Uttarakhand High Court
Siyaram Chauhan Alias Surendra Singh vs Bachan Singh on 15 May, 2017
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Civil Revision No. 26 of 2016
Siyaram Chauhan Alias Surendra Singh
.... Appellant
Versus
Bachan Singh
.... Respondent
Mr. Rajat Mittal, Advocate for the appellant.
Mr. B.D. Pande, Advocate along with Mr. J.S. Virk, Advocate for the respondent.
Hon'ble Servesh Kumar Gupta, J.
The judgment and order dated 02.02.2016 rendered by Judge Small Causes Court / Additional District Judge, Vikas Nagar, Dehradun, is under challenge by the tenant/revisionist Shri Siyaram Chauhan @ Surendra Singh. This property was purchased by the landlord Shri Bachan Singh from its previous owner on 24.9.2004 and it was under the tenancy of Shri Chauhan even almost two decades before such purchase as indicated above. It comprises a single room bearing no. 268 Sadar Bazar, Chakrata, District Dehradun. After purchase of this property by Shri Bachan Singh, he became the new landlord and Mr. Chauhan used to pay the rent at the rate of Rs. 600/- per month. But, claiming the default in the payment of such rent as well as disputing the rate of rent a JSCC suit no. 57/2013 was presented on 13.11.2013.
The first date fixed, wherefor, the summon was sent to the defendant for filing the written statement/final hearing, was 13.12.2013. Somehow, service could not be affected upon the opposite party/defendant, so, on next date viz. 13.12.2013, the plaintiff was directed to take steps further as fixing the date 27.01.2014, but again there could 2 not be any service, so, on the date 27.01.2014 again the directions were issued for taking the steps fixing 04.3.2014 for filing written statement/formulation of point of determinations.
On 04.3.2014, the defendant appeared and sought the adjournment seeking some time to file the written statement. It was granted and again the date 02.4.2014 was fixed for filing the written statement and framing the issues.
On 02.4.2014, the defendant again moved an adjournment application seeking further time to file the written statement. It was accordingly granted for two weeks and thus, 20.4.2014 was fixed for framing the issues/final hearing.
Meanwhile, the case was transferred to the court of Additional District Judge, Vikas Nagar, Dehradun. On 30.4.2014, the adjournment application was moved by the defendant once more and the case was fixed up for 20.5.2014 for filing the written statement only.
Although, no written statement could be filed by 20.5.2014, but the tenant deposited the whole rent on 09.5.2014 vide Challan paper no. 30 C to the tune of Rs. 24,000/-, which was admitted by him at the rate of Rs. 600/- per month, due from May, 2012 to April, 2014.
It has been argued by the learned counsel of the landlord that the rate of rent was Rs. 2,200/- per month, but the court below has discarded this rate of rent, as claimed by the landlord, and accepted the rate of Rs. 600/- per month, as disclosed by the tenant, for the reasons adverted in the impugned judgment and I am also not persuaded to take a different view in this regard.
Now, the whole controversy revolves around the question whether the tenant made default in payment of the rent on the date of first hearing as contemplated by Section 20 (4) of the U.P. Urban Rent Control Act.
3In this regard, the position has been made clear by the Hon'ble Apex Court in the case of Ashok Kumar & Others vs. Rishi Ram & Others (2002) 5 SCC Page 641, wherein three other cases were also referred and relied:
1. (1999) 8 SCC 31, Sudershan Devi v. Sushila Devi
2. (1995) 3 SCC 407, Advaita Nand v. Judge, Small Cause Court, Meerut.
3. (1993) 4 SCC 406, Siraj Ahmad Siddiqui v. Prem Nath Kapoor (Constitutional Bench Judgment).
It was categorically held:
"Order 5 Rule 5 CPC 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.
Order 15 Rule 5 Expln. 1 CPC defines the expression "first hearing" to mean the date for filing written statement or for hearing mentioned in the summons or mentioned. But the said expression is defined in clause (a) of the 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 the Code of Civil Procedure, therefore, the definition contained in clause (a) of the Explanation to sub-section (4) of Section 20 of the Act will prevail over the definition contained in Rule 5 of Order 15 CPC 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 15, the language employed in clause (a) of the Explanation to Section 20 (4) of the U.P. Act, refers 4 to "the first date for any step or proceeding mentioned in the summons served on the defendant". 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."
In view of what has been held by the Hon'ble Apex Court, I hold that the learned Trial Judge has been confused to determine the date of first hearing and the case in hand, as has been set forth above. The whole amount, which was admitted to be due by the tenant had been deposited even before filing the written statement on 01.7.2014. The date of the deposit of the rent 09.5.2014 is certainly much prior than the date of first hearing, which in the case in hand shall be deemed to be 01.7.2014.
So, I think this revision has merits. It is hereby allowed. The impugned judgment and order of the learned Trial Judge is set aside.
However, it is made clear that if the condition of the building is dilapidated or the landlord is in the personal need of the demised premises then he will be at liberty to put his claim before the appropriate forum.
LCR be sent back.
(Servesh Kumar Gupta, J.) 15.5.2017 Pooja