- (1.) S. S. Kulshrestha, J. This revision under section 25 of Small Causes Courts Act was brought by the applicant/defendant against the order dated 23. 11. 2005 passed by the learned Judge Small Causes Court/additional District Judge, Allahabad whereby striking off the defence under Order XV, Rule 5 of the Code of Civil Procedure (hereinafter referred to as 'the Code') on the Application 25-C moved in that behalf by the landlord/opposite parties. It is said that the Trial Court has erect while construing the 'first date of hearing' and finding the deposits to be not in accordance with law. For the purpose of Order XV, Rule 5 of the Code the date of hearing would be the date when the Court applied its mind to determine the points of controversy and not date fixed for filing of written statement. The Trial Court has fixed 12. 1. 2006 for final hearing on the points in issue and so that would be deemed to be the 'first date of hearing'. Finding to the contrary recorded by the Trial Court holding 3. 1. 2005 to be the 'first date of hearing' when the written statement was filed as patently illegal and against the well settled principle of law. It has also been contended that the deposit under section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act No. 13 of 1972 (hereinafter re ferred as 'the Act') ought to have been adjusted by the Trial Court. As regards non deposit of the interest @ 9% per annum accrued on the arrears of rent was on account of lack of suitable advice from the Counsel. Subsequently, that amount was also deposited and so such lapses on the part of the defendant was to be condoned by the Trial Court. Even otherwise the provisions of Order XV, Rule 5 of the Code are directory and for non deposit of the amount on the first date of hearing, if the defence is struck off it would defeat the very intendment of the legislature which is for the benefit of the tenant.
(2.) THIS revision is resisted by the landlord/opposite parties contending that the defendant came to know about filing of the suit on 7. 12. 2004 when he asked for giving the copy of plaint and other annexures would be construed to be date of first hearing. Whatever money has made under section 30 of the Act by the defendant would not be adjusted towards the deposit under Order XV, Rule 5 of the Code. Entire admitted rent was not deposited by him. Tax is also the part of rent as its statutory and contractual liability is of the defendant. The same was not deposited by him from 1994. Further in compliance of Order XV. Rule 5 of the Code the defendant has not made deposit of the interest amount @ 9% per annum within the stipulated period and subsequent deposit cannot be validated by condoning delay as the Court had no power for the same. In order to appropriate the answer to the questions raised by the learned Counsel for the parties. It shall be useful to make a brief resume of the facts. Respondents filed suit No. 23 of 2004 on 18. 8. 2004 in the Court of Judge Small Causes Court, Allahabad for the ejectment of the applicant/defendant and also for the recovery of the arrears of rent. Summons were issued to the de fendants fixing 8. 10. 2004 for filing written statement and for final hearing of the suit. Suit was transferred to another Court on 8. 10. 2004. Nobody turned upto attend the proceedings of that suit on the date fixed. Ultimately fresh sum mons were issued fixing 20. 10. 2004 for filing of written statement and final hearing. On 20. 10. 2004 service of the summons found to have not been affected on the defendant/applicant and so fresh summons were issued for 7. 12. 2004 for filing written statement and final hearing. On 7. 12. 2004 appearance has been put in by the learned Counsel for the defendant and request was made for fur nishing copy of the plaint and its annexures so that written statement may be filed. That application moved on behalf of the defendant was ordered to be put-up on 13. 1. 2005 for further orders. In the meantime on 3. 1. 2005 written statement was filed by the defendant. On 13. 1. 2005 issues were framed and on 22. 2. 2005 an application was moved on behalf of the plaintiff that since the defendant had not made deposits of the arrears of rent etc. in compliance of the provisions of Order XV, Rule 5, of the Code and so his defence is liable to be struck off. The application was opposed by the defendant with the contentions that he made deposit of arrears of rent under section 30 of the Act in Misc. Case No. 535 of 2000 w. e. f. March, 2000 to June, 2004 and thereafter rent was regu larly deposited in the suit under Order XV, Rule 5 of the Code w. e. f. July, 2004 till 31st December, 2005. The defendant has not committed any default in de positing the admitted rent. As regards the deposit of the interest @ 9% per an num it is contended by him that the same could not be deposited in time because of lack of suitable advice. However, that amount was subsequently deposited. Such deposit has been contended by the plaintiffs/opposite parties to be not on the first date of hearing and would not be construed to be in compliance of Order XV, Rule 5 of the Code learned J. S. C. C. after hearing learned Counsel for the parties held that the applicant had failed to deposit arrears of rent together with interest @ 9% per annum on the first date i. e. , 3. 1. 2005 which according to him was the date of first hearing in the suit for ejectment, the defence of the tenant was therefore struck off. The question arises for consideration in this revision is as to whether the date of filing of the written statement as mentioned in the summons i. e. , 7. 12. 2004 is the date of first hearing of the suit for ejectment and non payment or not tendering of arrears of rent together with interest and on that very date will make defence of the applicant/defendant liable to be struck off. In the in stant case 7. 12. 2004 was fixed as date for filing of written statement and also for final hearing of the suit but as has been described above, appearance was put in by the learned Counsel for the defendant and sought some time for filing written statement and in the meantime copy of the plaint and annexures were required to be furnished to him. That application was put up for orders on 13. 1. 2005 but the written statement was filed before to it i. e. , on 3. 1. 2005. The suit came up for hearing on 13. 11. 2005 when issues were settled. Subsequently these issues were scored out as were not required to be formulated for disposal of the suit. The date mentioned in the summons i. e. , 7. 12. 2004 would not be treated to be the date of first hearing of ejectment suit but it was the date of appear ance of the defendant as on that date Court did not take uphearing of the suit. It is only after written statement is filed, issues were framed on 13. 1. 2005 and hearing shall be deemed to have been commenced.
(3.) RELIANCE has been placed on the decisions rendered in the cases of Ved Prakash Wadhwa v. Vishwa Mohan, AIR 1982 SC 816=1981 ARC 1 wherein Court was concerned with the same expression viz. , 'first hearing' implied in section 20 (a) of the Act. The Apex Court, while interpreting the critical impression 'first hearing" enunci ated the law as under: "the question of law raised before us may perhaps be pronounced upon as it is of general importance. Section 20 (4) of the Act which we have ex cerpted above fixes the crucial date for deposit of rent as "at the first hear ing of the suit. " What is "the first hearing of the suit"? Certain decisions have been cited before us of the Allahabad High Court which indicate that "the first hearing of the suit" is when, after the framing on issues, the suit is posted for trial, that is, production of deviance. In the matters of State statutes where procedure has to be pronounced upon, the practice of the Court is the best guide to interpretation and the Allahabad High Court having pronounced upon the question we think we ordinarily accept such interpretation unless there is something revoltingly wrong about the construc tion. We see none here and, therefore, adopt as correct the decision of the High Court regarding the meaning of the expression "at the first hearing of the suit. " We may, however, add that the expression "at the first hearing of the suit" is also to be found in Order X, Rule 1, Order XIV, Rule 1 (5) and Order XV, Rule 1 of the Code of Civil Procedure. These provisions indicate that "the first hearing of the suit" can never the earlier than the date fixed for the preliminary examination of the parties (Order X, Rule 1) and the settlement of issues (Order XIV, Rule 1 (5 ). " Identical view was expressed by the Apex Court, in the cases of Siraj Ahmad Siddiqui v. P. N. Kapoor 1993 (22) ALR 375 (SC ). Advaita Nand v. J. S. C. C. , 1995 (26) ALR 71 (SC ). and Sudharshan Devi and another v. Sushila Devi and another 1999 (37) ALR 496 (SC ). It was reiterated that the date fixed for filing of the written statement would not be the date of first hearing but the date when the Court has applied its mind for determination of the points would be construed to be the date of first hearing.;