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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Hari Swarup, J.
Acts
  • SECTION 22 PROVINCIAL SMALL CAUSE COURTS ACT
  • 5 of O. XV of the Code. Sub-rule (1) of R. 5 provides:(1)
  • S. 25 of the Provincial Small Cause Courts Act.2.
  • S. 25 of the Provincial Small Cause Courts Act.
  • provisions of sub-rule (2),
  • defence.9. Sub-rule (2)
  • 5 of O. XV. Rule 5
  • sub-rule (2)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Hari Swarup, J.
Acts
  • SECTION 22 PROVINCIAL SMALL CAUSE COURTS ACT
  • 5 of O. XV of the Code. Sub-rule (1) of R. 5 provides:(1)
  • S. 25 of the Provincial Small Cause Courts Act.2.
  • S. 25 of the Provincial Small Cause Courts Act.
  • provisions of sub-rule (2),
  • defence.9. Sub-rule (2)
  • 5 of O. XV. Rule 5
  • sub-rule (2)
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

A suit was instituted by the plaintiff in a Court of Small Causes for ejectment of the tenant and recovery of arrears of rent. The summons specified a first date of appearance and hearing as 5-4-1977. On that date the defendant appeared and applied for an adjournment; the trial court adjourned the matter and fixed 10-5-1977 as the new date for hearing. On 10-5-1977 the defendant filed a tender for deposit of the amount admitted to be due under R.5 of Order XV of the Code of Civil Procedure, and the amount was deposited on 12-5-1977.

The trial court (Munsif, Rae Bareli) struck off the defence on the ground that the deposit had not been made on the first date of hearing. The defendant filed a revision against that order; the District Judge dismissed the revision on the ground that there was no error of jurisdiction. The present revision challenges both the trial court's order striking off the defence and the revisional order of the District Judge.

The opinion records that the District Judge dealt with the matter as if exercising powers under Section 115 of the Code, whereas the revision before him was under Section 25 of the Provincial Small Cause Courts Act.

Legal Issues Presented

  1. Whether the adjourned date (10-5-1977) fixed by the court can be deemed to be the "first hearing" within the meaning of Rule 5, Order XV of the Code of Civil Procedure.
  2. Whether a tender of the admitted rent on 10-5-1977 followed by deposit on 12-5-1977 complies with the requirement to deposit the amount "at or before the first hearing" under R.5 O. XV.
  3. Whether the trial court lawfully exercised its power to strike off the defence under R.5 O. XV, having regard to the discretionary language of the rule and the procedural protections in sub-rule (2).
  4. Whether the District Judge erred in the approach to the revisional jurisdiction by treating the revision as if under S.115 of the Code instead of under S.25 of the Provincial Small Cause Courts Act.

Arguments of the Parties

Respondent's Arguments

  • Learned counsel for the respondent relied strongly on Explanation 1 to R.5 that the date mentioned in the summons must be treated as the date of the first hearing.

Appellant/Defendant's Position (as reflected in the record)

  • The defendant applied for an adjournment on the summons date and, after the adjournment was granted, tendered the amount admitted to be due on the adjourned date (10-5-1977) and made the deposit on 12-5-1977. The recorded position implied that the tender and subsequent deposit complied with R.5 when the adjourned date is treated as the first hearing.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeds in a sequence anchored in the language and purpose of R.5, Order XV and its Explanation:

  1. Interpretation of "at or before the first hearing": R.5 requires that the amount admitted to be due be deposited "at or before the first hearing of the suit." The court reasoned that this contemplates a date which cannot be earlier than the date of admission by the defendant, and that the defence must exist before the court can consider striking it off for non-deposit.
  2. Meaning of "first hearing" and the Explanation: Explanation 1 defines "first hearing" as the date for filing written statement or for hearing mentioned in the summons, or, where more than one such date is mentioned, the last of those dates. The court emphasized that the Explanation must be read with the main rule and the rule's intention—to secure payment of the admitted rent before the case proceeds.
  3. Effect of adjournment by the court: The court observed that in Courts of Small Causes the summons often fix multiple dates together and the court has jurisdiction to adjourn proceedings and fix another date (citing Section 22 of the Provincial Small Cause Courts Act as authority that the Registrar or chief ministerial official may adjourn hearing when the Judge is absent). If the presiding court itself adjourns and substitutes another date for the hearing, that substituted (adjourned) date becomes the operative "first hearing" for the purposes of R.5. Consequently, the date fixed by the court for the hearing (10-5-1977) must be deemed to be the date of the first hearing rather than the original date mentioned in the summons (5-4-1977).
  4. Tender and deposit: The court noted that a tender of rent amounts to payment and that a tender followed by deposit constitutes sufficient compliance with R.5. Thus, the tender on 10-5-1977 coupled with deposit on 12-5-1977 is to be treated as timely once 10-5-1977 is the first hearing date.
  5. Discretionary nature of striking off defence and sub-rule (2): The court examined the language of R.5, noting the use of "may" in authorizing the court to strike off a defence (as contrasted with "shall" elsewhere), and set out sub-rule (2) which allows the court to consider any representation made by the defendant within 10 days of the first hearing or of the expiry of the week referred to in sub-rule (1). The court concluded that the word "may" confers discretion and that striking off defence is penal in nature; therefore the court must apply its mind and exercise discretion whether or not to strike off the defence.
  6. Effect of the defendant's adjournment application as a representation: The court held that the application for adjournment made on the summons date constitutes a representation within sub-rule (2). By allowing the adjournment and fixing new dates for filing the defence and hearing, the court effectively accepted that representation and permitted deposit to be made by the adjourned date.
  7. Illegality of the trial court's order: Given that the trial court had itself fixed the later date of hearing and thereby allowed the defendant to file defence and make the deposit by that date, the power to strike off the defence could not be exercised as if the original summons date still governed. The trial court, therefore, was held to have exercised its jurisdiction illegally in striking off the defence.
  8. Procedural error by the revisional court: The opinion also records that the District Judge erred by considering the matter as a jurisdictional error under Section 115 of the Code when dealing with a revision maintainable under Section 25 of the Provincial Small Cause Courts Act; the revisional scope under S.25 is wider and requires a different approach.

Holding and Implications

Holding (core ruling): The revision is allowed and the trial court's order striking off the defence is set aside.

Implications and direct consequences:

  • The trial court's order striking off the defence under R.5 O. XV is quashed; the defendant's defence is thereby reinstated.
  • The court treated the adjourned date fixed by the court (10-5-1977) as the "first hearing" for the purposes of R.5, and held that a tender on that adjourned date followed by deposit constitutes compliance with the rule.
  • The revisional approach taken by the District Judge was criticised as incorrect because he applied the framework of S.115 of the Code instead of S.25 of the Provincial Small Cause Courts Act.
  • Costs: the opinion records "Costs easy." (i.e., costs awarded in the result as recorded.)
  • No new precedent was expressly stated to have been created in the opinion; the decision applies statutory interpretation and existing principles to the facts to determine compliance with R.5 and the limits on striking off a defence.
Show full summary ...

    Mathura Prasad v. Vikram Jeet Singh

    1. This revision has been filed against the order of the Munsif Rae Bareli striking off the defence under R. 5 of O. XV of the Civil P.C and against the revisional order of the District Judge dismissing the revision. The facts relating to the case are as follows:

    A suit was instituted by the plaintiff for ejectment of the tenant and arrears of rent. The first date of appearance and hearing shown in the summons was 5-4-1977; the case was in the court of the Judge Small Causes. On 5-4-1977 the defendant applied for adjournment of the case and the case was adjourned to 10th May, 1977. On this date he filed a tender for the deposit of the amount of admitted rent in accordance with the requirement of R. 5 of O. XV of the Code as inserted in U.P The amount in accordance with this tender was deposited on May 12, 1977. The trial court ordered the striking off the defence on the ground that the deposit had not been made on the first date of hearing. The revision filed by the defendant was dismissed on the ground that there was no error of jurisdiction. The defendant has now filed the present revision. The learned District Judge was obviously in error in thinking that he was exercising such powers as are available under S. 115 of the Code while he was dealing with the revision filed under S. 25 of the Provincial Small Cause Courts Act. He considered the case on the basis of the jurisdictional error instead of considering it under the wider scope of S. 25 of the Provincial Small Cause Courts Act.

    2. The order of the Munsif is based on three grounds: first, that the tender of money was made not on 5-4-1977 but on 10-5-1977; second, that the amount was deposited not on 10-5-1977 but on 12-5-1977; and third, that the monthly rent was not deposited within a week. The third ground is obviously untenable because the question about deposit of rent for subsequent months could arise only after the deposit of the amount admitted to be due had been accepted. The second ground is also without merit; it has been held by this Court more than once that a tender of rent amounts to payment and tender followed by deposit is sufficient compliance of R. 5 of O. XV of the Code. The deposit will therefore be deemed to be made within time if the date of first hearing could be deemed to be May 10, 1977.

    3. The question, therefore, that arises in the case is whether May 10, 1977 could be deemed to be the date of the first hearing within the meaning of R. 5 of O. XV of the Code. Sub-rule (1) of R. 5 provides:

    “(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making, the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the court may subject to the provisions of sub-rule (2), strike off his defence.”

    Explanation 1.— The expression ‘first hearing’ means 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.”

    4. According to R. 5 of O. XV of the Code the amount admitted to be due has to be deposited “at or before the first hearing of the suit.” This must envisage a date which cannot be prior to the date of admission of the amount by the defendant. The question of striking off the defence can arise only after the defence has been filed and is known. The defence cannot be filed after the date of hearing of the suit, in a court of Small Causes normally the defence is filed on the same date on which the hearing is done, but the defence must precede the hearing. If the court changes the date of filing the defence, automatically the date of hearing is changed. The court cannot strike off the defence unless it knows that the defendant has admitted any amount of rent being in arrears. This also shows the sequence in which the things have to happen. The defence is to be filed first and then alone the question of striking off the defence on the ground of non-deposit of the admitted amount of rent can arise.

    5. Learned counsel for the respondent relied strongly on the Explanation and urged that the date mentioned in the summons must be the date of first hearing. The Explanation has to be read along with the main rule. The intention of the Explanation is to see that the admitted rent is paid before the case proceeds. Rule 5 contemplates the date of first hearing, i.e, the date on which the court wants to hear the case for the first time. If this were not so, the situation will become almost impossible when the court itself does not sit on the date of hearing mentioned in the summons. Section 22 of the Provincial Small Cause Courts Act provides:

    “When the Judge of a Court of Small Causes is absent and an Additional Judge has not been appointed or, having been appointed, is also absent, the Registrar or other chief ministerial official of the Court may exercise from time to time the power which the court possesses of adjourning the hearing of any suit or other proceedings, and fix a date for further hearing thereof.”

    6. The defendant cannot make the deposit of the amount in court if the court is not there. The interpretation therefore of the date of hearing must be in consonance with such a situation. When the law is to be interpreted, it must be interpreted in a manner so that all situations can be covered. Two interpretations cannot be given to date of hearing, one for the situation where the adjournment becomes necessary by the absence of the Presiding Officer, and another, when the Presiding Officer himself changes the date.

    7. In a suit instituted in a Court of Small Causes, the summonses are normally issued fixing all the dates together. In this case the date for appearance, for putting in defence or filing the written statement and for hearing was mentioned as April 5, 1977. When the defendant appeared on this date and applied for adjournment of the case, the Court adjourned the hearing and fixed 10th May, 1977 for hearing. The written statement was to be filed in the meanwhile. The court, thereafter, in effect, gave new dates for filing of the written statement and hearing. The question is the date of hearing is adjourned by the court and another date of hearing is fixed, which will be deemed to be the date of first hearing? It is the jurisdiction of the court to fix a date of hearing; if the court thinks it proper, it can change that date and fix another date as the date of hearing. When the court passes the order changing the date mentioned in the summons for the hearing of the case, it means that the date of hearing given in the summons had been altered and another date of hearing had been substituted. Any particular date cannot be deemed to be a date of hearing when it is changed and another date is fixed as the date of hearing. It is the latter date which becomes the date of hearing and the earlier date mentioned in the summons ceases to be such a date and must be deemed to have been substituted by the later date. In such a case, it would be the altered or adjourned date that will become the date of first hearing within the meaning of Explanation 1. The adjourned date, i.e, the date which the court finally fixes for the first hearing of the case, must therefore be deemed to be the date of first hearing for purposes of R. 5 of O. XV of the Code. The amount in the present case must accordingly be deemed to be deposited within the time contemplated by R. 5 of O. XV of the Code.

    8. The order of the trial court can also not be sustained as it does not show the application of mind by the learned Judge to the provision about the discretion contained in R. 5 of O. XV. Rule 5 does not make it mandatory on the court to strike off the defence or not to entertain the defence; the words are:

    “……… the court may subject to the provisions of sub-rule (2) strike off his defence.”

    9. sub-rule (2) runs as under:

    “Before making an order for striking off 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, of the expiry of the week referred to in sub-sec. (1), as the case may be.”

    10. The use of the word ‘may’ in R. 5, when at other places in the same rule the word ‘shall’ has been used, Indicates that the discretion has been given to the court to strike off the defence or not to strike it off. In a case where the court itself adjourns the hearing and fixes another date as the date of first hearing, the court tan exercise the discretion of not striking off the defence. The striking off the defence is in the nature of a penalty and the word ‘may’ must therefore be deemed to give to the court the discretion not to strike off defence if the circumstances so demand.

    11. The making of the application for adjournment on the date of hearing mentioned in the summons amounts to a representation within the meaning of sub-rule (2) to R. 5 of O. XV; and by granting the prayer and fixing new dates for filing the defence and hearing of the case, the court, in effect, accepts the representation and permits the making of the necessary deposit till the adjourned date of hearing.

    12. The power to strike off the defence being subject to the orders under sub-rule (2) could not be exercised against the defendant after the court had allowed him to file the defence by a latter date and had fixed another date for hearing of the case. The trial court therefore must be deemed to have exercised its jurisdiction illegally in striking off the defence.

    13. In the result, the revision is allowed and the order of the trial court strikink off the defence is set aside. Costs easy.

    14. Revision allowed.

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    Comments

    Mathura Prasad v. Vikram Jeet Singh
    (Feb 9, 1978)