Hari Swarup, J. - (1.) THIS Revision has been filed against the order of the Munsif Rae Bareli striking off the defence under Rule 5 of Order XV of the CPC and against the revisional order of the District Judge dismissing the revision. The facts relating to the case are as follows : A suit was instituted by the plaintiff for ejectment of the tenant and arrears of rent. The first date of appearance and hearing shown in the summons was 5-4-1977 ; the case was in the court of the Judge Small Causes. On 5-4-1977 the defendant applied for adjournment of the case and the case was adjourned to 10th May, 1977. On this date he filed a tender for the deposit of the amount of admitted rent in accordance with the requirement of Rule 3 of Order XV of the Code as inserted in U. P. The amount in accordance with this tender was deposited on May 12, 1977. The trial court ordered the striking off the defence on the ground that the deposit had not been made on the first date of hearing. The revision filed by the defendant was dismissed on the ground that there was no error of jurisdiction. The defendant has now filed the present revision.
(2.) THE learned District Judge was obviously in error in thinking that he was exercising such powers as are available under Section 115 of the Code while he was dealing with the revision filed under Section 25 of the Provincial Small Cause Courts Act. He considered the case on the basis of the jurisdictional error instead of considering it under the wider scope of Section 25 of the Provincial Small Cause Courts Act. The order of the Munsif is based on three grounds : first, that the tender of money was made not on 5-4-1977 but on 10-5-1977 ; second, that the amount was deposited not on 10-5-77 but on 12-5-1977 ; and third, that the monthly rent was not deposited within a week. The third ground is obviously untenable because the question about deposit of rent for subsequent months could arise only after the deposit of the amount admitted to be due had been accepted. The second ground is also without merit ; it has been held by this Court more than once that a tender of rent amounts to payment and tender followed by deposit is sufficient compliance of Rule 5 of Order XV of the Code. The deposit will therefore be deemed to be made within time if the date of first hearing could be deemed to be May 10, 1977. The question, therefore, that arises in the case is whether May 10, 1977 could be deemed to be the date of the first hearing within the meaning of Rule 5 of Order XV of the Code. Sub-rule (1) of Rule 5 provides ; "(1) In any suit by a lessor for the eviction of a lessee 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 he ad- mits any amount to be due, he shall throughout 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 1. -The expression 'first hearing' means the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned." According to Rule 5 of Order XV of the Code the amount admitted to be due has to be deposited "at or before the first hearing of the suit." This must envisage a date which cannot be prior to the date of admission of the amount by the defendant. The question of striking off the defence can arise only after the defence has been filed and is known. The defence cannot be filed after the date of hearing of the suit. In a court of Small Causes normally the defence is filed on the same date on which the hearing is done, but the defence must precede the hearing. If the court changes the date of filing the defence, automatically the date of hearing is changed. The court cannot strike off the defence unless it knows that the defendant has admitted any amount of rent being in arrears. This also shows the sequence in which the things have to happen. The defence is to be filed first and then alone the question of striking off the defence on the ground of non-deposit of the admitted amount of rent can arise.
(3.) LEARNED counsel for the respondent relied strongly on the Explanation and urged that the date mentioned in the summons must be the date of first hearing. The Explanation has to be read along with the main rule. The intention of the Explanation is to see that the admitted rent is paid before the case proceeds. Rule 5 contemplates the date of first hearing, i.e., the date on which the court wants to hear the case for the first time. If this were not so, the situation will become almost impossible when the court itself does not sit on the date of hearing mentioned in the summons. Section 22 of the Provincial Small Cause Courts Act provides : "When the Judge of a Court of Small Causes is absent and an Additional Judge has not been appointed or, having been appointed, is also absent, the Registrar or other chief ministerial officer of the Court may exercise from time to time the power which the court possesses of adjourning the hearing of any suit or other proceedings, and fix a date for further hearing thereof." The defendant cannot make the deposit of the amount in court if the court is not there. The interpretation therefore of the date of hearing must be in consonance with such a situation. When the law is to be interpreted, it must be interpreted in a manner so that all situations can be covered. Two interpretations cannot be given to date of hearing, one for the situation where the adjournment becomes necessary by the absence of the Presiding Officer, and another, when the Presiding Officer himself changes the date. In a suit instituted in a Court of Small Causes, the summonses are normally issued fixing all the dates together. In this case the date for appearance, for putting in defence or filing the written statement and for hearing was mentioned as April 5, 1977. When the defendant appeared on this date and applied for adjournment of the case, the Court adjourned the hearing and fixed 10th May, 1977 for hearing. The written statement was to be filed in the meanwhile. The court, thereafter, in effect, gave new dates for filing of the written statement and hearing. The question is: if the date of hearing is adjourned by the court and another date of hearing is fixed, which will be deemed to be the date of first hearing 7 It is the jurisdiction of the court to fix a date of hearing ; if the court thinks it proper, it can change that date and fix another date as the date of hearing. When the court passes the order changing the date mentioned in the summons for the hearing of the case, it means that the date of hearing given in the summons had been altered and another date of hearing had been substituted. Any particular date cannot be deemed to be a date of hearing when it is changed and another date is fixed as the date of hearing. It is the latter date which becomes the date of hearing and the earlier date mentioned in the summons ceases to be such a date and must be deemed to have been substituted by the later date. In such a case, it would be the altered or adjourned date that will become the date of first hearing within the meaning of Explanation 1. The adjourned date, i. e., the date which the court finally fixes for the first hearing of the case, must therefore be deemed to be the date of first hearing for purposes of Rule 5 of Order XV of the Code. The amount in the present case must accordingly be deemed to be deposited within the time contemplated by Rule 5 of Order XV of the Code.;