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PETITIONER: SUDERSHAN DEVI & ANR.

       Vs.

RESPONDENT: SUSHILA DEVI & ANR.

DATE OF JUDGMENT:       29/09/1999

BENCH: M.B.Shah, M.J.Rao,

JUDGMENT:

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, 1994, dismissing the appellants’  writ petition  bearing  Civil  Miscellaneous   W.P.   No.Nil   of 1994(Smt.   Sudershan Malhotra & Others Vs.  Addl.  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 respondent under the provisions of the Uttar  Pradesh  Urban Buildings(Regulation of Letting,  Rent and Eviction) Act, 1972 (Act 13/72) (hereinafter called ’the Act’) against the tenant.  It was decreed by the trial court on  27.3.1993on 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, the decree for eviction was passed by  the courts  under  Section  20(4) of the Act on  the  ground  of non-deposit  of  the  arrears  of rent  at  the  "the  first hearing" of the case in the trial court.  The tenant’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  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 inclusive 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  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 deposited at the  ’first hearing’  of the suit but were deposited long thereafter  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

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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 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 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.  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. 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, the hearing was adjourned to  3.5.90, on which day 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 to4.10.90 the Court was closed due to  lawyers’  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 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  meantime,  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.

     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 substituted 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 adjourned to  31.1.92  for  ex-parte hearing.   On 29.1.92, the legal representatives 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.

     The  points that arise for consideration in the appeal

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are:   (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?  (2) Do  the words  "the first hearing of the suit" in Section 20(4) read 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? 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:

     "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 occupation of the building due from him (  such  damages for use and 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 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 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 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."

     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  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 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.

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     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 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 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:

     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 suits heard  by  a Court  of  Small Causes are concerned, the summons shall  be for  the final disposal of the suit and under Order 5,  Rule 8, on issue of 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:

     "Whereas  _________________________has   instituted  a suit  against  you  for ______ your 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 accompanied by  some person  able to answer all such questions, on the ____day of _____19__,  at  ______o’clock in the _______noon, to  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.

     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 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 compel the attendance of any witness, and the production  of  any document that you have a right  to  call

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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  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.

     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 first 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  Explanation  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’.   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?   Before U.P.  Amendment Act 28 of 1976.’First’ hearing meant date on which  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  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  Vs.  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 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, 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 added.  Thereafter,  in Sham  Lal  (dead) by Lrs.  Vs.  Atme Nand Jain Sabha (  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

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that  date  written  statement  was  filed  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 appearance and the  Court  did not take up the hearing or apply it 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 mean the day on which  the  Court applied its mind to the case - which ordinarily, would be at the  time when either the issues are determined 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.  .pa

     Subhash  Chand  Jain  Vs.  First Addl.   District  and Sessions  Judge,  Saharanpur  and Ors.  ( 1989(2)  SCC  110) again  arose under the U.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 proceeded ex parte and was decreed.   The ex  parte  decree was set aside and on 30.5.77 a fresh  date was  fixed for hearing, namely, 30.8.1977.  But the  deposit was  made  on 1.10.1977.  A three Judge Bench of this  Court observed 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.

     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:

     After  the Amendment, this Court had occasion to  deal with  the  question in two cases:  Siraj Ahmad Siddiqui  Vs. Prem Nath Kapoor ( 1993 (4) SCC 406) is the first case after the  introduction of the Explanation by U.P.  Amendment  Act 28/76.   In  that case, the trial Court passed an  order  on 20.1.84  directing notice be issued to the tenant  requiring him  to  file  a written statement by  22.2.1984  and  fixed 28.2.84 for framing issues.  On 22.2.1984, the court noticed that  summons  were  not served and adjourned  the  suit  to 28.2.1984.   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 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 28.2.84.  The tenant made the deposit on 25.2.84. On  2.3.84, he filed an application stating that he had  not received  the copy of the plaint and therefore could not get

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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 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,  28.2.84  was expressly  cancelled.   Hence the deposit was in time,  well before 12.4.84.

     This Court, considered the meaning of the words "step" in  the  Explanation,  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 than the first hearing " when the Court  takes up  the  case".   It was held that, therefore, the  date  of ’first  hearing’ as per the Explanation would be the 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) :

     "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."

     This  Court further held ( in para 16) as follows  and this is important:

     "The date of first hearing in the instant case is not, therefore,  February  24, 1984 when 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 contention of learned  counsel for  the respondents to this effect must be rejected.   Now, February  24,  1984  was  a date earlier than  the  date  of hearing mentioned in the summons, namely, February 28, 1984. The  trial Court gave to the appellant time until March  24, 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 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 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

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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 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 Aggarwal Vs.   Srinath  ( 1983(2) ARC 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 voluntarily  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 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 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 hearing, 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 fixed."  (As  we shall presently show, this case in  Srinath Aggarwal  Vs.  Srinath was overruled in a latter judgment 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 Vs.  Judge Small Causes Court,  Meerut & Ors (1995 (3) SCC 407).  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 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 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.   This  Court, in Advaita Anand’s  Case,  disagreed with  the Full Bench of the Allahabad High Court in Sia  Ram Vs.   District  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  of any step or proceeding’ and observed (para 7 of SCC P.410) as follows:-

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     "We  find  that in Siraj Ahmad Siddiqui’s  this  Court took  note  of the Explanation and has observed that it  was not  possible to construe the words "fixed date 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 mentioned in the summons,  for the  reason  that it is permissible under the Code of  Civil Procedure for the defendant to file a written statement even thereafter  but  prior to the first hearing when  the  court takes  up the case.  It cannot, therefore, be said that  the Explanation to Section 20(4) was not given due consideration in Siraj Ahmad Siddiqui".

     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 court proposes to apply its mind to  determine the  points  in controversy between the parties to the  suit and to frame issues, if necessary."

     Advaita  Anand  then  referred to the  ruling  of  the Allahabad  High  Court in Sri Nath Aggarwal Vs.   Srinath  ( 1983(2)  ARC 422) and pointed out that that 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 proceeding for purposes of  the  Explanation.  Thus both in Siraj Ahmad  Siddiqui  & 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 proposed for applying 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:  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  deposited  on 6.2.92  and  hence there was compliance with Section  20(4). Learned counsel for the appellants 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 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. The  question is whether it is the actual date of hearing or framing of issues, that is relevant or the date mentioned in

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the summons for the aforesaid purpose?

     The  position  after Siraj Ahmad Siddiqui and  Advaita Anand  is  as 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

     "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 word "proposing to  apply its  mind"  and the word "for" final hearing used  in  Siraj Ahmad  Siddiqui’s  case  and  in Advaita  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  contention  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 fixed in the summons for final hearing as explained above in Point 1.

     In  the  present  case before us, the case  being  one tried  by  the  Small 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  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 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 dismissed but without costs.   .pa 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 without reference to this Court.