# Satya Narain Tiwari v. Pt. Neelkanth Trust

- **Citation:** (2012) 2 ILRA 1022
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-16
- **Case number:** Civil Misc. Writ Petition No. 65093 of 2011
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satya-narain-tiwari-v-pt-neelkanth-trust-42283
- **Pages:** 7

## Headnote

Sri Kailash Nath Kesharwani

Counsel for the Respondents
Anil Kumar Sharma

U.P.
Urban
Building
(Regulation
of
Letting
Rent
&
Eviction)
Act
1972
Section 20 (4)-Striking and of defencedefault
in
payment
of
rent
w.e.f.
01.05.1976-.registered notice fixing
25.09.1987-employees were on strikewritten statement filed on 25.09.1987
with application seeking permission to
deposit
entire
rent-after
several
adjournment on 08.04.1988 permission
granted-compiled only after 13 years on
23.05.2000-both Courts below refused to
extend benefits-held- 08.04.1988 being
"first date of hearing" no deposit madeno question of extending benefits under
section 20 (4) arises-petition dismissed.
2 All] Satya Narain Tiwari V. Pt. Neelkanth Trust
1023
Held: Para 25 and 26

Applying the dictum laid down in the
above authorities, it is evident from the
order sheet that written statement was
taken on record by the Court below on
5th February, 1988 and thereafter 8th
April, 1988 was fixed for final hearing.
Therefore it is 8th April, 1988 which, in
my view, would be the date of "first
hearing" by which time the petitioner
ought to have make payment in order to
claim benefit under Section 20(4) C.P.C.
which admittedly he has failed.

Moreover, even if I consider the order
dated 8th April, 1988 passed by Court
below permitting the petitioner to tender
amount
of
rent
[by
allowing
his
application 6-C] in one week, and further
indulgence is allowed to the petitioner,
that would also make no difference in
the present case since in the entire
month of April, 1988 no compliance was
made by the petitioner. The actual
payment for the first time was made by
him only on 23.5.2000, which is much
beyond the date of "first hearing", which
according to me would be 8th April,

## Text

1022 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

6. The writ petition was entertained
and an order directing the parties to
maintain status quo as regards to the land
in dispute was passed on 24.5.1995.

7. A counter affidavit has been filed
stating therein that during the proceedings
before the Prescribed Authority the
statement of the petitioner was recorded
on 2nd of April, 1993 and, therefore, it
cannot be said that the petitioner had no
knowledge about the proceedings before
the Prescribed Authority. It has further
been stated that an appeal filed by another
person against the same order has already
been dismissed and, therefore, there was
no ground made out for entertaining the
same.

8. Having perused the pleadings on
record as also the impugned order, no
reasons have been given by the appellate
authority as to why the explanation given
by the petitioner for delay in filing the
appeal was not satisfactory and it is
primarily on this ground that the appeal
has been held to be not maintainable as
barred by time. The dismissal of another
appeal has been stated by way of a fact in
the order. There is no indication as to how
the said dismissal governs the appeal filed
by the petitioner and as to what is the
impact of the said order in another appeal.

9. In the absence of any cogent
reasons on both grounds the impugned
order dated 17.4.1995 is unsustainable.

10. The writ petition is allowed. The
order dated 17.4.1995 is hereby quashed.

11. Keeping in view the facts and
circumstances of the case as also the
reasons given in support of the delay
condonation application, it would be
appropriate that the same is considered by
this Court itself instead of remanding the
said issue after a lapse of 17 years. The
delay is accordingly condoned as the
explanation is satisfactory and the appeal
will be treated to be within time and will
be disposed of on merits as expeditiously
as possible by the appellate authority after
giving an opportunity of hearing to the
State as well.

12. Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 65093 of 2011

Satya Narain Tiwari

 ...Petitioner
Versus
Pt. Neelkanth Trust
 ...Respondent

Counsel for the Petitioner:
Sri Kailash Nath Kesharwani

Counsel for the Respondents
Anil Kumar Sharma

U.P.
Urban
Building
(Regulation
of
Letting
Rent
&
Eviction)
Act
1972
Section 20 (4)-Striking and of defencedefault
in
payment
of
rent
w.e.f.
01.05.1976-.registered notice fixing
25.09.1987-employees were on strikewritten statement filed on 25.09.1987
with application seeking permission to
deposit
entire
rent-after
several
adjournment on 08.04.1988 permission
granted-compiled only after 13 years on
23.05.2000-both Courts below refused to
extend benefits-held- 08.04.1988 being
"first date of hearing" no deposit madeno question of extending benefits under
section 20 (4) arises-petition dismissed.
2 All] Satya Narain Tiwari V. Pt. Neelkanth Trust
1023
Held: Para 25 and 26

Applying the dictum laid down in the
above authorities, it is evident from the
order sheet that written statement was
taken on record by the Court below on
5th February, 1988 and thereafter 8th
April, 1988 was fixed for final hearing.
Therefore it is 8th April, 1988 which, in
my view, would be the date of "first
hearing" by which time the petitioner
ought to have make payment in order to
claim benefit under Section 20(4) C.P.C.
which admittedly he has failed.

Moreover, even if I consider the order
dated 8th April, 1988 passed by Court
below permitting the petitioner to tender
amount
of
rent
[by
allowing
his
application 6-C] in one week, and further
indulgence is allowed to the petitioner,
that would also make no difference in
the present case since in the entire
month of April, 1988 no compliance was
made by the petitioner. The actual
payment for the first time was made by
him only on 23.5.2000, which is much
beyond the date of "first hearing", which
according to me would be 8th April,
1988.
Case law discussed:
1981 ARC 1; 1981 ARC 463; 1985 (2) ARC
461; 1996 (2) ARC 255; 1995 (3) SCC 407;
1993 (4) SCC 406; 1999 (8) SCC 31; 2002 (3)
SCC 49; AIR 2002 SC 2520; 2001 (2) AWC
1468; 2004 (56) ALR 460; 2004 (57) ALR 233;
2005 (60) ALR 697; 2006 (3) ARC 657; 2006
(2) ARC 208

(Delivered by Hon'ble Sudhir Agarwal, J.)

1.

Heard
Sri
Kailash
Nath
Kesharwani, learned counsel for the
petitioner and Sri Anil Kumar Sharma,
learned counsel for the respondents. Since
pleadings are complete, as requested and
agreed by learned counsel for the parties, I
proceed to decide the matter under the
Rules of the Court at this stage.

2. The petitioner is a tenant in the
premises i.e. second and third storey of a
house situated at Mohalla Akalganj, District
Etawah. S.C.C. Suit No.33 of 1987 was
filed by respondent in the Court of Judge,
Small Causes, Etawah vide plaint dated
10.8.1987 alleging that petitioner-tenant has
committed default in payment of rent since
1st May, 1976 till date. A registered notice
was issued on 17/18.2.1987 demanding rent
and terminating tenancy. The notice was
served upon the petitioner-tenant on
21.2.1987. He replied by advocate's notice
dated 9.3.1987 denying the very ownership
of respondent on the premises in question
and disputed relationship of landlord and
tenant. Another notice was served upon
petitioner vide registered letter dated
21.3.1987 terminating his tenancy on the
ground of denial of ownership and the said
notice was also served on 23.3.1987.

3. Though the tenant was alleged to be
in default of payment of rent since
01.5.1976 but in the suit filed, the arrear of
rent was claimed only for the preceding
three years. The relief of eviction of tenant
was also sought. The suit was registered
issuing notice fixing 25.9.1987.

4. It is not in dispute that on
25.9.1987, employees of Court were on
strike.
Thereafter
on
3.10.1987,
the
petitioner filed written statement dated
25.9.1987 along with an application No.6-C
seeking permission of the Court below to
pay rent by Tender. This application was
allowed on 8.4.1988 permitting petitionertenant to make payment of rent by Tender
within a week on its own risk. The rent for
the period of 1.5.1976 to 31.3.2000 was
deposited by Tender dated 23.5.2000
(Annexure 4 to the writ petition).
1024 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

5. In the Court below the petitioner
sought benefit of Section 20(4) of U.P.
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 (hereinafter
referred to as "Act 1972") alleging that he
deposited the entire rent and other charges
on the "first date of hearing" but this
contention has not found favour in both the
Courts below and they have recorded
findings against him.

6. Sri Keserwani, learned counsel
appearing for the petitioner contended that
25.9.1987 was the "first date" fixed after
issuing notice but on that date there was a
strike of employees. There was no function,
administrative or judicial. Hence it cannot
be said that 25.9.1987 was the "first date of
hearing". On the very next date i.e.
3.10.1987 he submitted application seeking
permission of trial Court for payment of
rent as demanded by landlord by Tender but
the said application was deferred on about 3
or 4 occasions and it is only on 8.4.1988 the
same was allowed. The petitioner complied
the same. Still he has not been given the
benefit of Section 20(4) against eviction. It
is said that both the Courts below have erred
in law in deciding this issue against him. In
support, he placed reliance on Apex Court's
decision in Ved Prakash Wadhwa Vs.
Vishwa Mohan 1981 ARC 1, Bimal
Chand Jain Vs. Sri Gopal Agarwal 1981
ARC 463 and two Single Judge judgment
of this Court in Ram Autar Dubey Vs.
VIIth
Additional
District
Judge,
Gorakhpur & others 1985 (2) ARC 461;
and, Gulam Mohinuddin Khan Vs. 1st
Additional District Judge, Rampur &
Ors. 1996 (2) ARC 255.

7. Sri Anil Kumar Sharma, learned
counsel appearing for the respondentlandlord however submitted that even if
what is contended by learned counsel for
the petitioner is accepted to the extent that
25.9.1987 may not be considered to be "first
date
of
hearing",
admittedly
when
application of the petitioner was allowed on
8.4.1988, it was incumbent upon him to
make deposit in order to get the benefit of
Section 20(4) of Act 1972 but no such
compliance was made and it is only after
about 13 years i.e. on 23.5.2000 entire
arrears of rent was deposited along with
interest and expenses. This cannot be said to
have been done on the "first date of
hearing", inasmuch as, it cannot be said that
the "first date of hearing" got extended till
the year 2000. The Courts below thus have
rightly held that petitioner was disentitled
for benefit under Section 20(4) of Act 1972
though default in payment of rent since
May, 1976 is virtually admitted.

8. The fact, which is not disputed in
this case, is that summons issued to the
petitioner by trial Court mentioned the date
of appearance of defendant as 25th
September, 1987. It is also not in dispute
that on 25th September, 1987 the Court
could not function due to strike of
employees. The case was taken up then on
3rd October, 1987 when tenant presented
his application No. 6-C and also filed an
application seeking permission of trial
Court to pay the rent etc. by Tender. On the
aforesaid application, trial Court could pass
order on 8th April, 1988. It allowed a
week's time to the petitioner tenant to make
payment, as requested by him in the
application 6-C submitted on 3rd October,
1987

9. For consideration of petitioner's
application 6-C, the trial Court fixed 12th
October, 1987 whereafter it was adjourned
to 4th December, 1987 and 5th February,
1988. The petitioner filed his written
statement on payment of cost on 5th
2 All] Satya Narain Tiwari V. Pt. Neelkanth Trust
1025
February, 1988. However, his application 6C was heard by trial Court and after hearing
both the sides the same was allowed on 8th
April, 1988 permitting him to make
payment by Tender within a week. The next
date fixed was 8th July, 1988.

10. However, this order dated
8.4.1988 was not complied with. No
payment was made as directed on 8th April,
1988. On the contrary, arrears of rent,
interest, litigation expenses etc. were paid
on 23rd May, 2000 as is evident from
Annexure 4 to the writ petition.

11. Learned counsel for the petitioner
relied on certain Tenders, said to have been
submitted by him in December, 1987 and
onwards making payment of regular rent
commencing from 11th August, 1987 and
onwards on different dates and copies of
these tenders collectively have been filed as
Annexure 7 to the writ petition. However,
the said payments do not include entire
arrears of rent, interest and cost of litigation
as provided in Section 20(4) of Act, 1972.

12. From record it is evident that such
payment for the first time was made by
petitioner on 23rd May, 2000 and not before
that.

13. The petitioner's submission is that
'first date of hearing' should be considered
sometimes in May, 2000 when he deposited
the entire amount as contemplated under
Section 20(4) vide tender dated 23.5.2000
(copy of tender has placed as Annexure 4 to
the writ petition).

14. The only question up for
consideration is, "What is the date of first
hearing in this writ petition".

15.

Learned
counsel
for
the
respondent-landlord submitted that even if
25th September, 1987 may not be treated to
be the date of first hearing, and giving
maximum latitude to the tenant if it is taken
when the Court applied its mind for the first
time, the date of first hearing even in that
case cannot be beyond 8th April, 1988 or
15th April, 1988 which would take into
consideration period of one week allowed
by trial Court for making payment to the
petitioner.

16. The expression "first hearing" has
been
explained
in
Section
20(4)
Explanation (a) and reads as under:

"the expression "first hearing" means
the first date for any step or proceeding
mentioned in the summons served on the
defendant."

17. This expression has been
considered by Apex Court in Ved Prakash
Wadhwa (supra). It was held that the date
of "first hearing would not be before a date
fixed for preliminary examination of parties
and framing of issues". Similar was the
view taken in an earlier judgment also in
Advaita Nand Vs. Judge, Small Cause
Court, Meerut, 1995 (3) SCC 407.

18. A three-Judge Bench of Apex
Court also considered this issue in Siraj
Ahmad Siddiqui Vs. Prem Nath Kapoor,
1993 (4) SCC 406 and said as under

"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
1026 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
hearing' for the purposes 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 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
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 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 and to frame issues, if
necessary."

19. Again it was considered in
Sudarshan Devi Vs. Sushila Devi, 1999(8)
SCC 31 and held that the date fixed for
hearing of the matter is the date of first
hearing and not the date fixed for filing of
written statement. The Court observed that
emphasis in the relevant provision is on the
word "hearing". The Court also relied on its
earlier decision in Ved Prakash Wadhwa
(supra).

20. The matter again came to be
considered in Mam Chand Pal Vs. Shanti
Agarwal (Smt.), 2002 (3) SCC 49. Therein
the suit was filed on 5.12.1988 and
summons were issued fixing 19th January,
1989 for filing of written statement and 27th
January, 1989 for hearing. The defendant
was not served. The order was passed for
service of notice on the defendant by
publication fixing 3.7.1989 for hearing. By
mistake in the publication, the date of
hearing was shown as 26.4.1989 instead of
3.7.1989. On 26.4.1989, Presiding Officer
was not available having proceeded for
training. The case was thereafter adjourned
to
11.5.1989
and
further
gone
on
adjournment for one or the other reasons on
several dates. The Court held that in the
present case 26th April, 1989 would not be
regarded as "first date of hearing" since on
that date the Presiding Officer was not
available. In para 7 the court said, "where
the Court itself is not available it could not
be treated as the date of first hearing".

21. In Ashok Kumar & Ors. Vs.
Rishi Ram and others, AIR 2002 SC
2520, the Court noticed distinction between
the phraseology in Order XV, Rule 5 C.P.C.
and Explanation (a) to sub-section (4) of
Section 20 of Act, 1972 and in para 8, said:

"Rule 1 of Order V speaks of issue of
summons. When a suit has been 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 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
2 All] Satya Narain Tiwari V. Pt. Neelkanth Trust
1027
(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 disposal
of the suit at the first hearing. Explanation 1
to Rule 5 of Order XV defines the
expression "first hearing" to mean 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 dates mentioned. But the said
expression, as noticed above, is defined in
Clause (1) of Explanation to Sub-section (4)
of Section 20. Section 38 of the U.P. Act
says that the provisions of the said Act shall
have
effect
notwithstanding
anything
inconsistent therewith contained in the
Transfer of Property Act or in 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 to the State of U.P.
It is too evident to miss that in contradistinction to the "filing of written
statement" 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 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."

22. In para 12 of the judgment in
Ashok Kumar (supra), considering the
above observation and also relying on its
earlier decisions in Sudershan Devi
(supra), Advaita Nand (supra) and Siraj
Ahmad Siddiqui (supra), the Court said:

"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
statement and the suit was again adjourned
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 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 hearing of the suit."

23. It also held that once the date of
"first hearing" is determined and thereafter
the case is adjourned, the date of first
hearing of the suit would not change on
every adjournment of the suit for final
hearing.

24. Thus the effective date of first
hearing of the suit sould be, when the Court
proposed to apply its mind. Therefore it
would be the date fixed earliest for final
disposal/hearing and not adjourned for
reasons attributable to the defendant-tenant.
There are certain decisions of this Court
also and I need not to burden this judgment
giving in detail all such judgments except of
making reference of some of those hereto
i.e Mohd. Salim alias Salim Uddin Vs.
4th Addl. District Judge, Allahabad &
Ors. 2001(2) AWC 1468, Har Prasad Vs.
Ist A.D.J., Etah 2004 (56) ALR 460, Jai
Ram Dass Vs. Iind Addl. District Judge,
Jhansi & Ors. 2004(57) ALR 233,
1028 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Chaturbhuj Pandey Vs. VI A.D.J.,
Kanpur & Ors. 2005 (60) ALR 697, Hira
Lal & Ors. Vs. Ram Das 2006 (3) ARC
657 and Saadat Ali Vs. J.S.C.C.,
Moradabad & ors. 2006 (2) ARC 208.

25. Applying the dictum laid down in
the above authorities, it is evident from the
order sheet that written statement was taken
on record by the Court below on 5th
February, 1988 and thereafter 8th April,
1988 was fixed for final hearing. Therefore
it is 8th April, 1988 which, in my view,
would be the date of "first hearing" by
which time the petitioner ought to have
make payment in order to claim benefit
under
Section
20(4)
C.P.C.
which
admittedly he has failed.

26. Moreover, even if I consider the
order dated 8th April, 1988 passed by
Court below permitting the petitioner to
tender amount of rent [by allowing his
application 6-C] in one week, and further
indulgence is allowed to the petitioner,
that would also make no difference in the
present case since in the entire month of
April, 1988 no compliance was made by
the petitioner. The actual payment for the
first time was made by him only on
23.5.2000, which is much beyond the date
of "first hearing", which according to me
would be 8th April, 1988.

27. Hence default on the part of
petitioner stand proved and also that he
did not pay entire rent etc on first date of
hearing. The findings recorded by Courts
below against the petitioner therefore
cannot be said erroneous in any manner.

28. The judgment cited by petitioner
in Ved Prakash Wadhwa (supra) has
already been discussed above but that
does not lend any support to him in any
manner. So far as rest of the judgments in
Bimal Chand Jain (supra) of Apex
Court and two jugments of this Court i.e.
Ram Autar Dubey (supra) and Gulam
Mohiuddin Khan (supra) are concerned,
having gone through the same, I do not
find that these judgments reflect light
upon the question as to what would be the
date of first hearing in the present case.
Hence
these
judgments
have
no
application to the present case.

29. No other argument advanced.

30. In the result the wit petition
being devoid of merits is dismissed.

31. Interim order, if any, stands
vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2012

BEFORE
THE HON'BLE SATYA POOT MEHROTRA, J.
THE HON'BLE HET SINGH YADAV, J.

Civil Misc. Writ Petition no. 39386 of 2007

Kamal Jeet Singh

 ...Petitioner
Versus
The General Officer Commanding In
Chief And Others

 ...Respondents

Counsel for the Petitioner:
Sri Siddhartha

Counsel for the Respondents:
Sri Mohd. Isa Khan
S.C.

(A). Constitution of India, Article 226Writ Petition-alternative remedy-inspite
of statutory remedy of revision-petition
pending since long pleading exchange
between the parties-petition can be
decided
on
merit.