the period upto 31st January, 1983, he failed to deposit interest, as such, his defence was liable to be struck off. Petitioner fifed revision against this order and the respondent No. 1 has dismissed the revision by order dated 19-10-1984.
(3.) THE main question involved in the case as to what is the date of 'first hearing' of the suit. Order XV, Rule 5 of the Code of Civil Procedure as amended by U. P. Act No. 57 of 1976 reads as under : "5. Striking off defence on failure to deposit admitted rent etc.- (I) In any suit a lessor for the eviction of a lease 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 centum per annum and whether or not be admits any amount to be due, he shall thought 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.- THE expression 'first hearing' means the date of filing written state ment or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. " Explanation 1 of Order XV, Rule 5 of the Code of Civil Procedure clarifies the expression 'first hearing'. It is the date of filing of the written statement or for hearing mentioned in the summons or where more than one of such, dates are men tioned, the last of the dates mentioned. Judge Small Cause Court took the view that 4-12-1982 was fixed for filing of the written statement and 10-12-1982, was fixed for hearing. On 10-12-1982, as the petitioner did not appear, the court directed to proceed ex parte and fixed 20-12-1982. The petitioner had filed application for setting aside the order dated 10-12-1982, on the ground that he was never served with summons of the suit. The Court allowed the said application on 20-12-1982 It was held that 20-12-1982 shall be deemed as the date of first hearing. The petitioner had submitted tender for pay ment of rent on 28th January, 1983, which cannot be taken as the date of first hearing and as such defence is liable to be struck off.;