Civil Appeal No 918 of 1973 From the Judgment and Order dated 10121986 of the Punjab and Haryana High Court in Civil Revision No 895 of 1972
SK Mehta MK Dua and Aman Vachher for the Appellant
SN Kacker and BP Maheshwari for the Re spondent The Judgment
of the Court was delivered by BC RAY J
This appeal by special leave is directed against the judgment and order passed on 27th February 1973 in Civil Revi sion No 895 of 1972 by the High Court of Punjab and Haryana whereby the revision case was allowed reversing the judgment and order of the appellate authority and allowing the application for ejectment
The tenant appellant was granted three months  time to vacate the shop and was also directed to deposit arrears of rent if any within one month from the date of the order
He was also directed to deposit advance rent for three months on the date of the order failing which he will be evicted on the expiry of one month
511 The appellant is a tenant in respect of a room forming part of the property unit No B VI 33old and B IX I48New Chaura Bazar Ludhiana which has been rented on a monthly rental of Rs 23 by the landlady Smt
Goran Devi on the basis of rent deed dated 7th July 1967 for a period of three months
After the expiry of the term of the tenancy he contin ued in possession of the suit premises as a statutory tenant under Smt
Guran Devi
Guran Devi however gifted away this property in favour of the Respondent on February 13 1968 and from that date the appellant became a tenant under the respondent
The ejectment was sought on the ground of default in payment of rent from 1321968 till the date of filing of the application for ejectment in July 1969 under Sec 13 of East Punjab Urban Rent Re striction Act 1949
The summons of this application was served on the tenant appellant and the returnable date was fixed for 2661969
On that date the appellant ap peared before the Rent Controller Ludhiana with his counsel and prayed for adjournment for filing written statement
The case was adjourned to 271969
On that date the writ ten statement was filed and the tenant ten dered a sum of Rs 336 on account of arrears of rent from 1321968 to 1261969 together with Rs 15 as interest and Rs 25 as costs as fixed by the Rent Controller
The landlord accepted the amount under protest
One of the issues framed in the said case was whether the tender was avalid tender within the meaning of proviso to Sec
132 of East Punjab Urban Rent Restriction Act 1949
The Rent Controller after hearing the parties found that the tenant appellant having failed to tender the arrears of rent and interest at 6 per annum on such arrears together with the costs of the application on 2661969 which according to him was the first hearing of the application for ejectment the tenant was not entitled to get the protection of Sec 132i proviso
The Rent Controller repelled the contention made on behalf of the tenant that the said date was not the date of first hearing and that the cost of the appli cation having not been assessed on 2661969 that day cannot be taken as the first day of heating of the application and the tenant having deposited all the arrears of rent together with interest and costs as assessed on the next date ie 271969 he could not be considered to be a defaulter
In that view of the matter the Rent Controller allowed the application for ejectment and directed the tenant to vacate the premises and to deliver possession to the landlord petitioner in respect of the room in question within one month of the date of the order
Against this judgment and order the tenant filed an appeal being MCA No 165131 of 1970 before the appellate authority Ludhiana under the East Punjab Urban Rent Restriction Act
The appellate authority reversed the order of the Rent Controller by holding that as the Rent Controller failed to discharge his duty in assessing the costs to be deposited by the tenant along with the arrears of rent and interest on 2661969 the tenant cannot be 512 penalised for the mistake of the Court and the deposit that has been made by the tenant on the next date ie 271969 when the cost of the application was assessed by the Rent Controller should be treated as deposit made in accordance with the provisions of Sec 13 of the said Act
It has been further held that for the mistake of the Court or its officers nobody could be made to suffer
The appellate authority further held that the words first day of hearing  presuppose the existence of an occasion enabling the parties to be heard and the court to hear them in respect of the cause
The tender was accordingly held to be valid tender within the meaning of the provi sions of the said Act
The appeal was allowed and the order of eviction made by the Rent Controller was set aside
Against this judgment and order a Revi sion Application being Civil Revision No 895 of 1972 was filed before the High Court of Punjab and Haryana
The said Revision Case was allowed by holding that the day of first heating was 2661969 when the tenant appeared before the Rent Controller with his counsel and sought time for filing written statement and the tender of the arrears of rent together with interest and costs of the application being not made on that date the subsequent tender of the same on 271969 was not a valid tender within the meaning of proviso i to sub Sec 2 of Section 13 of the said Act
An order was made directing the tenant appellant to vacate the premises within three months
The tenant was also directed to deposit the
rent for three months within one month from the date of this order in default he will suffer eviction after expiry of one month
It is against this judgment and order the instant appeal on special leave has been preferred before this Court
The only question that poses itself for consideration in this appeal is whether the date of appearance as mentioned in the summons ie 2661969 is the date of first hearing of the application for ejectment and non payment or non tendering of arrears of rent together with interest and costs of the application on that very date will make the tenant liable for eviction from the rented premises on the ground of default
In the instant case on the returnable day of the summons the tenant defendant appeared with his counsel ie on 2661969 and prayed for an adjournment for filing written statement
The case was accordingly a djourned to 271969
It is also pertinent to note that on the re turnable day ie 2661969 the Rent Controller did not make any order assessing the costs of the application which was required to be deposited along with arrears of rent and interest at 6 per annum on such arrears
It is on 271969 the Rent Controller assessed the cost of the application and the tenant appellant deposited the arrears of rent up to date together with interest at the rate of 6 on such ar rears and the costs assessed by the Rent Controller on that date
The said amount tendered in the Court was accepted by the landlord under protest
513 The day mentioned in the summons ie 2661969 in our considered opinion cannot be treated to be the day of first hearing of the ejectment application but it is the day for appearance of the defendent as on that day the Court does not take up the hearing or apply its mind to the hearing of the application
It is only after written statement is filed the issues are framed and hearing commences
We draw inspiration and support from a decision of this Court ren dered in Ved Prakash vs Vishwa Mohan  wherein this Court was concerned with the same expression viz first hearing  employed in Sec
204 of the UP Rent Act of 1972 prior to the amendment of UP Act XXVIII of 1976 which is in pari materia with the corresponding provi sion in the Punjab Rent Act
The analogous provisions in these two Rent Acts in so for as material are reproduced in juxtaposition hereunder
204 of UP Urban Buildings Sec 13 of the East Regulation of Letting Rent and Punjab Urban Rent Eviction Act1972 Restriction Act1949 In any suit for eviction on the Eviction of tanants 1 ground mentioned in clause a of xxx2xxxx If the Contr Sub Sec2 if at the first heari ollerafter giving the ng of the suit the tenant uncondi tenent a reasonable opp tionally pays or tenders to the ortunity of showing cau landlord the entire amount of rent se against the applicat and damages for use and occupation ion is satisfied of the building from him such i that the tenant has damages for use and occupation not paid or tendered the being calculated at the same rate rent due by him in resp as rent together with interest ect of the building or thereon at the rate of nine per rented land provided cent per annum and the landlord s that if the tenant on costs of the suit in respect there the first hearing of the of the court mayin lieu of pass application for ejectme ing a decree for eviction on that nt after due servicepay ground pass an order relieving the or tenders the arrears tenent against his liability for of rent and interest at eviction on that ground Emphasis six per cent per annum added
on such arrears together with the cost of applicat ion assesed by the Contro ller the tenent shall be deemed to have duly paid or tendered the rent with in the time aforesaid
ii X X X iii X X X iv X X X v X X X the controller may make an order directing the tenant to put the landlord in po ssession of the building or granted land  Emphaise added 514 This Court whilst interpreting the critical expression first hearing enunciated the law as under The question of law raised before us may perhaps be pronounced upon as it is of general importance
Section 204 of the Act which we have excepted above fixes the crunical date for deposit of rent as at the first hearing of the suit
 What is the first hearing of the suit
Certain decisions have been cited before us of the Allahabad High Court which indicate that the first hearing of the suit is when after framing of issues the suit is posted for trial that is production of evidence 
We see none here and therefore adopt as correct the decision of the High Court regarding the meaning of the expression at the first hearing of the suit
We may however add that the expression at the first hearing of the suit is also to be found in Order 10 Rule 1 Order 14 Rule 15 an Order 15 Rule 1 of the Code of Civil Procedure
These provisions indicate that the first hearing of the suit can never be earlier than the date fixed for the preliminary examination of the parties Order 10 Rule 1  and the settlement of issues Order 14 Rule 15
 The Punjab and Haryana High Court itself in Mangat Rai vs Ved Prakash  1969 Vol 1 Rent control Reporter p 96 has expressed the same view in paragraph 15 of the judgment 15
The principles that can be deduced from the plethora of case law on the point including the authorities referred to above are consistent with the literal meaning of word hearing  which in its Dictionary sense means the listening of evidence and pleading in Court of law the trial of a cause 
It seems to be abundantly clear that in order to constitute first hearing  within the meaning of Sec 132i proviso the following prerequisites must co exist i There should be a hearing  which presupposes the existence of an occasion enabling the parties to be heard and the court to hear them in respect of the cause
ii Such hearing should be the first in point of time after due service of the summonsnotice on the tenant
Both these essentials are positive and in the absence of either of them there can be no first hearing It appears that there is consensus in regard to the interpretation of the expression first day  in the context of the rent legislations of several other 515 states for instance the Gujarat High Court in Shah Ambalal Chhotalal and others
vs Shah Babal Das Dayabhai and Ors AIR 1964 Gujarat p 9 dealing with the identical ques tion as to the meaning of the words the first day of the hearing of the suit as provided in sub Sec
3b of Sec 12 of Bombay Rents Hotel and Lodging House Rates Control Act 1947 has observed after considering several decisions that the words the first day of hearing  as meaning not the day for the return of the summons or the returnable day but the day on which the Court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence taken
 Similar view was also taken by the High Court of Bombay earlier in the case of Khanderao Malkarjun Dhotre vs
Anandrao Laxmanrao Mashalkar
AIR 1959 Bombay p 47 It has been observed in this case as follows I am of opinion that the first day of hearing in S123b means not the day fixed for return of the sum mons or what is sometimes called the returnable day but the day on which the learned Judge applies his mind to the case which ordinarily he would do at the time when the issues are determined is the day mentioned and that is the day before which the rent should have been paid
 It was tried to be contended that these decisions being rendered in connection with the suit  cannot be taken into consideration in the case of a proceeding  before the Rent Controller
We do not find any substance in this contention which seeks to draw a distinction without a difference in substance
It is appropriate to point out in this connection that the object of the East Punjab Urban Rent Restriction Act as stated in the Preamble to the Act is to restrict the increase of rent of certain premises situated within the limits of urban areas and eviction of tenants therefrom
From the objects of this Act it is abundantly clear that this Act was enacted with the object of affording protection to the tenants against arbitrary increase of rent of certain premises within the limits of urban areas as well as from eviction of the tenants from the rented premises
In this context it is imperative that the word the first hearing of the application have to be interpretted in a manner which promote the object of this beneficial legislation
Viewed from this aspect we cannot but hold that the words first hearing of the application as used in provise i to sub section 2 of Section 13 of the said Act does not mean the day fixed for return of the summons or the returnable day but the day when the Court applies its mind to the case
In the premises aforesaid we allow the appeal and set aside the order of eviction passed by the High Court and confirm the judgment and order of the lower appellate court dismissing the application for eviction
There will however be no order as to costs in the peculiar circumstances of the case
SR Appeal allowed


Summary:
The appellant is a tenant in respect of a room forming part of the property Unit No B IX 148 New Chaura Bazar Ludhiana which has been rented on a monthly rental of Rs 23 by the landlady Smt
Guran Devi on the basis of rent deed dated 7th July 1967 for a period of three months
After the expiry of the term of the tenancy he continued in possession of the suit premises as a statutory tenant under Smt
Guran Devi
Guran Devi however gifted away this property in favour of the Respondent on February 13 1968 and
from that date the appellant became a tenant under the respondent
The ejectment was sought on the ground of default in payment of rent from 1321968 till the date of filing of the application for ejectment in July 1969 under Section 13 of East Punjab Urban Rent Restric tion Act 1949
The summons of this applica tion was served on the tenant appellant and the returnable date was fixed for 2661969
On that date the appellant appeared before the Rent Controller Ludhiana with his counsel and prayed for adjournment for filing written statement
The case was adjourned to 271969
On that date the written statement was filed and the tenant tendered a sum of Rs 336 on account of arrears of rent from 1321968 to 1261969 together with Rs 15 as interest and Rs 25 as costs as fixed by the Rent Control ler
The landlord accepted the amount under protest
One of the issues framed in the said case was whether the tender was a valid tender within the meaning of proviso to section 132 of East Punjab Urban Rent Restriction Act 1949
The Rent Controller allowed the eviction petition being of the view that since on the first day of appearance the tenant did not tender payment he was in default
On appeal the appellate authority reversed the finding holding that the next date fixed by the Rent Controller for filing written statement and on which date the payment was tendered and received by the landlord under protest was the first day of hearing contemplated by proviso to section 132Xi of the Rent Act
In Revi sion the High Court restored the order of the Rent Controller
Hence the appeal by special leave
Allowing the appeal the Court 510 HELD The day mentioned in the summons ie 2661969 in the instant case cannot be treated to be day of first hearing of the ejectment application but it is the day for appearance of the defendent as on that day the Court does not take up the hearing or apply its mind to the hearing of the application
It is only after written statement is filed the issues are framed and hearing commences
513A The object of the East Punjab Urban Rent Restriction Act as stated in the Preamble to the Act is to restrict the increase of rent of certain premises situated within the limits of urban areas and eviction of tenants therefrom
From the objects of this Act it is abundantly clear that this Act was enacted with the object of affording protection to the tenants against arbitrary increase of rent of certain premises within the limits of urban areas as well as from eviction of the tenants from the rented premises
In this context it is imper ative that the word the first hearing of the application have to be interpreted in a manner which promote the object of this bene ficial legislation
Viewed from this aspect it must be held that the words first hearing of the application as used in proviso i to sub section 2 of section 13 of the said Act does not mean the day fixed for return of the summons or the returnable day but the day when the Court applies its mind to the case
515E G Ved Prakash vs Vishwa Mohan  followed
Mangat Rai vs Ved Prakash 1969 Vol 1 Rent Control Reporter p 96 Shah Ambalal Chhotalal  Ors vs Shah Babal Das Dayabhai  Ors AIR 1964 Gujarat p 9 and Khanderao Malkarjun Dhotre vs Anandrao Laxmanrao Mashal kar AIR 1959 Bombay p 471 approved