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Beni Madhav Mishra and anr. Vs. Shiv Govind and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1537 of 1975
Judge
Reported inAIR1979All359
ActsCode of Civil Procedure (CPC) , 1908 - Order 15, Rule 5; Uttar Pradesh Code of Civil Procedure (CPC) (Amendment) Act, 1972
AppellantBeni Madhav Mishra and anr.
RespondentShiv Govind and ors.
Appellant AdvocateS.P. Srivastava, Adv.
Respondent AdvocateT.N. Purmar, Adv.
DispositionRevision allowed
Excerpt:
civil - making deposits - order 15 rule 5 of code of civil procedure, 1908 - hearing in case postponed - cannot be said that deposit was to be made earlier - deposit under rule 5 must be made on or before first hearing - first hearing means when court started to apply its mind to the case - when adjourned - court does not apply its mind - this would apply when hearing is adjourned without transacting any business - held, when suit was fixed for hearing and adjourned and on date of hearing defendant deposited security defense can not be struck off. - - in fact, if evidence is taken the object of order 15, rule 5 is likely to be defeated......the case did not proceed and was adjourned on the ground of the illness of the defendant. next date fixed was 29th aug., 1974. on this date the defendant moved an application no. 55-d asking the plaintiff to disclose material particulars. the hearing of the case did not take place even on that date and was adjourned to 26th sept., 1974, for the disposal of the application no. 55-d. on 26-9-1974 the defendant sought adjournment and 19-12-1974, was fixed. as the defendant did not appear on 19-12-1974, the application no. 55-d was rejected. thereafter, three other dates were fixed for final hearing, but on all these three dates the suit was adjourned. ultimately, the suit was fixed for hearing on the 20th march, 1975. on that date the defendant deposited the entire arrears of rent and.....
Judgment:
ORDER

K.C. Agrawal, J.

1. This revision is directedagainst the judgment of the DistrictJudge, Etawah dated 18th Aug., 1975.

2. Suit No. 254 of 1972 had been filed by the plaintiff-opposite party for eviction, recovery of arrears of rent and damages. After the enforcement of the U. P. Civil Laws (Amendment) Act No. 37 of 1972, the suit was fixed for hearing for the 28th Feb., 1974. On that date the hearing was adjourned to 16th May, 1974. The case did not proceed and was adjourned on the ground of the illness of the defendant. Next date fixed was 29th Aug., 1974. On this date the defendant moved an application No. 55-D asking the plaintiff to disclose material particulars. The hearing of the case did not take place even on that date and was adjourned to 26th Sept., 1974, for the disposal of the application No. 55-D. On 26-9-1974 the defendant sought adjournment and 19-12-1974, was fixed. As the defendant did not appear on 19-12-1974, the application No. 55-D was rejected. Thereafter, three other dates were fixed for final hearing, but on all these three dates the suit was adjourned. Ultimately, the suit was fixed for hearing on the 20th March, 1975. On that date the defendant deposited the entire arrears of rent and damages for use and occupation.

3. The plaintiff, however, filed an application for striking off the defence on the ground that as the defendant had not deposited the rent on the first hearing,the defence was liable to be struck out. The application was accepted by the Judge Small Cause Court and the defence was struck off. While striking off the defence, the Judge Small Causes Court held that 28th Feb., 1974 was the first hearing and that the defendant ought to have deposited the rent on that date. Aggrieved, the defendant went up in revision under Section 25 of the Provincial Small Cause Courts Act. The revision was dismissed. Hence this second revision.

4. The question that arises for consideration is as to whether 28th Feb., 1974 could be considered as the date of first hearing. It would be remembered that on this date the cause had been received after the enforcement of U. P. Act No. 37 of 1972 and that the issues had been framed before it. This date had been fixed for final hearing but the suit was adjourned to various dates the details of which have already been given above. It would be found from those details that the Court did not apply its mind, to the controversy. Before it could apply its mind, the deposit had been made.

5. The learned District Judge had held that as the 28th Feb., 1974 had been fixed for final hearing, the compliance of Order 15, Rule 5, C. P. C. should have been made on that date. According to his view, due to non-compliance of the said provision on that date the written statement was liable to be struck out.

6. Under Order 15, Rule 5, C. P. C., atenant is entitled to deposit the arrears of rent on or before the first hearing. The words as used in Order 15, Rule 5 mean that it should be prior to the hearing. The meaning of the word 'first hearing' has been a subject-matter of decision in various cases. In Ladlay Prasad v. Shriram Shah Billa (1975 All WC 602) a Division Bench held that 'after the framing of the issues the case is ready for hearing. This is the stage when Rule 5 of Order 15 comes into play.' This gave rise to a controversy whether the date of filing of written statement may also be the date of hearing. In Bankey Bihari v. Gopal Dass (1977 AH WC 321) a Division Bench observed :--

'It is conceivable that the date of filing written statement may also be the date of hearing but that will be so only because the summons issued to the defendant fixing the date for filing written statement discloses that it is also the date for hearing. In such a case the date becomes the date for hearing not becauseit is the date for filing the written statement but because it is also the date fixed for hearing.'

In the instant case, however, we are not concerned whether the date fixed for filing written statement is a date for hearing inasmuch as the written statement had been filed much before the enforcement of U. P. Act No. 37 of 1972. The controversy only was whether the date fixed for final hearing, which had been adjourned, could be considered to be the date of first hearing. If a date in a suit is adjourned the necessary consequence is that the case is put off or postponed for another date. If the hearing is postponed, it cannot be said that the date fixed earlier was a date at which deposit must have been made inasmuch as under Order 15, Rule 5 a deposit can be made on or before the first hearing of the suit The adjourned date will be as much a date for first hearing of the suit as the date fixed prior to it. Accordingly, the deposit under Order 15, Rule 5, C. P. C. can be made on the adjourned date. The expression 'first hearing' indicates that it must have been a date on which the Court applied its mind to the case. Where a hearing is adjourned and a Court has no occasion to apply its mind, that cannot be considered to be a date of first hearing. It is, however, necessary to mention that the aforesaid proposition would apply only to a case where the hearing is adjourned without transacting any business. It does not mean that only when the evidence has been taken that a date can be called to be a date of first hearing. In fact, if evidence is taken the object of Order 15, Rule 5 is likely to be defeated.

7. It may, however, be mentioned that Order 15, Rule 5, C. P. C. has now been amended by U. P. Act No. 57 of 1976. By the amendment made the Legislature has made it clear that 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 date mentioned. However, we are not concerned with this amended provision.

8. For all these reasons, I hold that since 20th March, 1975 was fixed for final hearing and as on that date the defendant deposited the entire rent which had been due from him, the defence was not liable to be struck out.

9. In the result, the revision succeeds and is allowed. The orders of the District Judge, Etawah dated 18-8-1975 and thatof the Judge Small Cause Court dated 2-4-1975 are set aside and the Judge Small Causes is directed to decide the suit in accordance with law. As the suit had been filed in the year 1969, it appears appropriate that a direction be given to the Judge Small Causes for deciding the same expeditiously. In the circumstances, I direct the parties to bear their own costs.


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