Holding

The first hearing is the date when the court proposes to apply its mind after the defendant has been afforded an opportunity to file a written statement; the tenant paid arrears on that date and therefore is protected by Section 20(4).

Summary

The appeal concerned a suit for recovery of rent arrears and eviction filed by landlords against a tenant under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The trial court held that the first hearing was on 20 May 1980 and dismissed the tenant’s claim of having paid arrears on the first hearing; the appellate courts affirmed. The Supreme Court examined the meaning of "first hearing" in the Explanation to Section 20(4) of the Act and held that it refers to the date when the court proposes to apply its mind after the defendant has been given a chance to file a written statement, not the date fixed for filing the statement. Accordingly, the first hearing was 10 October 1980, on which date the tenant deposited the arrears, satisfying Section 20(4). The Court also held that the definition in the Act prevails over the CPC definition. Consequently, the tenant was entitled to the protection of Section 20(4) and the suit was dismissed. The appeal was allowed.

Issues considered

What is the proper interpretation of "first hearing" under Explanation (a) to Section 20(4) of the U.P. Urban Buildings Act?
Does the tenant’s payment of arrears on 10 October 1980 constitute payment at the first hearing within the meaning of Section 20(4)?
Does the definition in the Act override the definition of "first hearing" in Order XV Rule 5 of the Code of Civil Procedure?

Legislation cited

Code of Civil Procedure, 1908s. Order V Rule 1, s. Order XV Rule 5
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972s. 20(4), s. 30, s. 38

Subjects

first hearingsection 20(4)arrears of renttenant evictionstatutory interpretationU.P. Urban Buildings Actcivil procedurelandlord-tenant dispute

Judgment

A ASHOK KUMAR AND ORS.
v.
RISH! RAM AND ORS.

JULY 8, 2002

B [SYED SHAH MOHAMMED QUADRI AND S.N. V ARIA VA, JJ.]

UP. Urban Buildings (Regulation of letting, Rent and Eviction) Act,
1972:

C Section 20(4)-Suit for payment of arrears or rent-Payment of arrears
of rent on the date for final disposal of case after adjournments for filing
written statement-Whether arrears paid on first hearing-Held, yes, tenant
entitled to the benefit of the provision.

Section 20(4) Explanation (a)-"first hearing"-Meaning of-It is the
D first date when the Court proposes to apply its mind and not the date when
it actually applies its mind-Definition contained in the provision will prevail
over the definition contained in Rule 5 of Order XV CPC-Code of Civil
Procedure, 1908-0rder XV, Rule 5 Explanation I.

Words and Phrases:
E
''First hearing"-Meaning of in the context ofSection 20(4) UP. Urban
Buildings (Regulation of letting, Rent and Eviction) Act, 1972.

Suit for recovery of the arrears of rent and for ejectment of the
tenant (predecessor of appellant and respondent No. 3) filed by the
F landlords (Respondent Nos. 1 and 2) was posted for final disposal on
20.5.1980. But time was extended upto 25.7.1980 and again upto 10.10.1980
for filing written statement by the tenant and then the case was posted
for final disposal on 10.10.1980. Tenant deposited all the arrears of rent
on 10.10.1980. The case was again adjourned to 5.12.1980 due to non-
G availability of judge. Tenants contested the suit stating that the suit was
liable to be dismissed in view of Section 20(4) of U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972 as they had deposited
the arrears of rent on the first hearing of the suit.

Trial court, appellate court as well as High Court decided the case
H against the tenants holding that they had failed to deposit arrears of rent
1158
ASHOK KUMAR v. RISH! RAM 1159
on· the first hearing i.e. 20.5.1980. Hence the appeal. A
Allowing the appeal, the Court

HELD: I. In view of section 38 of UP. Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972, the definition contained in clause
(a) of Explanation to sub-section (4) of Section 20 of U.P. Act will prevail B
over the definition contained in Rule 5 of Order XV of the CPC as
applicable to the State of U.P. It is too evident to miss that in contra-
.distinction to the "filing of written statement" mentioned in the definition
• of the said expression contained in Rule 5 of Order XV CPC, the language
employed in clause (a) of the Explanation to Section 20(4) of the U.P. Act,
refers to "the first date for any step or proceeding mentioned in the C
Summons served on the defendant". Those words mean the first date when
the Court proposes to apply its mind to identify the controversy in the
suit and that stage arises after the defendant is afforded an opportunity
to file his written statement. 11163-E-FJ

Siraj Ahmad Siddiqui v. Prem Nath Kapoor, J1994J 4 SCC 406; Advaita
D
Nand v. Judge, Small Cause Court, Meerut and Ors., J1995J 3 SCC 407 and
Sudershan Devi and Anr. v. Sushi/a Devi and Anr., J1999J 8 SCC 31, relied
on.

2. In the present case the suit was posted on May 20, 1980 for final E
disposal but that date cannot be treated as the first hearing of the suit as
the Court granted time till July 25, 1980 to the tenant for filing written
statement. On July 25, 1980 time was extended for filing written statement
and the suit was again adjourned for final disposal to October 10, 1980,
Inasmuch as alter giving due opportunity to file written statement the suit
was posted for final disposal on October 10, 1980 it was that date which F
' ought to be considered as the date fixed by the Court for applicati?n of
its mind to the facts of this case to identify the controversy between the
parties and as such the date of first hearing of the suit. Admittedly, on
that date the appellant-tenant deposited all the arrears of rent. Though,
the suit was again adjourned to December 5, 1980, it would be irrelevant G
because the date of first hearing of the suit is the date when the court
proposes to apply its mind and not the date when it actually applies its
mind, It follows that the first hearing of the suit would not change on every
adjournment of the suit for final disposal. The effective date of the first
· hearing of the suit on wh.ich the Court proposed to apply its mind, on the
facts of the case, was October 10, 1980. The amount of arrears of rent H
1160 SUPREME COURT REPORTS l2002] 3 S.C.R.

A having been paid on that date, there is compliance of sub-section (4) of
Section 20 of the U.P. Act so the tenant is entitled to the benefit of the
said provision. 11165-E-Hl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3642 of
2002.
B
From the Judgment and Order dated 3.8.2001 of the Allahabad High
Court in CMWP No. 10594/85.

Rani Chhabra, for the Appellants. •

C Ashok K. Srivastava for the Respondent.

The Judgment of the Court was delivered by

SYED SHAH MOHAMMED QUADRI, J. Leave is granted.

This appeal is from the judgment and order of the High Court of
D Judicature at Allahabad in CMWP No. 10594 of 1985 made on August 3,
2001.

A summary of facts leading to filing of this appeal may be noted to
appreciate the controversy in this appeal. The dispute arises under the U.P.
Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for
E short 'the U.P. Act'). The appellants and the 3rd respondent are legal
representatives of the tenant late Jai Prakash who died after institution of the
suit (hereinafter referred to as the 'tenant') and Respondents 1 and 2 are the
landlords (hereinafter referred to as the 'landlords') of Shop No. 219, Main
Bazar, Ward No. 9, Murad Nagar consisting of four chamb!!rs out of which
F two were covered with roof and two at 'the back without roof and saiban (for
short~ 'the suit building'). They purchased it from late Gopi Chand, the
previous landlord. The suit building was let out to the said Jai Prakash on a
monthly rent of Rs. 37.50. Alleging that the rent for the months of May, June
and July, 1976 was not paid, the landlords sent a notice of demand for arrears
of rent on March 30, 1977. In 1979, they filed the suit, out of which this
G appeal arises, against the said Jai Prakash for recovery of arrears of rent and
damages for the period from May 27, 1976 to February 22, 1978 and his
ejectment from the suit building in the Small Cause Court, Ghaziabad. After
service of summons the suit was adj~urned to May 20, 1980 for final disposal.
On that day the tenant sought time for filing written statement so the suit was
H adjourned to July 25, 1980 when time was, however, extended for filing
ASH OK KUMAR v. RISHI RAM [SYED SHAH MOHAMMED QUADRI, J.] 1161

written statement and the suit was posted for final disposal on October 1O, A
1980. The hearing of the suit was not taken up on that date as the Presiding
Officer was on judicial training but the tenant deposited the entire a1nount in
demand. Eventually, the suit was again adjourned to December 5, 1980. The
tenant contested the suit alleging that the landlords refused to receive the rent
and pleaded that as he had deposited the arrears of rent at the first hearing B
of the suit, in view of the provisions of Section 20(4) of the U.P. Act, the suit
has to be dismissed.

The learned Trial Judge took the view that the first date of hearing of
the suit was May 20, 1980 when the tenant did not deposit the arrears of rent,
he, therefore, decreed the suit on January 6, 1984. The tenant carried the C
matter in revision before the learned IV Additional District Judge, Ghaziabad.
Affinning the order of the learned Trial Judge the revision was ultimately
dismissed on May 20, 1985. The tenant then challenged the validity of the
said order of the learned IV Additional District Judge in the aforementioned
writ petition in the High Court of Judicature at Allahabad, which was also
dismissed on August 3, 2001, upholding the order impugned therein. Against D
that order of the High Court the tenant is in appeal before us.

In the light of the rival contentions of the learned counsel for the
partie5 the ticklish question that arises for consideration is : whether the
tenant paid the rent at the first hearing of the suit within the meaning of sub-
section (4) of Section 20 of the U.P. Act. ·E

It may be mentioned that Section 20 of the U.P. Act bars a suit for
eviction of a tenant except on the grounds specified in sub-section (2) thereof.
The first ground, mentioned in clause (a) of sub-section (2), is that a tenant
is in arrears of rent for not less than four months and has failed to pay the
same to the landlord within one month from the date of service upon him of F
a notice of demand. The rigour of this permissible ground for eviction of .
tenant is substantially whittled down by sub-section (4) of Section 20 which
is in the following terms :

"20. Bar of suit for eviction of tenant except on specified grounds
G
(I) to (3) ************
(4) In any suit for eviction on the ground mentioned in clause (a) of
sub-section (2), if at the first hearing of the suit the tenant
unconditionally pays or [tenders to the landlord or deposits in court]
the entire amount of rent and damages for use and occupation of the H
1162 SUPREME COURT REPORTS [2002] 3 S.C.R.

A building due from him (such damages for use and occupation being
calculated at the same rate as rent) together with interest thereon at
the rate of nine per cent per annum and the landlord's costs of the
suit in respect thereof, after deducting therefrom any amount already
deposited by the tenant under sub-section (I) of Section 30, the court
may, in lieu of passing a decree for evicti?n on that ground, pass an
B order relieving the tenant against his liability for eviction on that
ground;

Provided that nothing in this sub-section, shall app_ly in relation
to a tenant who or any member of whose family has built or has
otherwise acquired in a vacant state, o.r has got vacated after
c acquisition, any residential building in the same city, municipality,
notified area or town area.

Explanation - For the purposes of this sub-section -

(a) the expression "first hearing" means the first date for any step or
D proceeding mentioned in the summons served on the defendant;
(b) *** *** ***"
A perusal of the sub-section, quoted above, discloses that in any suit
for eviction on the ground mentioned in clause (a) of sub-section (2) of
E Section 20 if the tenant unconditionally pays or tenders to the landlord or
deposits in court the entire amount of rent and damages for use and occupation
of the building due from him at the first hearing of the suit (such damages
for use and occupation being calculated at the same rate as rent) together
with interest thereon at the rate of nine per cent per annum and the landlord's
costs of the suit in respect thereof, after deducting therefrom any amoun't
F already deposited by the tenant under sub-section (1) of Section 30, the court
is empowered to pass an order relieving the tenant against his liability for
eviction on the aforementioned ground in lieu of passing a decree for eviction.
The expression "first hearing" is defined in clause (a) of the Explanation
appended to the said sub-section to mean the first date for any step or
G proceeding mentioned in the summons served on the defendant. The question
that needs to be resolved here is : what is the import of clause (a) of the
Explanation defining the expression "first hearing"? Inasmuch as the definition
in clause (a) refers to any step or proceeding mentioned in the summons
served on the defendants, it would be useful to refer to the provisions of
Order V of Code of Civil Procedure insofar as they are relevant for our
H purpose.
l

ASHOK KUMAR v. RISH! RAM [SYED SHAH MOHAMMED QUADRI, J.J 1163

Rule I of Order V speaks of issue of summons. When a suit has been A
duly instituted a summons may be issued to the defendant to appear and
answer the claim on a day specified therein. Rule 2 thereof enjoins that the
summons shall be accompanied by a copy of the plaint or, if so permitted,
by a concise statement. Rule 5 of Order V says that the Court shall determine,
at the time of issuing the summons, whether it shall be for the settlement of B
issues only, or for the final disposal of the suit which shall be noted in the
summons. However, in every suit heard by a Court of Small Causes, the
summons shall be for the final disposal of the suit. It may be apt to notice
• here that sub-section (3) of Section 20 of the Act was deleted in U.P. Civil
Laws Amendment Act, 1972 with effect from September 20, 1972 and Rule
5 was inserted in Order XV of the Civil Procedure Code which deals with C
disposal of the suit at the first hearing. Explanation I to Rule 5 of Order XV
defines the expression "first hearing" to 1nean the d.ate for filing written
statement or for hearing mentioned in the surn1nons or where more th~n one
of such dates are mentioned, the last of the dates mentioned. But the said
expression, as noticed. above, is defined in clause (a) of Explanation to sub-
section (4) of Section 20. Section 38 of the U.P. Act says that the provisions D
of the said Act shall have effect notwithstanding anything inconsistent
therewith contained in the Transfer of Property Act or in the Code of Civil
Procedure, therefore, the definition contained in clause (a) of Explanation to
sub-section (4) of Section 20 of the Act will prevail over the definition
contained in Rule 5 of Order XV of the Code of Civil Procedure as applicable E
to the State of U.P. It is too evident to miss that in contra-distinction to the
"filing of written staten1ent'' mentioned in the definition of the said expression
contained in Rule 5 of Order XV, the language employed in clause (a) of the
Explanation to Section 20(4) of the U.P. Act, refers to 'the first date for any
step or proceeding mentioned in the summons served on the defendant'. In
our view those words mean the first date when the court proposes to apply F
its mind to identify the controversy in the suit and that stage arises after the
defendant is afforded an opportunity to file his written statement. The
controversy is no longer res integra. The aforementioned provisions fell for
consideration of a three-Judge Bench of this Court in Siraj Ahmad Siddiqui
v. Prem Nath Kapoor, [ 1993] 4 SCC 406. The Bench laid down as follows: G
"The date of first hearing of a suit under the Code is ordinarily
understood to be the date on which the court proposes to apply its
. mind to the contentions in the pleadings of the parties to the suit and
in the documents filed by them for the purpose of framing the issues
to be decided in the suit. Does the definition of the expression "first H
1164 SUPREME COURT REPORTS [2002] 3 S.C.R.

A hearing" for the purposes of Section 20( 4) mean something different?
The step or proceeding mentioned in the summons referred to in the
definition should, we think, be construed to be a step or proceeding
to be taken by the court for it is, after all, a "hearing" that is the
subject-matter of the definition, unless there be something compelling
in the said Act to indicate otherwise; and we do not find in the said
B Act any such compelling provision. Further, it is not possible to
construe the expression "first date for any step or proceeding" to
mean the step of filing the written statement, though the date for that
purpose may be mentioned in the summons, for the reason that, as set
out earlier, it is permissible under the Code for the defendant to file
c a written statement even thereafter but prior to the first hearing when
the court takes up the case, since there is nothing in the said Act
which conflicts with the provisions of the Code in this behalf. We are
of the view, therefore, that the date of first hearing as defined in the
said Act is the date on which the court proposes to apply its mind to
determine the points in controversy between the parties to the suit
D and to frame issues, if necessary."

In that case the suit was filed for ejectment of the tenant under clause
(a) of sub-section (4) of Section 20 of the U.P. Act. The Trial Court issued
summons to the tenant requiring him to file written statement by February
E 22, 1984 specifying February 28, 1984 for framing of issues. On February
24, 1984, the tenant made to the Trial Court an application stating that he had
not been served with the summons and that he should be given a suitable date
for filing the written statement and deposit of rent. He was granted a month's
time. However, on the very next day the tenant deposited the rent in part. For
depositing the balance of the arrears of rent he filed an application on March
F 2, 1984 which was contested on the ground that the Court had no power to
extend the time for deposit of arrears of rent beyond the first hearing of the
suit. The court allowed the application without prejudice to the landlord's
objection. The tenant then deposited the balance of the arrears of rent on
March 5, 1984. In that context this Court construed the definition of the
G expression the "first hearing" in clause (a) of the Explanation to Section
20(4) of the U.P. Act.

Jn Advaita Nand v. Judge, Small Cause Court, Meerut and Ors. [1995]
3 SCC 407, the same provisions of the U.P. Act again came up for
consideration of this Court. Siraj Ahmad Siddiqui's case (supra) was sought
H to be distinguished on the ground that therein the Court was dealing with an
ASHOK KUMAR v. RISH! RAM [SYED SHAH MOHAMMEDQUADRl.J.] J !65

ordinary civil suit governed by the provisions of the Code of Civil Procedure A
requiring framing of issues whereas in that (Advaita Nand) case the suit was
· filed before the Judge, Small Cause Court wherein issues were not required
to be framed for the trial of such a suit. This Court rejected the contention
and followed Siraj Ahmad Siddiqui's case (supra) observing thus :

"Even though issues are not required to be framed and the date is B
fixed for the purpose of final hearing of the suit filed before the
Small Cause Court but for the purpose of such suit also, first hearing
;
of the suit would mean the date on which the Court proposes to apply
its mind i.e. the date fixed for final hearing of the suit and it cannot
be the date fixed for fi:ing the written statement." C
In Sudershan Devi and Anr. v. Sushi/a Devi and Anr., [1999] 8 SCC
31 ], the aforesaid provisions of the U.P. Act were sought to be pressed into
service to non-suit the landlord. This Court followed the dicta in Siraj Ahmad
Siddiqui 's case, quoted above; however, on the facts it was found that the
amount of arrears of rent was not deposited on time (at the first hearing). D
Now adverting to the facts of the case on hand it has been noticed
above that the suit was posted on May 20, 1980 for final disposal but that
date cannot be treated as the first hearing of the suit as the Court granted time
till July 25, 1980 to the tenant for filing written statement. On July 25, 1980
time was extended for filing written state1nent and the suit was again adjourned E
for final disposal to October 10, 1980. Inasmuch as after giving due opportunity
to file written statement the suit was posted for final disposal on October I 0,
1980 it was that date which ought to be considered as the date fixed by the
Court for application of its mind to the facts of this case to identify the
controversy between the parties and as such the date of first hearing of the
., suit. Admittedly, on that date the appellant-tenant deposited all the arrears of F
rent. Though, the suit was again adjourned to December 5, 1980, it would be'
irrele"vant because the date of first hearing of the suit is the date when the
court proposes to apply its mind and not the date when it actually applies its
mind. It follows that the first hearing of the suit would not change on every
adjournment of the suit for final disposal. The effective date of the first G
hearing of the suit on which the .Court proposed to apply its mind, on the
facts of the case, was October I 0, 1980, as stated above. The amount of
arrears of rent having been paid on that date, there is compliance of sub-
section (4) of Section 20 of the U.P. Act so the tenant is entitled to the benefit
of the said provision.
H
)

1166 SUPREME COURT REPORTS [2002] 3 S.C.R.

A In this view of the matter we are unable to sustain the order under ..
challenge. The impugned order of the High Court upholding the order of the
IV Additional District Judge which confirmed the order of the learned Trial
Judge, is set aside. The suit of the respondents-landlords shall stand dismissed.
The appeal is accordingly allowed. In the facts and circumstances of the case,
we make no order as to cost.
B
K.K.T. Appeal allowed.