Sia Ram v. District Judge

K.N Goyal, J.:— This is a tenant's writ petition arising out of a suit for rent and ejectment filed by the landlords opposite-parties 3 and 4. The suit was filed in Dec. 1977 in the Court of Small Causes. Arrears of rent were claimed for the period from Nov. 1975 to Aug. 1977. The building was governed by the U.P Urban Buildings (Regulation of Letting. Rent and Eviction Act Eviction was claimed on the ground of default under S. 20(2)(a) of that Act. The date of hearing mentioned in the summons issued to the defendant-petitioner was 6-1-78. On that date he moved for adjournment on the ground that his Counsel had gone out. The case was adjourned to 10-2-78. On that date the defendant-petitioner made an application for permission to deposit the arrears of rent along with costs etc. in accordance with S. 20(4) of the Act. He was allowed to deposit the amount at his own risk; in other words, the question whether the deposit would be deemed sufficient compliance with the provisions of S. 20(4) was left open. This question was the subject-matter of issue No. 2 framed in the case. The trial Court held that in view of the Explanation (a) appended to S. 20(4) the first hearing was 6-1-78, the date mentioned in the summons, and inasmuch as the sum required to be deposited had not been deposited on that date, the defendant was not entitled to the benefit of S. 20(4). The defendant having been found a defaulter, a decree or eviction was passed against him. The District Judge in a revision under S. 25 of the Provincial Small Cause Courts Act agreed with the trial Court and dismissed the revision. Thereupon the petitioner came to this Court.

2. The learned single Judge before whom the petition came up for disposal was confronted with conflicting views expressed in Gaya Prasad v. Pramod Kumar Shukla, 1980 Luck LJ 56, and Jagannath v. Ram Chander Srivastava, 1982 All LJ 1324, and accordingly, referred the whole case to a larger Bench. It is thus that this case has come up before us. In Gaya Prasad v. Pramod Kumar Shukla (supra) it was decided that the date of “first hearing” would include a date of hearing changed by the Court either suo motu or on the application of one of the parties. In Jagannath v. Ram Chander Srivastava (supra) on the otjher hand, it was held by another Bench that the date of “first hearing” would be only the date mentioned in the summons and not an adjourned date?

3. After the U.P urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. 13 of 1972) was passed, the U.P Legislature also passed the U.P Civil Laws Amendment Act, 1972 (Act No. 37 of 1972), whereby a new R. 5 was added to O. XV of the Civil P.C This new R. 5 provided that in any suit for ejectment and arrears of rent the defendant shall, at or before the first hearing of the suit, deposit the entire amount of rent admitted by him to be due, and thereafter throughout the continuance of the suit, deposit regularly the amount of monthly rent, due at the rate admitted by him, and in the event of any default in this regard, the Court may, unless after considering any representation made by him in that behalf it allows him further time on security being furnished for the amount, refuse to entertain any defence or, as the case may be, strike off his defence.

4. Section 20(4) of U.P Act 13 of 1972, on the other hand provided that in any suit for eviction on the ground of default in arrears of payment mentioned in Cl. (a) of sub-sec. (2) of S. 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 9 per cent per annum and the landlord's costs 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 that ground. This was subject to an exception mentioned in the proviso to that sub-section, with which we are not concerned in the instant case.

5. Thus both S. 20(4) of the Act No. 13 of 1972 and O. XV, R. 5, CPC added by Act No. 37 of 1972 use the expression “first hearing”. This expression came up for judicial interpretation in a number of decisions and it was decided by this Court that the expression would include a date on which the date of hearing is adjourned by the Court for any reason whatsoever. Among the cases in which this view was expressed were Krishan Lal v. L. Narendra Kumar Jain, 1978 All LJ 1102 and Mathura Prasad v. Bikram Jeet Singh, 1978 Luck LJ 85 : (1978 All LJ 384). This view was ultimately approved by the Hon'ble Supreme Court in Ved Prakash Wadhwa v. Vishwa Mohan, (1981) 3 SCC 667 : AIR 1982 SC 816 : (1982 All LJ 202), a case under S. 20(4) of Act No. 13 of 1972 as it stood prior to an amendment made by U.P Act No. 28 of 1976, which shall presently be noticed.

6. O. XV, R. 5, CPC was amended in 1976 and the following Explanation was added:—

“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.”

7. An Explanation was also added by Act 28 of 1976 to S. 20(4) of Act 13 of 1972, and the said Explanation was as follows:—

“(a) The expression ‘first hearing’ means the first date for any step or proceeding mentioned in the summons served on the defendant.”

8. The insertion of these Explanations by the U.P State Legislature gave an artificial meaning to the expression “first hearing” which was not the meaning given by the Courts earlier and also different from the meaning given to the expression occurring in O. VIII, R. 1(1) or in O. X, R. 1 or in O. XV, R. 1 of the Civil P.C Indeed, so far as the original provisions of the Civil P.C are concerned, the Supreme Court has observed in Wadhwa's case (1982 All LJ 202) (supra) that the said “provisions indicate that the first hearing of the suit can never be earlier than the date fixed for the preliminary examination of the parties (O. 10, R. 1) and the settlement of issues (O. 14, R. 1(5))”. If the intention of the Legislature was merely to clarify the law, the meaning given to the expression “first hearing” would have been same as given by the Courts with reference to the said various provisions of the Code. Instead the Legislature chose to provide a legal fiction whereby a different meaning was given to the expression “first hearing”. Even this different meaning was not identical in the two enactments. As we have already seen, the fictional meaning given to the expression occurring in S. 20(4) of Act 13 of 1972 was different from the fictional meaning given to the expression occurring in O. XV, R. 5. When the Legislature specifically steps in to undo the effect of judicial interpretation or to give to any particular expression a special meaning which is different from the meaning accepted earlier, then it is not open to a Court to say that the same meaning must prevail even after the legislative amendment. If the words of a statute are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declare the intention of the Legislature. It is not permissible to the Court to add or subtract words unless the context necessarily requires. It is also not permissible to hold that what the Legislature has provided was redundant. Due meaning has to be given to the Explanation specially inserted by the Legislature. A legal fiction ordained by the Legislature cannot be wiped out by the Court.

9. It has been held in various decisions that after the aforesaid amendment, for purposes of S. 20(4), it is only the date mentioned in the summons and not any adjourned date that should be treated as the date of first hearing. A reference may be made in this connection to the decisions in Rafiq Ahmad v. III Addl. District Judge, 1982 All Rent Cas. 371, (M.P Mehrotra, J.), Champa Ram v. 1st Addl. District Judge, 1982 (UP) RCC 608, (A.N Varma, I.), and Jagannath v. Ram Chandra Srivastava, 1982 All Rent Cas 665 : (1982 All LJ 1324), (a decision of Division Bench consisting of Chief Justice and A.N Varma, J.

10. However, a Contrary view has been taken in Subhash Chand Jain v. 1st Addl. Distt. Judge, 1982 (UP) RCC 429 : (1982 All LJ 1087), Krishan Lal v. L. Narendra Kumar Jain, 1978 All LJ 102, and in Gaya Prasad v. Pramod Kumar, 1980 Luck LJ 56;

11. In Subhash Chand Jain (supra) the view expressed in Krishan Lal v. L. Narendra Kumar Jain (supra) was followed and it was observed that the series of decisions in which the same view had been taken, had been approved by the Supreme Court, in Wadhwa's case (1982 All LJ 202) (supra). It was, however, not noticed that I Wadhwa's case related to the provisions of S. 20(4) as it stood prior to its amendment in 1976. Krishan Lal v. L. Narendra Kumar Jain (supra) did refer to the explanation added to S. 20(4). In that case, on the date mentioned in the summons curfew was imposed in the city and the parties could not attend the Court, as a result of which the hearing was adjourned. On the dates on which the hearing was so adjourned, the defendant made the deposit required by S. 20(4). Imposition of curfew in the town, on account of which the Parties could not reach the Court, is in effect similar to closure of the court. Under S. 10 of the U.P General Clauses Act, where, by any U.P Act, any act is directed or allowed to be done in any Court on a certain day or within a prescribed time, then, if the Court is closed on that day or the last day of the prescribed period, the act shall be done in due time if it is done on the next day afterwards on which the Court is open. Perhaps the principle of this section could be applied to a case of emergency caused by imposition of curfew. That was, however, not argued before the Court and it was assumed that the act could be done only on the next day fixed by the Court. Thus the case is distinguishable on facts. We are not directly concerned in the instant case with emergent and exceptional situations such as those caused by the imposition of curfew or any strike by Advocates or officials of a Court on a particular date, on which an act is required to be done.

12. As held in National Sewing Thread Co. Ltd. v. James Chadwick and Bros. Ltd., AIR 1953 SC 357 at 360 (para 8) the canons of construction contained in the General Clauses Act are of general application and the principles underlying them may be applied even where the provisions of the Act are not in terms applicable. We are, therefore, of the opinion that even where the Court is not formally closed but for all practical purposes it is so closed because the working of the court or its office is paralysed on account of some emergency, then too the principles underlying S. 10 of the U.P General Clauses Act may apply. S. 10 of the General Clauses Act, like S. 4 of the Limitation Act, embodies the general principle enshrined in the two maxims, (i) lex non cogit ad impossibilia and (ii) actus curiae neminem gravabit:

13. The principle cannot, however, be extended to cases where failure to make the deposit is not relatable to the court's working but to some cause personal to the defendant or his counsel. For it is well settled that in such statutes where a period is prescribed for the doing of a particular act, not being the making of an application or filing of an appeal the provisions of S. 5, Limitation Act, cannot be applied, nor the principles underlying S. 5 be imported, vide Madurambal Ammal v. Narasinga Rajan, (1980) 2 Mad LJ 563.

14. The Division Bench decision in Gaya Prasad v. Pramod Kumar Shukla (1980 Luck LJ 56) (supra) relates to O. XV, R. 5 and not to S. 20(4) and merely follows the earlier decision in Krishan Lal v. L.N Narendra Kumar Jain (1978 All LJ 1102) without noticing the distinguishing feature mentioned above. We are, therefore, unable to subscribe to this decision.

15. A learned single Judge (S.S Ahmad, J.) in an unreported decision in Writ Petn. No. 3752 of 1983 (Smt. Vimla Tripathi v. Vth Addl. District Judge), decided on 8-8-83, has taken the view, after considering various decisions, that even where the Court on the date mentioned in the summons, adjourns the case to some other date without transacting any business or without applying its judicial mind to the lis, the date of first hearing for purposes of S. 20(4) would still be the date mentioned in the summons. The learned single Judge has gone on to add that if, however, on the date mentioned in the summons, the Presiding Officer of the Court concerned is absent or the Court is not available for taking up the case on that date, then the date mentioned in the summons will not be treated to be the date of the first hearing. Normally, the presence of a Presiding Officer on a particular date of hearing should not act as an impediment in the way of the defendant filing his tender for deposit under S. 20(4). The Presiding Officer of the link Court can pass suitable orders on that application. Indeed, it is well settled that if tender has been submitted within time but the Court itself does not accept the tender immediately, any deposit made on the tender when accepted should relate back to the date when the tender was submitted, vide Wadhwa's case (1982 All LJ 202) (supra) (para 4 of the report). Thus in our opinion, even the exception carved out in Smt. Vimala Tripathi's case should not hold good. The only exception would be cases where the court is closed, either formally or for all practical purposes though not formally, and even in those cases the deposit should be made on the very next date on which the Courts open or are able to function.

16. We are, accordingly, of the view that the Division Bench decision in Jagannath v. Ram Chandra Srivastava, 1982 All LJ 1324, is correctly decided, while the Division Bench decision in Gaya Prasad v. Pramod Kumar Shukla, 1980 Luck LJ 56, and various single Judge decisions taking the same view cannot be accepted as laying down correct law.

17. Reference has also been made before us to a decision in Shafiqur Rahman Khan v. IInd Addl. District Judge, 1982 All Rent Cas 729 rendered by the Division Bench. In that case the summons received by the defendant was not accompanied by a copy of the plaint. It was thus held that there was no proper service of the summons itself. As such it was held that the Explanation (a) to sub-sec. (4) of S. 20 of Act 13 of 1972 was not attracted to such incomplete service of summons. That decision is not affected by the conclusions reached above. It has not been averred in the present writ petition that the summons served on the defendant was not accompanied by a copy of the plaint. As such the decision is of no assistance to him.

18. It may also be mentioned in this connection that the general principles underlying O. XV, R. 5 CPC, and to S. 20(4) of Act 13 of 1972 are different. The former provision is of a penal nature, and the power of the Court to strike off the defence is merely discretionary and the Court is not bound to do so. On the other hand, the provisions of S. 20(4) are by way of providing locus paenitentiae for a tenant who has been a defaulter and has thus forfeited the protection of the rent control law. It gives him a further opportunity to redeem his position, which has the effect of depriving the landlord of the right that has accrued to him as a result of the earlier default of the tenant. The Legislature cannot, therefore, be said to have acted unreasonably in requiring the tenant to comply with the provisions of S. 20(4) more strictly than with the provisions of O. XV, R. 5, C.P.C This distinction has been noted in various decisions such as Rafiq Ahmad v. III Addl. District Judge (1982 All Rent Cas 371) (supra), Bharagu Dutta Singh v. Shyamkishore, 1980 Luck LJ 62, and several other decisions.

19. We are, therefore, of the opinion that the petitioner was not entitled to the benefit of S. 20(4). However, we find that certain other pleas such as invalidity of the notice have also been taken in the writ petition and no arguments were addressed on the same. We, therefore, direct that the case be placed again before the learned single Judge with our answer as above.

20. Order accordingly.