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Rahat Ali Vs. Daya Shankar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 80 of 1980
Judge
Reported inAIR1980All300
ActsCode of Civil Procedure (CPC) , 1908 - Order 15, Rule 5, 5(1) and 5(2); Uttar Pradesh Code of Civil Procedure (CPC) (Amendment) Act, 1976; Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 20(4); Provincial Small Cause Courts Act, 1887 - Sections 25
AppellantRahat Ali
RespondentDaya Shankar and anr.
Advocates:Vishnu Sahai and ;B. Dayal, Advs.
DispositionPetition dismissed
Excerpt:
(i) civil - striking out of defence - order 15 rule 5 code of civil procedure, 1908 and sub-section(4) of section 20 of u.p. urban buildings(regulation of letting, rent and eviction) act, 1972 - suit for ejectment and rent arrears in small causes court - date of first hearing is when the written statement filed - no representation is made - deposit not made according to sub-section(4) of section 20 - held, order striking out of defence is proper and benefit of sub-section(4) of section 20 not available. (ii) revision - section 25 of provincial small causes courts act, 1887 - finding of fact on the basis of appraisal of evidence - revision not maintainable. - .....for disposal of the case. this being a small cause court suit 5th dec. 1978 would be the first date of hearing. at this place i may point out that it was urged by counsel for the applicant that since the case was adjourned on several dates and written statement was ultimately filed on 18th august, 1979 it is this date which should be treated as the first date of hearing. even if this submission is accepted for the sake of argument, it would be seen that no deposit was made by the applicant as contemplated by order 15, rule 5, civil p. c. on 18th august, 1979. the power to extend the time for making a deposit it subject to the fulfilment of the requirement of sub-rule (2) of order 15, rule 5, c. p.'c. which provides that before making an order for striking off the defence, the court.....
Judgment:
ORDER

N.D. Ojha, J.

1. A suit for ejectment and arrears of rent was instituted against the applicant by opposite parties 1 and 2 in the court of Second Additional District Judge acting as Judge Small Causes. The defence of the applicant was struck off as contemplated by Order 15, Rule 5, C. P. C. and on the basis of the evidence produced by the opposite parties, the suit was decreed. This revision under Section 25 of the Provincial Small Cause Courts Act challenges the said decree.

2. It was urged by the counsel for the applicant that the defence of the applicant was erroneously struck off, I, however, find myself unable to agree with this submission. It was a Small Cause Court suit and it appears from the order of the Additional District Judge that 5th December, 1978 was the first date fixed in the case and the applicant put in appearance on that date. Instead of filing his written statement and complying with the requirements of Order 15, Rule 5, Civil P. C. the applicant took several adjournments and filed his written statement ultimately on 18th August, 1979. Even on that date no amount was deposited as contemplated by Order 15, Rule 5, C. P. C, It further appears that some amount had been deposited on 13th November, 1979, i.e. about three months, even after the date on which the written statement was actually filed. On the basis of certain decisions it was urged that Order 15, Rule 5, C, P. C, contains a discretionary provision and since the amount had been deposited on 13th November, 1979, the court below should not have struck off the defence of the applicant. I do not find it necessary to consider In detail those authorities in view of the amendment made in Order 15, Rule 5, C. P. C. by the State of Uttar Pradesh, by U. P. Act No. 57 of 1976, which was applicable to the instant case, the suit having been filed in 1978 being Suit No. 4 of 1978 and which in my opinion has altered the legal position prevailing earlier. Explanation I to Sub-rule (1) provides that expression first hearing means the date of filing written statement or any hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. In Balmukund v. District Judge (1977 All WC 225) it was held that in a regular suit the first hearing is the date of settlement of issues whereas in Small Cause Courts suits the first hearing is the very first date fixed for disposal of the case. This being a Small Cause Court suit 5th Dec. 1978 would be the first date of hearing. At this place I may point out that it was urged by counsel for the applicant that since the case was adjourned on several dates and written statement was ultimately filed on 18th August, 1979 it is this date which should be treated as the first date of hearing. Even if this submission is accepted for the sake of argument, it would be seen that no deposit was made by the applicant as contemplated by Order 15, Rule 5, Civil P. C. on 18th August, 1979. The power to extend the time for making a deposit it subject to the fulfilment of the requirement of Sub-rule (2) of Order 15, Rule 5, C. P.'C. which provides that before making an order for striking off the defence, the court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or on the expiry of the week referred to in Sub-section (1), as the case may be. On a careful consideration of Sub-rule (1) and Explanation I thereto and Sub-rule (2) of Order 15, Rule 5, Civil P. C. as amended by U. P. Act 57 of 1976, I am of opinion that the discretion to extend the time for making a deposit contemplated by the said Rule beyond the date of first hearing vests in the the court only if a representation is made within the period prescribed by Sub-rule (2). If no representation is made within that period or if a representation is made and is rejected, the requirement of striking off the defence, in view of the scheme of the amended Order 15, Rule 5, Civil P. C. seems to be mandatory. The view which I take that the provisions of the amended Rule are mandatory, finds support from a decision of a learned single Judge in Sohan Lal v. Hodal Singh reported in (AIR 1979 All 230). It is not the case of the applicant that any representation for extension of time was made by him within the period prescribed by Sub-rule (2) of Order 15, Rule 5, Consequently, it cannot be said that the lower court committed any error of law in striking off the defence of the applicant.

3. It was then urged that having made the necessary deposit on 13th November, 1979, the applicant was entitled to the benefit of Sub-section (4) of Section 20 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. I am unable to agree with this submission either. The benefit of Sec. 20 Sub-section (4) of U. P. Act No, 13 of 1972 was also not available to the applicant in as much as that benefit is available only if the necessary deposit contemplated by the said Sub-section is made at the first hearing of the suit. The deposit made on 13th November, 1979 cannot obviously be treated as a deposit made either on 15th December, 1978 which was the date of first hearing or even, on 18th August, 1979 which, according to the applicant's counsel, should be deemed to be the date of first hearing. In this connection it would be useful to notice Explanation (a) to Section 20 (4) of U. P. Act 13 of 1972 which provides that for the purposes of this Sub-section the expression 'first hearing' means the first date for any step or proceeding mentioned in the summons served on the defendant. In the instant case this date would obviously be 15th December, 1978.

4. In regard to the merits of the case, the findings recorded by the Additional District Judge are findings of fact based on appraisal of evidence and cannot be challenged even in a revision under Section 25 of the Provincial Small Cause Courts Act.

5. In the result, I find no merit In this Civil Revision and it is accordingly dismissed and the interim order of stay dated 11th February, 1980 is vacated.


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