# Mohd. Salim alias Salim Uddin v. 4th A.D.J., Allahabad and others

- **Citation:** (2001) 2 ILRA 175
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-salim-alias-salim-uddin-v-4th-a-d-j-allahabad-and-others-39843
- **Pages:** 6

## Text

2All] Mohd. Salim alias Salim Uddin V. 4th A.D.J., Allahabad and others
175
of law laid down in Brij Mohan Singh
Chopra Versus State of Punjab5 that
unless adverse report is communicated
and representation, if any made by
employee is considered, it should not be
acted upon in retiring an employee
prematurely
from
service
under
Fundamental Rule 56 (c) is in tune with
clause
(b)
of
Explanation
(2)
to
Fundamental rule 56. The aforesaid
decision was no doubt noticed by the
Supreme Court in Baikuntha Nath Das
wherein
it
has
held
that
mere
circumstance that uncommunicated entry
was taken into account while passing and
order of compulsory retirement cannot be
a basis for interference. But there is
nothing to show that the rule therein
contained any provision like the one
contained in clause (b) of Explanation (2)
to Fundamental Rule 56. In my opinion,
in order to reach a correct conclusion,
version of the petitioner with regard to the
entry regarding his alleged indulgence in
corruption as also in respect of the alleged
'financial irregularity' regarding G.P.F.
accounts of the employees was necessary
particularly when soon before the special
adverse
entry
and
alleged
financial
irregularity, the petitioner was promoted
to the post of Senior Clerk.

In view of the above discussion the
petition succeeds and is allowed. The
impugned order is quashed.

5 (1987) 2 SCC 188
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INDIAN LAW REPORTS ALLAHABAD SERIES [2001
176
By the Court

1. The dispute relates to the tenanted
accommodation
House
No.
149/160
Sadiyabad, Allahabad. This house was
purchased by respondent no. 3 Ghalib
Hussain on 10.5.1993 from the previous
owners. On 20.05.1994 respondent no. 3
served a composite notice of demand and
to quit. Arrears of rent for the period
10.05.1993
to
09.06.1994
were
demanded. The present petitioner sent
reply to the notice. The respondent no. 3
filed SCC Suit no. 118 of 1994 on
10.08.1994 for ejectment of the petitioner
and for recovery of arrears of rent
amounting
to
Rs.2350/-
and
mense
profits. After the suit was registered, the
trail court issued summons to the
petitioner for his appearance and to file
written
statement
on
21.10.1994.
Summons was served and the petitioner
appeared before the trail court on dated
fixed i.e. 20.10.1994 and move a an
application that he may be provided a
copy of the plaint. An order was passed to
furnish a copy of the plaint to the
petitioner and 21.11.1994 was fixed for
filing of the written statement and
hearing. On that date, the petitioner
moved an application for adjournment,
which was allowed, and 10.01.1995 was
fixed for final hearing. On that date, the
petitioner
moved an application for
adjournment, which too was allowed and
08.02.1995 was fixed for final hearing.
Again on that date, the petitioner sought
adjournment which was allowed and
15.03.1995 was fixed. The case was fixed
for hearing on 02.05.1995 on which date
again the petitioner sought adjournment in
a causal manner. The trail court showed
indulgence by adjourning the case to
12.05.1995. On that date, the lawyers
abstained to work and consequently
03.08.1995 was fixed for final hearing. It
was on that date that the petitioner moved
an application for depositing the money
with a view to avail benefit of the
provision of Section 20(4) of U.P. Urban
Buildings (Regulation of Letting, Rent
and Eviction) Act 1972 (U.P. Act No.
XIII of 1972) (hereinafter referred to as
'the Act'), which runs as follows:

"20(4): In any suit for eviction on the
ground mentioned in clause (a) of subsection (2), if at the first hearing of the
suit the tenant unconditionally pays or 28
[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 (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
annuam and the landlord's costs of the
suit in respect thereof, after deducting
there from any amount already deposited
by the tenant under sub-section (1) of
Section 30, the court may, in lieu of
passing a decree for eviction on that
ground, pass an order relieving the tenant
against his liability for eviction on that
ground:

Provided that nothing in this subsection, shall apply in relation to a tenant
who or any member of whose family has
built or has otherwise acquired in a vacant
state, or has got vacated after 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 proceeding
mentioned in the summons served on the
defendant:
2All] Mohd. Salim alias Salim Uddin V. 4th A.D.J., Allahabad and others
177
(b) the expression "cost of the suit"
includes one-half of the amount of
counsel's fee taxable for a contested
suit.]"

2. A sum of Rs.5600/- was deposited
by the petitioner on 15.08.1995. The next
date of hearing on the move of the
petitioner was fixed on 22.08.1995. The
suit was ultimately decided against the
petitioner on 29.09.1996. It was held that
he committed default in payment of
arrears of rent. The petitioner preferred a
Revision No. 1248 of 1998 under section
25 of the Provincial Small Causes court
Act which was dismissed on 20.12.2000.
It is in these circumstances that the
petitioner tenant has come before this
Court to challenge the finding that he is
liable to be evicted on the ground of
having committed default in payment of
arrears of rent.

Counter,
Rejoinder
and
Supplementary
affidavits
have
been
brought on record.

Heard Sri B.B. Paul, learned counsel
for the petitioner and Sri S.F.A. Naqvi as
well as Sri Jafar Imam Naqvi for
respondent no. 3.

3. The only legal point canvassed by
Sri B.B. Paul, learned counsel for the
petitioner before this Court is that the two
courts below have erred in not relieving
the petitioner from the liability of
ejectment inspite of the fact that the
petitioner has deposited the entire amount
or more than the amount required under
Section 20(4) of the Act well before
22.08.1995 which was the first date
proposed for hearing. Sri Naqvi repelled
the above submission and urged that for
the purposes of getting benefit under
Section 20(4) of the Act, the petitioner
was required to deposit the entire amount
of rent, interest, costs, lawyers fee etc.
well on or before 21.11.1994 which was
the 'first date of proposed hearing' it was
pointed out that the petitioner himself has
brought about the situation to his
detriment
by
seeking
numerous
adjournments on the one ground or the
other and deposited a sum of Rs.5600/-
after a number of dates for proposed
hearing had elapsed.

4. The learned counsel for both the
parties have placed reliance on the
observations made by the Apex Court in
the case of Sudarshan Devi and another
vs. Sushila Devi and another - 1999
(U.P.) R.C.C. 697.

5. The parties would swim or sink
with the determination of the 'first date of
proposed hearing' as it is crucial to
deposit the amount as contemplated under
Section 20(4) of the Act by the tenant to
relieve himself of the liability from
ejectment.

6. The expression 'at the first
hearing of the suit' is also to be found in
Order X, rule 1, Order XIV, Rule 1 (5)
and Order XV Rule 1 of the Code of Civil
Procedure. These provisions indicate that
' the first hearing of the suit' can never be
earlier than the date fixed for the
preliminary examination of the parties.

7. The date of the first hearing
within the meaning or Order 15, Rule 5
means the date mentioned in the summons
and that the ordinary notion as to whom
the date of the first hearing in a civil suit
governed by the Code of Civil Procedure
arrives, cannot be imported into or
applied in the application or Order 15,
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
178
rule 5. Once it is found that the summons
had been duly served it is the date
mentioned in the summons, which would
be relevant for the application in Order
15, rule 5.

8. The insertion of the explanation
with regard to the expression 'first
hearing' by the State Legislature has
given an artificial meaning to the said
expression which was not the meaning
given by the courts earlier also different
from the meaning given to the expression
occurring in Order VIII Rule 1 in Order
X, rule 1 or in Order XV, Rule 1 of the
Code of Civil Procedure.

9. The language of the Explanation
appended to Section 20(4) of the Act is
plain enough and a bare reading of it
indicates that save in cases where the
Court itself is unable to take up the case
or proceed with the hearing of the same in
consequence of the absence of the
presiding office or of the inability of the
Court or like nature to take up the case,
the date mentioned in the summons shall
be the date of the first hearing, provided
of course if the summons has been duly
served on the defendant.

10. After the amendment in the form
of incorporation of explanation added by
Act No.28 of 1976 to Section 20(4), it has
been held in various decisions that for the
purposes of Section 20(4), it is only the
date mentioned in the summons and not
any adjourned date that would be treated
as the date of 'first hearing'. The
decisions of this Court in Rafiq Ahmad
vs.
III
Additional
District
Judge
1982(1) ARC 371, Champa Ram Vs. Ist
Additional District Judge, 1982 UPRCC
608 and Jagannath Vs. Ram Chandra
Srivastava (D.B.) -1982(1)ARC 665
were affirmed by a Full Bench decision of
Lucknow Bench of this Court in the case
Sia Ram vs. District Judge, Kheri and
other, 1984 Lucknow Rent Journal, 69
(FB)(Lucknow).

11. In the case of Siraj Ahmad
Siddiqui vs. Prem Nath Kapoor, S.C.
and Full & Bench Rent Cases, 1993 page
419,
the
expression
'first
hearing'
occurring in the explanation to section
20(4) came to be interpreted. The apex
court held as follows:

"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 hearing' for the
purpose of Section 20(4) mean something
different?
The
'step
or
proceedings
mentioned in the summons' referred to in
the definition should, we think, be
construed to be a step or proceedings 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
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,
as set out earlier, it is permissible under
the Code for the defendant to file 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
2All] Mohd. Salim alias Salim Uddin V. 4th A.D.J., Allahabad and others
179
are of the view, therefore, that the date of
first hearing as defined in the said Act is
the date on which the Court purposes to
apply its mind to determine to points in
controversy between the parties to the suit
and to frame issues, if necessary."

12. Relying upon the aforesaid
observation in the case of Siraj Ahmad
Siddiqui (Supra), the apex court in the
case of Adyaitanand Vs. Judge Small
Cause Court, Meerut and others, 1995
ARC 563 has taken the view that the date
of 'first hearing' as defined in the said Act
is the date on which the Court proposed to
apply its mind to determine the points in
controversy between the parties to the suit
and to frame issues, if necessary.

13. Now let us examine the
observations made by apex court in
Sudarshan Devi's case (Supra) on
which reliance has been placed by the
counsel for the both the parties. Sri B.B.
Paul referred to the observations made by
the apex court in paragraph 28 of the
report which read as follows:

"28: Thus both in Siraj Ahmad
Siddiqui and Advaita Anand this Court
construed
Section
20(4)
and
the
Explanation to say that the date of first
hearing of the suit would not be the date
fixed for filing the written statement but
would be the date proposed for the
hearing i.e. the date proposed for applying
the Court's mind to determine the points
in controversy and to frame issues, if
necessary. These decisions are binding on
us. Point 1 is decided accordingly"

Sri S.F.A. Naqvi had drawn the
attention of this Court to paragraphs 32
and 33 of the report. They run as follows:

"32. In our view, the use of the word
"proposing to apply its mind" and the
word 'for" final hearing used in Siraj
Ahmad Siddiqui's case and in Advaita
anand's case are significant. In fact,
though Section 20(4) uses the word "at"
the Explanation uses the word 'for'.
Therefore,
we
cannot
accept
the
contention of the learned counsel for the
tenant-appellants that the due date is the
actual date when the final hearing taken
place. The due date is the date fixed in the
summons for final hearing as explained
above in point 1.

"33. In the present case before us
the case being one tried by the Small
Causes Court, the summons initially
stated that the date for first hearing, i.e.
the date fixed for final hearing, would be,
22.2.1990. All the three courts below,
therefore, held that the crucial date was
22.2.1990 and there was clear default by
22.2.1990. But in our opinion 22.2.1990
would not be the due date. The summons
was served in this case by the method of
substituted service and it was common
ground that the summons were not
accompanied by the plaint. The tenant
therefore filed an IA seeking a copy of the
plaint. That application was allowed and a
fresh date for filing written statement and
a fresh date for 'first hearing' were given
the fresh date for final hearing was
12.4.1990. But the arrears were not
deposited even by that date."

14. The decision is Sudershan
Devi's case (Supra) is not in opposition to
what has been laid down in the case of
Siraj Ahmad Siddiqui (Supra). The date
of first hearing for all practical purposes
shall be the date as has been indicated in
the summons for the proposed hearing. In
the case in hand the plaint was registered
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
180
on 10.08.1994 and summons was issued
fixing 21.10.1994 for filing the written
statement and hearing. After the service
of the summons the petitioner did appear
before the court below on 21.10.1994 and
prayed for a copy of the plaint, which was
supplied to him on 27.10.1994. The trail
court has fixed 21.11.1994 for filing of
written statement and hearing. On that
date, the petitioner appeared but did not
file the written statement and sough time.
Thereafter a number of adjournments
were sought by him. It was only on
15.08.1995 that the petitioner deposited
the
money.
Sri
Paul
asserts
that
03.08.1995 or for that matter 22.08.1995
was, in fact, the first date of proposed
hearing for the purposes to avail the
benefit of Section 20(4) of the Act. I find
it difficult to agree with Sri Paul on the
point. The first date of hearing as
indicated in the summons was 21.10.1994
but
since
the
summons
was
not
accompanied with the copy of plaint, the
petitioner was given time to file the same
and 21.11.1994 was fixed for hearing.
The courts below have rightly come to the
conclusion that 21.11.1994 was the first
date of hearing for the purpose of Section
20(4) of the Act as by that date the
petitioner after due service had been
supplied the copy of the plaint. The
petitioner did not deposit the money on
21.11.1994 or thereafter for months
together, which was the first date of
hearing and allowed the matter to drag on
for numerous dates. He deposited the
money on 15.8.1995 and during the
period
21.11.1994
to 15.08.1995 a
number
of
dates
of
hearing
had
intervened. The observations made by the
apex court in paragraph 28 of Sudarshan
Devi's case (supra) as relied upon by Sri
Paul are of no avail to the petitioner. They
have to be confined to the particular facts
of that case.

15. Section 20(4) of U.P. Act no. 13
of 1972, provides that in any suit for
eviction on the ground of default in
arrears of payment mentioned in Clause
(a) sub-section (2) of Section 20, if at the
first hearing of the suit the tenant
unconditionally pays the entire amount of
rent and damages for use and occupation
of the building due from him together
with interest thereon at the rate of nine
percent, per annuam and the landlord's
cost of the suit in respect thereof, the
Court may, in lieu of passing a decree for
eviction on that ground pass an order
relieving the tenant against his liability for
eviction
on
the
ground.
Since
the
petitioner did not deposit the amount on
the first date of proposed hearing i.e.
21.11.1994, he has been rightly denied
benefit of the provisions of Section 20(4)
of the Act.

The writ petition turns out to be
devoid of any merits and substance. It is
accordingly dismissed without any order
as to costs.

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