SUDERSHAN DEVI AND ANR.versusSUSHILA DEVI AND ANR.

A                       SUDERSHAN DEVI AND ANR.
                                         v.
                          SUSHILA DEVI AND ANR.

                             SEPTEMBER 29, 1999
B
               [M. JAGANNADHA RAO AND M.B. SHAH, JJ.]

          Rent Control and Eviction.

          Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Evic-
C   tion) Act, 1972:-Section 20(4)-Default in payment of rent-Suit for Evic-
    tion-Tenants' rights to claim relief against eviction by depositing amars of
    rent on the ''first hearing of suit"-Summons issued fixing date of ''first
    hearing" on 20.2.90--Summons not accompanied by plaint-Fresh date for
    hearing fixed for 12.4.90--A"ears of rent deposited on 6.2.92:-Trial Court's
D   holding that a"ears of rent not deposited on due date-Eviction Ordel"-Af-
    finned by High Court-Validity of-Held, amars of rent not deposited on or
    before "the first hearing of suit"--Order of Eviction. confinned.

          Words and Phrases:
E
          "The first hearing of the suit'~eaning and scope of in the context of
    Section 20(4) of the Uttar Pradesh Urban Buildings (Regulation of Letting,
    Rent and Eviction) Act, 1972.

          Respondent no.1 filed a suit for eviction against her tenant on the
F ground of default in payment of rent. Notices were issued to the tenants
  by substituted service and the date for hearing was fixed on 22.2.90. The
  tenant filed an application seeking a copy of the plaint. The said applica·
  tion was allowed and next hearing was. fixed for 12.4.90. Thereafter, the
  matter was adjourned from time to time and the arrears of rent was
G deposited by tenants in the Cqurt on 6.2.1992. The Trial Court, decreed
  the suit holding that the arrears of rent were not deposited on the 'first
  hearing:of the suit' on 22.2.90 as provided under Section 20(4) of The Uttar
  Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act,
  1972. The said eviction order was affirmed by the District Court and the
H High Court. Aggrieved, tenants have preferred the present appeal.
                                        238
                  SUDERSHAN DEVI v. SU SHILA DEVI                      239
                                                                                  ~
       On behalf of the appellant-tenant it was contended that the words     A
'at the first hearing' meant the date when the first hearing actually took
place and not the date fixed in the summons for hearing; and that the
events that happened prior to the demise of the original tenant have to
be ignored.

      Dismissing the appeal, this Court                                      B
       HELD : 1. Appellant-tenant is not entitled to claiin relief against
eviction as the arrears of rent was not deposited on 'the first hearing of
suit'. Thus, High Court and Subordinate courts were justified in ordering
eviction under Section 20(4) of the Uttar Pradesh Urban Buildings            C
(Regulation of Letting, Rent and Eviction) Act, 1972 on the ground of
default in payment of arrears of rent. [243-D-E; 247-G]

       2.1. "The date oftirst hearing of the suit" appearing in Section 20(4)
of the Act and in the Explanation added thereto would not be the date
fixed for filing the written statement but would be the date proposed for D
the hearing i.e. the date proposed for applying the Court's mind to deter-
mine the points in controversy and to frame issues, if necessary. The due
date is the date fixed in the summons for final hearing. (251 -G; HJ

      Siraj Ahmad Siddiqui v. Prem Nath Kapoor, [1993) 4 SCC 406 and
Advaitea Anand v. Judge Small Causes Cou.rt, Meerut & Ors.; [1995) 3 SCC     E
407, relied on.

      Ved Prakash Wadhwa v. Vishwa Mohan, (1981) 3 SCC 667; Sham
Lal (dead) by Lrs. v. Atma Nand Jain Sabha, (1987) 1 SCC 222 and First
Addi. District and Sessions Judge, Saharanpur and Ors., (1989) 2 SCC 110,
referred to.                                                                 F

      Srinath Aggarwalv. Srinath, (1983) 2 ARC 422 and Sia Ram v. District
Judge, Kheri, (1984) 1 ARC 410 (FB), disapproved.

       2.2. In the instant case, the summons initially stated that the date
for first hearing i.e. the date fixed for final hearing would be 22.2.90. All G
the three courts below, therefore, held that the crucial date was 22.2.90
and there was clear default by 22.2.90. But 22.2.90 would not be the due
date. The summons were served in this case by 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 H
      240                    SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

; A 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 12.4.90. but the arrears were not deposited even by that date. The
      contention that the Presiding Officer was on training on the due date is
      not relevant in as much as there was no difficulty in depositing the rent
 B    in the manner prescribed. [253-A; B; CJ

            3. The events which took place before the date of death of the
      original tenant could not be ignored if prior to his death, the summons
      had indicated that the suit would be finally disposed of on a particular
      date if the rents etc. were not deposited by that date. [252-C]
 c            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6635 of
      1994.

           From the Judgment and Order dated 1.2.94 of the Allahabad High
      Court in C.M.W.P. No. 3787 of 1994.
 D
              C. Siddarth and R.C. Verma for the Appellants.

              S.C. Birla, Subrat Birla and P.K. Jain for the Respondent no. 1.

              Yashpal Dhingra for the Respondent no. 2.
 E            The Judgment of the Court was delivered by

            M. JAGANNADHA RAO, J. The appellants and the 2nd respondent
      are the legal representatives of the original tenant. The appeal is directed
      against the judgment of the High Court of Allahabad dated 1st February,
 F    1994, dismissing the appellants' Writ petition bearing Civil Miscellaneous
      W.P. No. Nil of 1994 (Smt. Sudershan Malhotra & Others v. Addi. District
      Judge, Hardwar). The 1st respondent is the landlady. The eviction case
      registered as Small Cause Case no. 6 of 1989 was filed by the 1st respon-
      dent under the provisions of the Uttar Pradesh Urban Buildings (Regula-
      tion of Letting, Rent and Eviction) Act, 1972 (Act 13/72) (hereinafter
  G   called 'the Act') against the tenant. It was decreed by the Trial Court on
      27.3.1993 on the ground that the arrears of rent were not deposited on due
      date under Section 20(4). Subsequently, the Small Causes Revision no.12
      of 1993 filed by the appellants was dismissed on 25.1.1994 by the revisional
      Court. Later, the High Court dismissed the appellants' writ petition. Thus,
  H   the decree for eviction was passed by the courts under Section 20(4) of the
        SUDERSHAN DEVI v. SUSHILA DEVI [M. JAGANNADHA RAO, J.] 241

      Act on the ground of non-deposit of the arrears of rent at 'the first hearing'    A
      of the case in the Trial Court. The te'nant's legal representatives have come
      up in appeal.

            The following are the relevant facts:

               Late Sharvan Kumar Malhotra was the tenant of the 1st respondent         B
        in respect of D.No.26/4, Civil Lines Hardwar Road, Roorkee, District
        Hardwar,(U.P.) from 1977 upon a monthly rent of Rs.70 (allegedly in-
       clusive of house tax and water tax). On the ground of default in payment
       of rent for 33 months from 2.6.1986 to 28.2.1989, the 1st respondent sent a
       notice dated 10.3.1989 to the tenant which notice was received by the
       tenant on or about 28.3.1989. The tenant sent a reply on 28.3.1989. The
                                                                                        c
        first respondent-landlady filed the present suit for eviction in 1989. The
        Trial Court found that the rent was due for more than four months, that
        the tenant was liable only to pay rent of Rs.70 and not the house tax or
        water tax, that there was default in payment of rent for 33 months as
        contended by the first respondent, that the arrears of rent were not            D
       deposited at the 'first hearing' of the suit but were deposited long there-
        after on 6.2.1992. The suit was therefore decreed for eviction under Section
       20( 4) of the Act and for arrears in a sum of Rs. 2310. The Trial Court
       found, in that connection, that the 'first hearing' was on 22.2.90 as per the
     . 'substituted service.' taken out by the first respondent. On 22.2.90, the        E
       tenant did not deposit the rents and hence the tenant was liable to be
       evicted. This view was affirmed by the District Court and by the High
        Court, as stated earlier.

             In as much as there was considerable debate before us as to whether
      the words 'at the first hearing' meant the date to which the matter was           F
      listed for 'first hearing' (as contended by the landlord-respondent) i.e. final
      hearing as this was a Small Cause suit, or whether it would be the date
      when the first hearing actually took place (as contended by the appellants-
      tenants ), - it would be necessary to refer to the various events which took
      place after the suit for eviction was filed, in some detail. ·
                                                                                        G
            No doubt the summons stated, this being a suit filed in the Small
      Causes Court, that the suit would be coming up for hearing on 22.2.90. But
      it must be noted that the service on the original tenant was by substituted
.-    service taken out by the first respondent. It appears that the substituted
      service did not comply with the requirement of serving a copy of the plaint.      H
    242                   SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A Therefore, on 22.2.90, the tenant filed an application for a copy of the
    plaint stating that the plaint was not made available since service was by
    'substituted service'. The suit and IA were adjourned for hearing for
    12.4.90. On 12.4.90 the arrears were not deposited. But as the Presiding
    Officer was on training, tqe hearing was adjourned to 3.5.90, on which day
B   the written statement was filed and parties were present. The matter was
    adjourned to 5.7.90 for hearing. On 5.7.90, parties were present and the
    case was again adjourned to 23.8.90 on which day parties were present but
    the officer was on leave, the tenant filed documents and filed a petition for
    fixing points for determination. The Suit and IA were adjourned to 29 .9 .90
    for hearing. From 1.9.90 to 4.10.90 the Court was closed due to lawyers'
C   strike. Suit was adjourned to 25.10.90 for hearing on which date parties
    were present, counter was received and suit was adjourned for hearing to
    15.11.90 on which day parties were present but case was again adjourned
    because of lawyers' strike to 6.12.90 for hearing, then to 20.12.90 when
    officer was on leave to 10.1.91, and thereafter to 24.1.91. On 24.1.91, the
D   tenant again filed IA for determining the points which according to him
    arose for consideration. The case was adjourned to 14.2.91. In the mean-
    time, the tenant died on 7.2.91. Application for substitution was filed on
    4.4.91, notice was ordered. The suit was thereafter adjourned on various
    dates for service on the legal representatives.

E          On 9.9.91 it was reported that only one of the legal representatives
    was served for the hearing proposed on 9.9.91. Plaintiff sought for sub-
    stituted service again to the other legal representatives and the suit was
    adjourned to 10.11.91 and to 8.1.92. On 8.1.92, the legal heirs were reported
    served but as they were absent, they were set ex-parte. The Suit was
F adjourned to 31.1.92 for ex-parte hearing. On 29.1.92, the legal repre-
    sentatives applied for setting aside the ex-parte order and sought time to
    file written statement. On 31.1.92, ex-parte order was set aside and 10 days
    time was granted for filing written statement and suit was adjourned for
  · 17 .3.92 for final hearing. On 6.2.92, arrears as stated in plaint were
    deposited.
G
          The points that arise for consideration in the appeal are :




H
           ( 1) What is the meaning of the word 'hearing' in the group of words
    'the first hearing of the suit' in Section 20(4) of the U.P. Act ( Act 13 of
    1972) and in the Explanation added thereto by U.P. Act 28/76?                   -
  SUDER.SHAN DEVI v. SUSHILA DEVI [M. JAGANNADHA RAO, J.] 243

       (2) Do the words 'the first hearing of the suit' in Section 20( 4) read    A
with the Explanation added by U.P. Act 28 of 1976 mean the date fixed
FOR THE PURPOSE of the 'hearing', i.e. for final disposal of the suit, or
for settlement of issues, if necessary; OR do they-mean the date when the
suit is actually disposed of or the issues are actually settled?
                                                                                  B
Point 1: S.20(4) of the U.P. Act:

      It is first necessary to refer to Section 20(4) of the U .P. Act, 1972 as
it stands amended by Act 28/76 (w.e.f. 5.7.1976) which added the
Explanation :
                                                                                  c
            "In any suit for eviction on the ground mentioned in clause (a)
        of sub-section (2), if at the first hearing of the suit the tenant
        unconditionally pays or (tenders to the landlord or deposits in
        Court) the entire amount of rent and damages for use and occupa-
        tion of the building due from him (such damages for use and               D
        occupation being calculated at the same rate as rent) together with
        interest thereon at the rate of nine per cent per annum and the
        landlord's costs of the suit in respect thereof, after deducting
        therefrom 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           E
        tenant against his liability for eviction on that ground;

            Provided that nothing in this sub-section, 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            F
        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        G
        step or proceeding mentioned in the summons served on the
        defendant;

          (b) the expression 'cost of the suit' includes one-half of the
        amount of counsel's fee taxable for a contested suit."           H
    244                  SUPREME COURT REPORTS [1999) SUPP. 3 S.C.R.

A U.P. Amendment to Small Causes Courts Act :
          Now a suit by the lessor against the lessee for eviction under Section
    20 upon giving a notice for determination of the tenancy has to be filed in
    the Court of Small Causes in view of the Amendment ( U.P. Act 37 of
    1972) to Section 15 and Article 4 of the Second Schedule of the Provincial
B   Small Causes Courts Act, 1887. Under Section 38 of the Act, the provisions
    of the U .P. Act "shall have effect notwithstanding anything inconsistent
    therewith contained in the Transfer of Property Act, 1882 (Act IV of 1882)
    or in the Code of Civil Procedure, 1908 (Act No. V of 1908)." That is how
    the suit for eviction under the U .P. Act of 1972 came to be filed in the
C   Small Causes Court.

    Summons in Small Cause Suits are for final disposal:

         So far as the method of issue of summons in Small Causes suits is
    concerned, the Code of Civil Procedure, 1908 makes a special provision.
D
          Now Order 5, Rule 1(1) contains the general procedure in suits,
    namely, that the summons directs the defendant to appear on the notified
    date to answer the claim on a day specified therein and that the Court may
    also direct him to file his written statement. Further, Order 5 Rule 2 states
    that every summons shall be accompanied by a copy of the plaint or, if so
E   permitted, by a concise statement. This provision is intended to enable the
    defendant to have notice of the contents and relief claimed in the suit.

         However, the proviso to Order 5, Rule 5 which deals with Small
    Cause Suits, lays down a slightly different procedure than what is stated in
F   Order 5, Rule 1 and reads as follows :

                 "Order 5, Rule 5 : 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; and the summons shall
             contain a direction accordingly :
G
                Provided that, in every suit heard by a Court of Small Causes,
             the summons shall be for the final disposal of the suit."

    Thus, while in other suits the Court has to decide at the time of summons
    whether it shall be for settlement of issues or for final disposal - so far as
H   suits heard by a Court of Small Causes are concerned, the summons shall
      SUDERSHAN DEVI v. SUSHILA DEVI [M. JAGANNADHA RAO, J.] 245

    be for the final disposal of the suit and under Order 5, Rule 8, on issue of     A·
    summons for final disposal, the defendant has also to be directed to
    produce his witnesses too on the day fixed for his appearance.

    The Form for summons as prescribed in the Code of Civil Procedure for
    Small Cause suits, is as follows :
                                                                                     B
                 "Whereas                                  has instituted a suit
            against you for ___ you are hereby summoned to appear in this
            Court in person or by a pleader duly instructed, and able to answer
            all material questions relating to the suit, or who shall be accom-
            panied by some person able to answer all such questions, on the
            __day of _ _ 19_, at __·_o'clock in the                     noon, to
                                                                                     c
            answer the claim; and as the day fixed for your appearance is
            appointed for the final disposal of the suit, you must be prepared
            to produce on that day all the witnesses upon whose evidence and
            all the documents upon which you intend to rely in support of your
            defence.                                                                 D
               Take notice that, in default of your appearance on the day
            before mentioned, the suit will be heard and determined in your
            absence.

               Given under my hand and the seal of the Court, this _ _ _day          E
            of - -19- -.

                                                                           Judge.

            Notice : 1. Should you apprehend your witnesses will not attend of
            their own accord, you can have a summons from this Court to              F
            compel the attendance of any witness, and the production of any
            document that you have a right to call upon the witness to produce,
            on applying to the Court and on depositing the necessary expenses.

               (2) If you admit the claim, you should pay the money into Court       G
            together with the costs of the suit, to avoid execution of the decree,
            which may be against your person or property, or both."


-   In other words, in Small Cause Suits, the summons will say that the suit is
    coming up on the notified date for 'final disposal' of the suit and the
    defendant must be prepared to produce his witnesses also.                   H
    246                  SUPREME COURT REPORTS [1999] SUPP. 3S.C.R.

A        The above Form for summons in Small Cause Suits as prescribed in
    the Code of Civil Procedure is in compliance with the proviso to Order 5,
    Rule 5 and also Order 5, Rule 8.

          Section 20( 4) of the U.P. Act of 1972 uses the words - "at the fir~t
B hearing of the suit" and requires the tenant to unconditionally pay or
    deposit or tender the entire amount of rent and damages, interest and costs
    after deducting amounts, if any, deposited under Section 30(1). The Ex-
    planation defines the "first. hearing" as the 'first date FOR any step or
    proceeding mentioned in the summons served on the defendant'. Now in
    the words 'first hearing', the emphasis is certainly on the word 'hearing'.
c            .
           Question arises under Point 1 as to whether the words "for any step
    or proceeding mentioned in the summons" used in the Explanation are
    meant to bring about any change in the understanding that in a Small Cause
    suit, notice is for final disposal of the suit on the specified date?
D
    Be/ore U.P. Amendment Act 28 of 1976. 'First' hearing meant date on wh.ich
    Court applied its mind to the case or on which the issues were settled or
    evidence taken.

          This Court had occasion to explain the meaning of the words 'first
E hearing of the suit' as they occurred in Section 20(4) of the U.P. Act, 1972,
    before the amendment of Section 20(4) in U.P. Act 28 of 1976, in Ved
    Prakash Wadhwa v. Vishwa Mohan, (1981) 3 SCC 667. It was held that the
  words 'first hearing' meant 'after framing of issues' when the suit would be
  posted for production of evidence. This Court referred in that context to
F Order 10, Rule 1, Order 14, Rule 1(5) and Order 15, Rule 1 and held that
  the 'first hearing of the suit' could never be earlier than the date fixed for
  preliminary examination of witnesses (Order 10 Rule 1) and the settlement
  of issues (Order 14 Rule 1(5)). In that case, the learned District Judge,
  ordered eviction on the ground that although the money was tendered
  before the first hearing, the actual deposit in the treasury was made later,
G which was a few days beyond the first hearing but before the framing of
  the issues. The deposit was on 18.9.1974 while the issues were framed on
  24.10.1975. This Court held that the deposit was in time. It was, however,
  observed (see p. 699 of SCC) that the Court was not there concerned with
  the Amendment by the Amending Act 28/76 when the Explanation was
H added.
                                                                                   -
       SUDERSHAN DEVI v. SUSHILA DEVI [M. JAGANNADHA RAO, J .] 247

            Thereafter, in Sham Lal (dead) by Lrs. V. Atme Nand Jain Sabha, A
     (1987) 1 SCC 222, though the case arose under Section 13(2)(i) of the East
     Punjab Urban Rent Restriction Act, 1949, reference was made to U.P. Act
     of 1972. It was observed that the provisions were pari materia. There the
     summons were served on the tenant 'returnable' by 26.6.69. On that date,
     the tenant appeared and prayed for adjournment to file written statement.
     The case was adjourned to 2.7.69. On that date written statement was filed B
     and the tenant tendered the arrears as fixed by the Rent Controller. The
     landlord accepted the same under protest. The High Court treated 26.6.69
     the date for return of summons as the date of first hearing. This Court
     observed that the date 26.6.69 mentioned in the summons could not be
     treated as the date of first 'hearing' because that was the date for ap- C
     pearance and the Court did not take up the hearing or apply its mind to
     the hearing of the application. It was only after the written statement was
     filed, issues were framed that the 'hearing' could commence. Ved Prakash
     Wadhwa was followed. This Court also clarified that the 'first day of
     hearing' would not be the day for return of the summons nor the returnable
     day but would m~an the day on which the Court applied its mind to the case D
     - which ordinarily, would be at the time when either the issues are detennined
     or evidence taken. It was stated that it was so held by the Bombay and
     Gujarat High Courts while dealing with Section 12(3)(b) of the Bombay
     Rents, Hotel and Lodging House Rates (Control) Act, 1947 and that that
     view was correct. The judgment of the High Court was set aside and the
     eviction suit was dismissed.                                                     E
          Subhash Chand Jain v. First Addi. District and Sessions Judge,
     Saharanpur and Ors., (1989) 2 SCC 110 again arose under the tJ.P. Act,
     1972 and· related to facts before the 1976 Amendment. The High Court
     ordered eviction and the same was confirmed by this Court. The tenant in
     that case did not appear on 4.4.75, the day fixed in the summons, the suit       F
     proceeded ex parte and was decreed. The ex-parte decree was set a,side and
     on 30.5.77 a fresh date was fixed for hearing, namely, 30.8.1977. But the
     deposit was made 9n 1.10.1977. A three Judge Bench of this Court ob-
     served that 30;8.77 would be the date of first hearing and that the deposit
-.   having been made much later, the High Court was right in ordering
     eviction.
                                                                                      G

     After Amendment by Act 28 of 1976 which introduced Explanation :

     First hearing means date fixed FOR PURPOSE OF framing disposal of suits
     or FOR PURPOSE OF framing issues, if necessary :                        H
    248                   SUPREME COURT REPORTS [1999) SUPP. 3 S.C.R.

A         After the Amendment, this Court had occasion to deal with the
    question in two cases :
                                                                                       '
                                                                                       >



           Siraj Ahmad Siddiqui v. Prem Nath Kapoor, [1993] 4 SCC 406 is the
    first case after the introduction of the Explanation by U .P. Amendment
    Act '}fl,/76. In that case, the Trial Court passed an order on 20.1.84 directing
B
    notice be issued to the tenant requiring him to file a written statement by
    22.2.1984 and fixed 2Jl,.2.84 for framing issues. On 22.2.1984, the Court .
    noticed that summons were not served and adjourned the suit to 2Jl,.2.1984.
    On 24.2.84, the tenant filed an application stating he had not received the
    summons and that he had not refused the summons, as indicated in the
c   return. He prayed that a specific date may .be fixed for filing written
    statement and for depositing arrears of rent. He also sought a copy of the
    plaint. On 24.2.84, the Court passed an order directing written statement
    to be filed in a month (i.e. upto 24.3.84) and posted the suit for "FH" to
    12.4.84 (in a Small Cause suit means final hearing) cancelling 2Jl,.2.84. The
    tenant made the deposit on 25.2.84. On 2.3.84, he filed an application
D
    stating that he had not received the copy of the plaint and therefore could
    not get the arrears computed. Therefore, he deposited something less than
    what was due as per the plaint and sought time for deposit of balance. The
    application was allowed and a fresh date of final hearing was given as
    12.4.84 without prejudice and on 5.3.84, the balance was deposited. This
E   Court held that the date for 'first hearing' was not the date of service of
    summons (P. 411, page 10), nor 24.2.84 when order was passed on the IA
    giving time for written statement (para 16). The date for first hearing was
    fixed as 12.4.84 because defendant had not received the plaint earlier. The
    earlier date for first hearing, namely, 2J1,.2.84 was expressly cancelled.
F   Hence the deposit was in time, well before 12.4.84.

          This Court, considered the meaning of the words 'step' in the Ex-
    planation, and held (para 13) that the first 'hearing' of the suit as per the
    Explanation did not mean the 'step' of filing of the written statement. This
                                                                                       ~
    was because of the fact that a written statement could be filed even earlier
G   than the first hearing "when the Court takes up th.e case''. It was held that,
    therefore, the date of 'first hearing' as per the Explanation would be the




H
    date on which the Court 'proposed' to apply its mind to determine the
    points in controversy between the parties and to frame issues, if necessary.
    This, the Court said, was clear because even the Explanation used the word
    'hearing'. This Court held (Para 13) :
                                                                                       -
  SUDERSHAN DEVI v. SUSHILADEVI [M.JAGANNADHARAO,J.]249

            "We are of the view, therefore, that the date of first hearing as     A
         defined in the said Act is the date on wi1ich 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."

      This Court further held (in para 16) as follows and this is important:
                                                                                  B
             "The date of first hearing in the instant case is not, therefore,
         February 24, 1984 whi;:n the Trial Court .passed orders on the
         application of the appellant for time to file a written statement and
         permission to deposit the full amount of the arrears. The conten-
         tion of learned counsel for the respondents to this effect must be
         rejected. Now, February 24, 1984 was a date earlier than the date
                                                                                  c
         of hearing mentioned in; the summons, namely, February 28, 1984.
         The Trial Court gave to the appellant time until March 2,4, 1984
         to file his written statement and deferred the date of final hearing
         to April 12, 1984, expressly cancelling the date February 28, 1984
         given in the summons. In our view, whether or not the provisions         D
         of Section 20(4) of the said Act were complied with by the
         appellant must be judged by the date of hearing so fixed. The full
         amount of the arrears was deposited on March 5, 1984; there was,
         therefore, compliance by the appellant with the provisions of
         Section 20(4) of the said Act prior to the earliest date fixed by the
                                                                                  E
         Court for the defendant to take the first step in the suit."

It will be noticed that, on the facts, it was held in that case that the
summons fixed the first hearing for 28.2.1984 initially, but that the summons
were not received nor the plaint. The Trial Court therefore passed an order
on 24.3.1984 fixing a revised date for final hearing, namely, 12.4.84. In those   F
circumstances, this Court treated 12.4.84 as the due date, i.e. the date for
the hearing, before which the rents had to be deposited. On facts, the
deposit was made on 5.3.84 itself. Hence, deposit was in time.

       This Court also approved in part (see paras 14, 15) the judgment of
the Allahabad High Court in Srinath Agganval v. Srinath, [1983] 2 ARC G
422. In that case, the High Court observed that under Order 5, Rule 1(1)
it was not obligatory to issue summons in the suit if the defendant volun-
tarily appeared and was informed about the claim and the date fixed for
hearing, it must be deemed that the defendant waived his right to summons.
In such a case, if some date is fixed for filing the written statement and for H
    250                    SUPREME COUR.T REPORTS [1999] SUPP. 3 S.C.R.

A hearing of the suit, it would rather be too technical a view to take. that
   service of summons in the ordinary course was still necessary. The Court
   order dated 11.9.78 passed in the presence of the party was to be treated
   as in the nature of summons and 24.10.78 was to be treated as the date for
   hearing of suit as informed to counsel. This Court held further that to the
B above extent, the Allahabad High Court was correct, and stated that "when
   time is fixed by the Court for filing of the written statement and hewing,
   these dates bind the defendant, regardless of the service of the summons
   and compliance with the provisions of Section 20( 4) of the said Act must
   be judged on the basis of the dates so {1.Xed." (As we shall presently show,
   this case in Srinath Aggarwal v. S1inath was overruled in a latter judgment
C of this Court, on the other aspect, namely to the extent it said that the
   period of one month fixed for filing written statement was to be treated as
 ·.the period fixed for the purposes of the Explanation).

           We then come to Advaita Anand v. Judge Small Causes Cowt, Meerut
D   & Ors., [1995] 3 SCC407. There the summons were issued fixing 23.3.93
    for filing written statement and fixing 28.3.93 for the first hearing. The
    plaint was not annexed to the summons. Therefore, the tenant filed IA on
    28.3.90 for copy of the hearing. The plaint was supplied on 28.3.90 itself
    and on that date the Court passed an order directing written statement to
E   be filed in one month (i.e. by 27.4.90) and fixing 24.7.90 for final hearing
    the suit. The deposit was made on 2.5.90. The High Court referred to the
    Explanation and held that the date fixed for filing written statement (i.e.
    27.4.90) was the date on which a 'step' was to be taken in the suit and that
    the deposit made on 2.5.90 was beyond time. But this Court disagreed, and
    following Siraj Ahmed Siddiqui 's case, held that notwithstanding that the
F   summons fixed one date for filing written statement and another latter date
    for final hearing, the date for 'first hearing' was not the date fixed for filing
    the written statement but it was 24.7.90. It would be noticed that 24.7.90
    was the revised date for first or final hearing and that was treated as the
    due date for deposit.
G
          This Court, in Advaita Anand's Case, disagreed with the Full Bench
    of the Allahabad High Court in Sia Ram v. Disflict Judge, Kheri, (1984) 1
    ARC 410 (FB)) and reiterated what was stated in Ved Prakash Wadhwa's
    case, and in Siraj Ahmad Siddiqui's Case as to the meaning of 'first date
H   of any step or proceeding' and observed (para 7 of sec P. 410) as follows:
   SUDERSHAN DEVI v. SUSHILA DEVI [M. JAGANNADHA RAO, J.] 251

         "We find that in Siraj Ahmad Siddiqui's case this Court took note     A
         of the Explanation and has observed that it was not possible to
         construe the words "fixed tl'ate for any step or proceeding", which
         were contained in the Explanation, to mean the step of filing the
         written statement, though the date for that purpose may be men-
         tioned in the summons, for the reason that it is permissible under    B
         the Code of Civil Procedure for the defendant to file a written
         statement. even thereafter but prior to the first hearing when the
         court tak~s up the case. It cannot, therefore, be said that the
       . Explanation to Section 20( 4) was not given due consideration in
         Siraj Ahmad Siddiqui".                                                C

This Court again reiterated (Para 7) :

            "The said decision ( Siraj Ahmad Siddiqui) shows that even
        after the insertion of the Explanation, the expression, "first hearing
        of the suit" in Section 20(4) means the date on which the D
        court proposes to apply its mind to determine the points in con-
        troversy between the parties to the suit and to frame issues, if
        necessary."

      Advaita Anand then referred to the ruling of the Allahabad High          E
Court in Sri Nath Aggarwal v. Srinath, (1983) 2 ARC 422) and pointed out
thatthat ruling was only partly approved in Siraj Ahmad Siddiqui 's case to
the extent of waiver of summons. But after stating so, this Court in Advaita
Anand expressly overruled Srinath Aggarwal to the extent that that ruling
held that the date for filing of the written statement was a step in the
                                                                               F
proceeding for purposes of the Explanation.

      Thus both in SirajAhmad 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         G
proposed for applyi_ng 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.

POINT 2:                                                                       H
    252                   SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A        Learned Counsel for the appellants-tenants, contended that the
  events that happened prior to the demise of the original tenant on 7.2.91
  have to be ignored, that thereafter the legal representatives were set
  ex-parte on 8.1.92, that that order was set aside on 31.1.92 and ten days time
  was given to the legal representatives to file written statement, the suit was
  adjourned to 17.3.92 and the arrears were dep?sited on 6.2.92 and hence
B there was compliance with Section 20(4). Learned counsel for the appel-
  lants also contended that it is the actual date of hearing or framing of issues
  that is relevant and not the date fixed therefor in the summons.

          In our view, the events which took place before the date of death of
C the original tenant on 7.2.91 could not be ignored if prior to his death, the
    summons had indicated that the suit would be finally disposed of on a
    particular date and if factually the rents etc. were not deposited by that
    date. Therefore, we shall have to examine what happened before 7.2.91,
    the date of death of the tenant.
D
          The question is whether it is the actual date of hearing or framing of
    issues, that is relevant or the date mentioned in the summons for the
    aforesaid purpose?

          The position after Siraj Ahmad Siddiqui and Advaita Anand is as
E follows. This Court held in those cases that the date fixed for filing the
      written statement was not the due date and that it was the fresh date
     proposed for 'first hearing' of the suit that would be the due date. It was
    · observed, that the crucial date even after the Explanation was the date on
      which
F
                 "the Court proposes to apply its mind to determine the points
             in controversy between the parties to this suit and to frame issue,
             if necessary;''

  In our view, the use of the words 'proposing to apply its mind' and the
G word 'for' final hearing used in Siraj Ahmad Siddiqui's.case and inAdvaita
  Anand's case are significant. In fact, though S.20(4) uses the word 'at', the
  Explanation uses the word 'for'. Therefore, we cannot accept the conten-
  tion of the learned counsel for the tenant-appellants that the due date is
  the actual date when the final hearing takes place. The due date is the date
H fixed in the summons for final hearing as explained above in Point 1.
  SUDERSHAN DEVI v. SU SHILA DEVI [M. JAGANNADHA RAO, J.] 253

       In the present case before us, the case being one tried by the Small      A
Causes Court, the summons initially stated that the date for first hearing
i.e. the date fixed for final hearing would be 22.2.90. All the three courts
below, therefore, held that the crucial date was 22.2.90 and there was clear
default by 22.2.90. But, in our opinion, 22.2.90 would not be the due date.
The summons were served in this case by the method of substituted service
and it was common ground that the summons were not accompanied by
                                                                                 B
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 12.4.90. But the arrears were not deposited even by that date.

      It is also true that on 12.4.90, the Presiding Officer was on training
                                                                                 c
but that, in our view, is not relevant in as much as there is no difficulty in
depositing the rents etc. in the manner prescribed.

      Therefore, we confirm the Judgments of the High Court and of the
Subordinate Courts though for different reasons. The Appeal fails and is         D
dismissed but without costs.

      The appellants are however, granted six months time from today to
vacate subject to filing usual undertaking in this Court within four weeks
from today. If the undertaking is not filed or if the terms of the undertaking
are not complied with, the decree for eviction can be executed forthwith         E
without reference to this Court

S.V.K.I.                                                  Appeal dismissed.