IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 3680 of 2001 (M/S) (Old No. 20864 of 1998) Abdul Shakoor S/o Sri Ahamd Hussain R/o Mohalla Khatari Near the Chakki of Maulana Qayyum Ram Nagar, District Nainital. ………Petitioner Versus 1. The Special Judge/Additional District Judge Nainital. 2. The Judge Small Causes Court/Civil Judge Junior Division, Kashipur District Nainital. 3. Sri Abdul Zahid S/o Sri Abdul Wahid R/o Mohalla Khatari Tehsil Ram Nagar District Nainital. ….Respondents. Shri K.N. Joshi, Advocate for the petitioner. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 read with 227 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the order dated 30.09.1995, passed by the trial court (Judge Small Cause Court/Civil Judge, Jr. Div., Kashipur), and order dated 30.03.1998, passed by the revisional court (Additional District Judge/Civil Judge, Nainital). [Earlier Tehsil Kashipur was part of District Nainital]. The trial court had decreed the suit for recovery of 2 arrears of rent and ejectment of the petitioner (tenant), and the revisional court has affirmed it. 2. Heard learned counsel for the petitioner and perused the affidavit and counter affidavit, filed on behalf of the parties. 3. Brief facts of the case, as narrated in the writ petition are that the plaintiff/present respondent No. 3 (Abdul Zahid), filed S.C.C. suit No. 32 of 1986, on 10.12.1986, against the petitioner for his ejectment from the house situated in Mohalla Khatari, Ramnagar (District Nainital), on the ground of default in payment of rent w.e.f. 01.02.1985 till 30.11.1986. The respondent No. 3 (plaintiff) purchased the property from Hamidullah, the erstwhile owner, on 01.02.1985. A written statement was filed by the petitioner in the suit, denying the ownership of respondent No. 3, and pleaded that it was the petitioner, who had entered into agreement of sale with Hamidullah (original landlord) on 23.01.1985 for a sum of Rs. 12,300/- . Apart from this, the petitioner pleaded before the trial court that he was ready and had deposited entire amount of arrears of rent with interest and costs, and no decree of ejectment can be passed against him, as he is protected under sub-section (4) of Section 20 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short U.P. Act 13 of 1972). However, the trial court after recording the evidence and hearing the parties, found that respondent No. 3 was landlord and the petitioner (tenant) committed default in 3 payment of rent, as alleged by the landlord and decreed the suit for ejectment of the petitioner, vide its judgment and decree dated 30.09.1995. The trial court further found that the petitioner is not entitled for protection under Section 20 (4) of U.P. Act 13 of 1972. Aggrieved by said judgment and decree, passed by the trial court, the petitioner filed S.C.C. revision No. 88 of 1995, before the revisional court, challenging the order passed by the trial court. Respondent No. 1 after hearing the parties, dismissed the revision, vide impugned judgment and order dated 30.03.1998. Hence this writ petition was filed before Allahabad High Court from where it is received by transfer under Section 35 of U.P. Reorganisation Act, 2000 (Central Act 29 of 2000), for its disposal. 4. In the counter affidavit, filed on behalf of respondent No. 3, (landlord) it has been pleaded that he purchased the building in question, vide sale deed dated 01.02.1985 from Hamidullah (the previous owner of the house). It is further stated in the counter affidavit that the petitioner failed to make payment of rent either to the previous owner or to respondent No. 3, hence the notice was served on him, and suit for ejectment was instituted under Provincial Small Cause Courts Act, 1887 (as amended by State of U.P). It is also pleaded by respondent No. 3 in the counter affidavit that no title stood transferred to the petitioner under unregistered agreement for sale with the previous owner. It is 4 further stated in the counter affidavit that the first date of hearing was 21.09.1987 in the suit and the protection under Section 20 (4) could have been available to the petitioner only after he had deposited the entire arrears of rent with interest and costs by said date. It is denied that the petitioner deposited Rs. 1,800/- on 21.09.1987, as stated in the writ petition. In fact said amount was deposited much after the first date of hearing and that too was short. 5. Learned counsel for the petitioner submitted that since on the first date of hearing i.e. 21.01.1987, no hearing took place, as such, it cannot be said to be a first date of hearing. Attention of this Court is drawn to the case of Jyoti Prasad Misra Vs. Ist Additional District Judge, Mainpuri and others 2005 (3) ARC 690, in which it has been held that where the case proceeded exparte and the exparte decree is set aside, the first date of hearing fixed thereafter is actual date by which the defendant (tenant) is entitled to make deposits, as required under Section 20 (4) of U.P. Act 13 of 1972. I have gone through said case law. The facts of this case are different to the one referred by learned counsel for the petitioner. In the present case, the title of the landlord itself has been denied. Not only this, there was no exparte decree in the present case. It has been observed in aforesaid case that the first date of hearing is 5 the one on which the court proposes to apply its mind. It is immaterial as to whether the actual mind is applied on said date or not. It is pertinent to mention here that the proceedings in question before this Court, are the proceedings of Judge Small Cause Court, and not of the regular court. As such, the first date of hearing fixed in the S.C.C. suit is the date on which the trial court has to apply its mind. The trial court as well as the revisional court has discussed at length that the deposit was not made by the petitioner by 21.01.1987, rather the same was paid on 27.01.1987. Apart from this, both the courts below have found that the petitioner had denied the title of the landlord, and as such even otherwise he was liable to be evicted. 6. On behalf of the petitioner, it is also argued that since the petitioner had already entered into agreement with the previous owner/landlord, whereby he (previous landlord) had agreed to sell the accommodation to the petitioner and received a part of consideration, as such, the petitioner cannot be said to be tenant thereafter. I have examined the papers on record, and found that neither the trial court nor the revisional court has committed any error of law in rejecting the said oral evidence of the petitioner, as neither any registered sale deed was executed by the previous owner/landlord in 6 favour of the petitioner nor the agreement, which was said to have been executed in favour of the petitioner was a registered one. As such, said document could not have been read in evidence and rightly done so. 7. Having considered submissions of learned counsel for the parties, and after going through the papers on record, this Court does not find any error of law, committed by the trial court or by the revisional court. Therefore the petition is liable to be dismissed. The same is dismissed. (Prafulla C. Pant, J.) Dt:7.09.2009 Sweta