K.N.Singh, J. - (1.) THIS revision application is directed against the decree and order of the Additional District Judge, Muzaffarnagar, setting aside the decree of the Judge, Small Causes Court, and decreeing the plaintiff respondent's suit for defendant-applicant's eviction.
(2.) LALA Narendra Kumar plaintiff-respondent filed a suit before the Judge, Small Causes Court, for the recovery of rent and eviction against Krishan Lal defendant-applicant. The summons issued in the suit were not served on the defendant. Service was, however, effected by publication and the plaintiff's suit was decreed ex parte. Subsequently, on the defendant's application the ex parte decree was set aside by the trial court on 31st July, 1976. On that very day, the trial court fixed 19th October, 1976, for hearing of the suit. The suit could not be taken up on 19th October, 1976, as curfew was imposed in the city of Muzaffarnagar. The trial court fixed 6-1-1977 as the next date of hearing. The defendant deposited the entire amount of rent and damages due from him together with interest at the rate of 9 per cent per annum and also landlord's cost of the suit on 6-1-1977. He made an application before the trial court that since he had deposited rent along with interest and costs of the suit, the plaintiff's suit be dismissed by giving him the benefit of Section 20 (4) of the Act. The trial court upheld the defendant's contention and dismissed the plaintiff's suit. The plaintiff filed a revision under Section 25 of the Small Causes Court Act before the District Judge against the order of the trial court. The revision was allowed by the IVth Additional District Judge, Muzaffarnagar, by his order dated 6-4-1977, and the case was remanded to the trial court with a direction that the suit be registered to its original number for trial and decision according to law. Aggrieved, the defendant has filed this application in revision against the said order. The learned Additional District Judge held that the date of first hearing in the suit was 19th October, 1976, and since the defendant failed to deposit the entire rent and interest thereon as well as costs of the suit as contemplated by Section 20 (4) of the Act, he was not entitled to the benefit of that section and the plaintiff's suit could not be dismissed. The learned Judge placed reliance on the Explanation to sub-section (4) of Section 20 which defines the expression "first hearing". The Additional District Judge committed patent error in interpreting Section 20 (4) of the Act. Primarily, the first date of hearing is the date as mentioned in the summons served on the defendant. After the service of the summons the defendant is under a duty to deposit the entire rent and interest with costs of the suit in order to avail the benefit of Section 20 (4). In a case where the suit is decreed ex parte and after the setting aside of the same, the first date of hearing would be the date fixed for hearing of the suit. In the instant case the court fixed 19th October, 1976, as the first date of hearing of the suit, but on account of the imposition of curfew, parties could not attend the court, as a result of which hearing was adjourned to 6th January, 1977. Admittedly, the case was not taken on 19th October, 1976, and the trial court did not apply its mind to the case as no proceedings took place on that date. The court in the absence of the parties fixed 6-1-1977 as the next date of hearing. The defendant was entitled to make the deposit till 19th October, 1976, but it was not possible to do so on account of the imposition of curfew order over which the defendant had no control. In Bankey Behari v. Gopal Dass, 1977 Alld. Weekly Cases 321 a Division Bench of this Court considered the explanation to sub-section (4) of Section 20 and held that if on a date fixed for hearing of the suit no hearing takes place and the case is adjourned for one reason or the other, the failure of the defendant to deposit the amount on that date would not deprive the defendant of his right to get the benefit of that section by making deposit on the adjourned date of hearing. In Mathura Prasad v. Vikram Jeet Singh, 1978 AWC 523, a learned Single Judge of this court held that if the date of hearing is adjourned by the Court and another date of hearing is fixed, the adjourned date of hearing of the case would be the first date of hearing. These authorities clearly lay down that if the date of first hearing is adjourned, the adjourned date of hearing would be the first date of hearing for the purpose of Section 20 (4) of the Act. The date of hearing in a suit contemplates that the parties to the suit take some step or participate in the hearing of the suit and the Court applies its mind to the questions involved in the suit. Once the hearing of the suit takes place the defendant will not be entitled to avail the benefit of Section 20 (4). But if the date of hearing is adjourned without any proceedings having taken place, the first date of hearing would be the adjourned date of hearing provided the hearing of the suit commences on that date. The crucial test to determine the first date of hearing is to ascertain the date when steps in the proceedings were taken and the Court applied its mind for the first time to the question raised in the suit. Adjournment of the date of hearing without transaction of any business would not mean that the hearing has taken place. If the first date of hearing is adjourned without any steps being taken in the proceedings, the first date of hearing would be the adjourned date. In the instant case, the first date of hearing was 6th January, 1977, as that was the date when the Court applied its mini to the controversy raised in the suit. Since the defendant had already complied with the requirement of Section 20 (4) the trial court rightly dismissed the suit and refused to decree the plaintiff's suit for defendant's ejectment. The Additional District Judge acted with material irregularity in exercising his jurisdiction.
(3.) IN the result, the revision succeeds, the decree and order of the Additional District Judge, is set aside and the decree and order of the trial court is restored. Parties shall bear their own costs. Revision allowed.;