# Krishna Kumar Gupta v. A.D.J., Allahabad & others

- **Citation:** (2005) 1 ILRA 162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-09-23
- **Case number:** Civil Misc. Writ Petition No. 37966 of 1999
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-kumar-gupta-v-a-d-j-allahabad-others-40341
- **Pages:** 6

## Headnote

Act,
1972-S.
20
(4)
Explanation-Deposit under-Date of first
hearing-Would be date of filing W.S. by
tenant-Till that date no application by
tenant for adjustment of deposit made
under S. 17 of PSCC Act-Subsequent
amendment in W.S. seeking adjustment
o entire amount of Rs. 15,000/- may be
taken to be a deposit made on date of
amendment application on date on which
was
allowed-both
these
dates
are
subsequent to date of filing W.S.-
Admission in W.S. that defendant was
deposited-Thus by date of filing W.S. i.e.
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1All] Krishna Kumar Gupta V. A.D.J., Allahabad and others
163
16.5.1994, complete deposit as required
under S.20 (4), had not been made not
entitled for any benefit of the statutory
petition.

Held: Para 9 & 10

In view of the above authority of the
supreme court of Ashok Kumar it is quite
clear that 30.11.1993 cannot be held to
be the date for first hearing as by that
date plaint had not been supplied to the
defendant. Applying the said authority it
becomes clear that 16.5.1994 was the
date of first hearing in the instant case
as the said date had been fixed for
hearing on 9.5.1994 on which date
(9.5.1994) tenant-petitioner had filed
written statement.

Accordingly, even though I do not agree
with the courts below that 30.11.1993
was the date of first hearing still the writ
petition is liable to be dismissed on the
ground that 16.5.1994 was the date of
first hearing but even on that date
complete deposit had not been made.
Case law discussed:
AIR 1989 SC 1070
1982 AWC 701 (DB)
AIR 1993 SC 2525
(1995) 3 SCC 407
AIR 1999 SC 3688
AIR 2002 SC 955
AIR 2002 SC 2520

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
162
The Deputy Registrar was under legal
obligations, who has referred the said
dispute for adjudication under Section 25
(1) of the Societies Registration Act as
has been repeatedly held by this Court in
the judgment reported in (1999) 2
UPLBEC 77 (Committee of Management
Versus Secretary, Arya Kanya Inter
College) and 2003(3) Education &
Service Cases (Allahabad) 1617 (Sitaram
Rai
and
others
Versus
Additional
Registrar, Firm, Societies and Chits,
Gorakhpur Division, Gorakhpur and
others). The relevant portion of the
judgment in the case of Sita Ram Rai
reads as follows:

"The election disputes, if any,
including validity of members entitled to
vote can only be decided under Section
25 (1) by the Prescribed Authority and
that any person aggrieved thereafter has
a right to approach Civil Court."

26. The order passed by the Deputy
Registrar, Firms, Societies and Chits,
Agra, U.P. is wholly without jurisdiction.
The dispute with regard to the two rival
elections set up by the parties must
necessarily be referred by the Deputy
Registrar to the Prescribed Authority
within one month from the date a certified
copy of this order is filed before him. It is
further provided that the Prescribed
Authority shall proceed to decide the
dispute so referred at the earliest possible
after affording opportunity of hearing of
the parties and after permitting the
exchange of documents within a period of
three months from the date of such
reference.

27. In view of the findings recorded
hereinabove, it is apparently clear that the
impugned order of the Deputy Registrar
dated 19th November, 2003 is without
jurisdiction and cannot be sustained and is
hereby quashed, a writ of mandamus is
issued the Deputy Registrar, Firms,
Societies and Chits, Agra, U.P. is directed
to refer the dispute for adjudication to the
Prescribed Authority under Section 25(1)
of the Societies Registration Act within
one month from the date a certified copy
of this order is produced before him.

The
present
writ
petition
is,
accordingly, allowed.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2004

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 37966 of 1999

Krishna Kumar Gupta
...Petitioner
Versus
A.D.J., Allahabad & others...Respondents

Counsel for the Petitioner:
Sri R.N. Kesari

Counsel for the Respondents:
S.C.

U.P. (Regulation of Letting, Rent and
Eviction)
Act,
1972-S.
20
(4)
Explanation-Deposit under-Date of first
hearing-Would be date of filing W.S. by
tenant-Till that date no application by
tenant for adjustment of deposit made
under S. 17 of PSCC Act-Subsequent
amendment in W.S. seeking adjustment
o entire amount of Rs. 15,000/- may be
taken to be a deposit made on date of
amendment application on date on which
was
allowed-both
these
dates
are
subsequent to date of filing W.S.-
Admission in W.S. that defendant was
deposited-Thus by date of filing W.S. i.e.
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1All] Krishna Kumar Gupta V. A.D.J., Allahabad and others
163
16.5.1994, complete deposit as required
under S.20 (4), had not been made not
entitled for any benefit of the statutory
petition.

Held: Para 9 & 10

In view of the above authority of the
supreme court of Ashok Kumar it is quite
clear that 30.11.1993 cannot be held to
be the date for first hearing as by that
date plaint had not been supplied to the
defendant. Applying the said authority it
becomes clear that 16.5.1994 was the
date of first hearing in the instant case
as the said date had been fixed for
hearing on 9.5.1994 on which date
(9.5.1994) tenant-petitioner had filed
written statement.

Accordingly, even though I do not agree
with the courts below that 30.11.1993
was the date of first hearing still the writ
petition is liable to be dismissed on the
ground that 16.5.1994 was the date of
first hearing but even on that date
complete deposit had not been made.
Case law discussed:
AIR 1989 SC 1070
1982 AWC 701 (DB)
AIR 1993 SC 2525
(1995) 3 SCC 407
AIR 1999 SC 3688
AIR 2002 SC 955
AIR 2002 SC 2520

(Delivered by Hon'ble S.U. Khan, J.)

1. The only point involved in this
writ petition relates to interpretation of
"first hearing" as given in the Explanation
to Section 20 (4) of U.P. Rent Control Act
(U.P. Act No. 13 of 1972) hereinafter
referred to as Act, and its applicability
upon the facts of the instant case.

2. The suit giving rise to the instant
writ petition was filed by landlady
respondent no. 3 against the tenant
petitioner on 8.9.1993. The suit was
registered as SCC Suit No. 162 of 1993
on the file of JSCC Allahabad (Later on
suit
was
transferred
to
Additional
J.S.C.C.). Prior to filing of the suit
tenancy was determined through noticedated 13.4.1993, served upon the tenant
on 28.4.1993. In the notice as well as in
the plaint, rent from February 1984 was
demanded. Tenant had already deposited
the rent from February 1984 till April
1992 u/s 30 of the Act. After filing of the
suit
summons
were
issued
to
the
defendant fixing 30.11.1993 as the date of
hearing. On 30.11.1993 the presiding
officer was on leave however defendant
appeared and filed application praying for
supply of copy of plaint. Thereafter on
18.12.1993 which was the date fixed on
30.11.1993 by the Reader of the court,
defendant did not appear, hence the suit
was directed to proceed exparte, and the
suit was decreed exparte on 23.3.1994.
Petitioner
filed
an
application
for
restoration on 31.3.1994 and deposited an
amount of Rs.15,000/- in compliance of
the provisions of Section 17 of PSCC Act
on 4.4.1994. On 7.4.1994 the restoration
application was allowed and exparte
decree dated 23.3.1994 was set aside.
Thereafter on 12.4.1994 formal order of
restoration of suit on its original number
was passed and 9.5.1994 was fixed for
filing written statement. On 26.4.1994
tenant filed an application that only an
amount of Rs.7,624/- was due against him
(Rs.6,000/- as rent at the rate of Rs.250/-
per month from May 1992 to April 1994
and Rs. 1,624 as cost of suit), hence out of
the amount of Rs.15,000/- deposited by
him remaining amount of Rs. 7,376
deposited in excess by him shall be
returned to him. Landlord did not oppose
the said application, hence it was allowed
on 27.4.1994 and tenant was permitted to
withdraw the amount of Rs.7,376/-.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
164
However tenant did not actually withdrew
the amount. On 9.5.1994 the petitioner
filed written statement. On the said date
the trial court recorded in the order sheet
that both the learned counsel admitted that
the said date was date of first hearing.
Thereafter it was ordered that "fix
16.5.1994 for hearing". On 16.5.1994 the
Reader of the court recorded in the order
sheet that Presiding Officer was not
available due to promotion and transfer.
The Reader fixed 4.7.1994 as the next
date. On 4.7.1994 defendant filed an
application seeking amendment in the
written statement. In para 5 of the said
application it was stated that "due to legal
complication the defendant has not
deposited an amount of Rs.1,100/- as
alleged in para 19 of his written statement
which needs certain amendments." In the
prayer clause of the said amendment
application the following amendment was
sought to be made. "That in para 19 of the
written statement the sentence beginning
from
the
word
"the
defendant
is
depositing (Rs.1,100/-) to Rs.2/- since
September 1987 to April 1987" be
deleted and substituted by the following
sentence:

"The defendant has deposited Rs.
15,000/- in compliance of the provisions
of section 17 of the P.S.C.C. Act in Misc.
case No. 42 of 1994 arising out of suit
No. 162 of 1993, the same should be
adjusted in the suit in compliance of the
provisions of section 20 (4) of U.P. Act
No. 13 of 1972."

The amendment application was
allowed on 5.8.1994.

3. The trial court on 23.2.1995
decreed the suit by holding that the date
of first hearing was 30.11.1993 i.e. the
date fixed in the summons and as by that
date the entire amount due till then had
not been deposited in terms of Section 20
(4) of the Act, hence suit was liable to be
decreed. Against the judgment and decree
dated 23.2.1995 tenant petitioner filed
revision u/s 25 of PSCC Act being Civil
Revision
No.
121
of
1995.
XIV
Additional District Judge, Allahabad
through
judgment
and
order
dated
23.8.1993 dismissed the revision, hence
this writ petition. The revisional court
also agreed with the trial court that
30.11.1993 was the date of first hearing.

4. The revisional court observed that
on 30.11.1993 Presiding Officer of the
Court of Additional JSCC was on leave
and Peshkar fixed 18.12.1993 as the next
date. On 18.12.1993 without passing any
order on the application of the tenant
petitioner for supplying copy of plaint, the
suit was directed to proceed exparte.

5. The Revisional Court placing
reliance upon an authority of the Supreme
Court reported in S.C. Jain Versus
A.D.J. AIR 1989 SC 1070, held that
30.11.1993 was the date of first hearing.
In the aforesaid authority of the Supreme
Court it has been held that the first date
fixed after setting aside of the exparte
decree and restoration of the suit is the
first date of hearing. In that authority the
suit had been decreed exparte in 1975,
which was set-aside on 24.3.1977. It
appears that after restoration of the suit
30.8.1977 was the date fixed. The tenant
deposited incomplete arrears of rent etc.
on 30.5.1977. The remaining amount was
deposited on 1.10.1977. The Supreme
Court held that as complete deposit was
not made by 30.8.1977, which was the
date of first hearing, hence tenant was not
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1All] Krishna Kumar Gupta V. A.D.J., Allahabad and others
165
entitled to the benefit of section 20 (4) of
the Act.

6. In my opinion 30.11.1993 cannot
be taken to be the date of first hearing as
on that date neither written statement had
been filed nor Presiding Officer was
available. On the said date petitioner had
filed application for supply of copy of
plaint. If copy of plaint is not supplied to
the defendant there arises no question of
hearing of the suit, hence on this ground
alone 30.11.1993 can not be said to be
date of first hearing (vide Shafiqur
Rahman Khan vs. IInd Addl. District
Judge, Rampur 1982 A.W.C. 701 (D.B.)
Apart from it if on the date fixed in the
summons the tenant prays for and is
granted time to file written statement then
the said date can not be said to be date of
first hearing.

7. Interpretation of the expression
"first hearing" as used in explanation
under section 20(4) of the Act has
engaged attention of the Supreme Court in
several
authorities
including
the
following:

1. Siraj Ahmad Siddiqui Vs. P.N. Kapoor
AIR 1993 S.C. 2525 (three Judges)
2. Advaitanand Vs. J.S.C.C. 1995 (3)
S.C.C. 407 (two Judges).
3. Sudarshan Devi Vs. Sushila Devi AIR
1999 S.C. 3688 (two Judges).
4. Mam Chand Pal Vs. Shanti Agarwal
AIR 2002 S.C. 955 (two Judges).
5. Ashok Kumar Vs. Rishi Ram AIR
2002 S.C. 2520.

8. Unfortunately in the fifth
authority of Ashok Kumar decided on
8.7.2002, the authority of Mam Chand Pal
at serial No. 4 decided on 14.2.2002 was
not noticed. In the authority of Mam
Chand Pal it has been held in para 7 that
"in cases where the court itself is not
available. It would not be treated as date
of first hearing." However, in the
authority at serial No. 3 and 5 (Sudarshan
Devi and Ashok Kumar) a contrary view
has been taken. In Sudarshan Devi's
authority in para 32 it has been held that
"It is also true that on 12.4.1990 the
Presiding Officer was on training but that
in our view is not relevant in as much as
there is no difficulty in depositing the rent
etc. in the manner prescribed."

In Ashok Kumar's authority it was
mentioned in para 3 that:

"After service of summons the suit
was adjourned to May, 20, 1980 for final
disposal. On that day the tenant sought
time for filing written statement so the
suit was adjourned to July, 25 1980 when
time was, however extended for filing
written statement and the suit was posted
for final disposal on October 10, 1980.
The hearing of the suit was not taken up
on that date as Presiding Officer was on
judicial training but the tenant deposited
the entire amount in demand."

Thereafter in para 12 of the said authority
it was held,

"On July 25, 1980 time was extended
for filing written statement and the suit
was again adjourned for final disposal to
October 10, 1980. In as much as after
giving due opportunity to file written
statement, the suit was posted for final
disposal on October 10,1980, 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
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
166
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 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 which the court proposed to apply
its mind, on the facts of the case, was
October 10, 1980 as stated above."

9. In view of the above authority of
the supreme court of Ashok Kumar it is
quite clear that 30.11.1993 cannot be held
to be the date for first hearing as by that
date plaint had not been supplied to the
defendant. Applying the said authority it
becomes clear that 16.5.1994 was the date
of first hearing in the instant case as the
said date had been fixed for hearing on
9.5.1994 on which date (9.5.1994) tenantpetitioner had filed written statement. Till
16.5.1994 tenant had not filed any
application for adjustment of entire
amount of Rs.15,000/- deposited by him
under Section 17 P.S.C.C. Act on
4.4.1994. In-fact on 16.5.1994 the
amount of Rs.7,376/- out of the aforesaid
amount of Rs.15,000/- was not available
to the landlord as the court by earlier
order dated 27.4.1994 had permitted the
defendant to withdraw the said amount of
Rs.7,376/-. The subsequent amendment
in
the
written
statement
seeking
adjustment of the entire amount of
Rs.15,000/- may be taken to be a deposit
made on the date of the amendment
application
or
the
date
on
which
amendment application of the tenant was
allowed. Both these dates are subsequent
to 16.5.1994. In the written statement as
filed on 9.5.1994 it was admitted in
paragraph-9 that atleast defendant was
defaulter to the tune of Rs.1,100/- which
he was depositing. In fact the said
proposed deposit of Rs.1,100/- was never
made. It is therefore, quite clear that on
16.5.1994 complete deposit as required by
Section 20 (4) of the Act had not been
made.

10. Accordingly, even though I do
not agree with the courts below that
30.11.1993 was the date of first hearing
still the writ petition is liable to be
dismissed on the ground that 16.5.1994
was the date of first hearing but even on
that date complete deposit had not been
made.

11. Accordingly, writ petition is
dismissed.

However, tenant petitioner is granted
time till 31.3.2005 to vacate the premises
in dispute provided that within one month
from today he deposits the entire decreetal
amount due till 31.3.2005 after adjusting
the amount already deposited and files an
undertaking before the trial/ executing
court to the effect that on or before
31.3.2005 he will willingly vacate the
premises and hand over possession of the
same to the landlord. The amount already
deposited or to be deposited under this
judgment shall at once be paid to the
landlord respondent.
Petition Dismissed.
---------
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1All] Krishna Kumar Gupta V. A.D.J., Allahabad and others
167
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.09.2004

BEFORE
THE HON'BLE ARUN TANDON, J.

C. M. Application No. 161701 of 2004
In re:
Civil Misc. Writ Petition No. 36849 of 2004

Km. Kavita Yadav

...Petitioner
Versus
Director General, Medical Education and
Training, U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Rakesh Kumar

Counsel for the Respondents:
Sri Mahendra Pratap
S.C.

Constitution
of
India-Art.
226Educational
matter-Grant
of
interim
relief-Petitioner appeared in entrance
examination for admission to MBBS
Course various Medicale Colleges in U.P.-
Petitioner a female belonging to OBC
category-Notice published by Director
General, Medical Education and Training
mentioned
15.7.2004
as
date
for
registration and councilling of female
candidates
from
rank
1
to
550-
Petitioner's
rank
232-Therefore,
respondents
were
not
justified
in
refusing admission to petitioner on
ground that she had not appeared for
registration and councilling on dates
from 10 to 14 July, 2004-direction issued
to grant admission to in MBBS course, if
any female candidate lower in rank to
petitioner has been admitted to MBBS
course.

Held: Para 13

In view of the peculiar facts and
circumstances as noticed hereinabove it
is provided that the respondents shall
grant admission to the petitioner in
MBBS course if any female candidate
lower in rank to the petitioner has been
admitted
to
the
said
course,
by
tomorrow i.e. 30th September, 2004.
The right of the petitioner to get
admission in MBBS course shall not be
permitted
to
be
defeated
by
the
respondents on the plea that it is not
possible to grant admission to her by
tomorrow.

(Delivered by Hon'ble Arun Tandon, J.)

1. On 14.09.2004 this Court granted
time upto 23.09.2004 to the counsel
appearing for respondents 1 and 2 to file
counter affidavit / seek instructions. On
23.09.2004
again
the
matter
was
adjourned to 28.09.2004. On 28.09.2004
the matter was directed to be taken up
today.

2. Heard Sri Rakesh Kumar on
behalf of the petitioner and Sri Mahendra
Pratap on behalf of respondents 1 and 2.
No counter affidavit has been filed on
behalf of respondents 1 and 2. However,
Sri
Mahendra
Pratap
has
received
instructions and on the basis of the
instructions so received he has made his
submissions for justifying the action of
the respondents.

3. This Court is aware that in normal
circumstances no interim orders granting
provisional admission are to be passed in
view of the law laid down by the High
Court as well as by the Hon'ble Supreme
Court. However, the Court cannot loose
sight of the fact that in the facts of the
present case if interim orders are not
passed the present writ petition is liable to
be rendered infructuous, inasmuch as
under the guidelines issued by the
Medical Council of India following the
directions of the Hon'ble Supreme Court