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Toheed Ahmad v. Vii A.D.J. &Others - WRIT - A No. 7624 of 1988 [2005] RD-AH 5824 (16 November 2005)


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(Court No.51)

Civil Misc. Writ Petition No.7624 of 1988

Toheed Ahmad  Vs.  VIIth Additional District Judge, Bulandshahr and others


Heard learned counsel for the tenant-petitioner.  No one has appeared on behalf of praposed legal representatives of landlord-respondent no.3.

This is tenant's writ petition arising out of SCC suit no.25 of 1982 filed by original landlord-respondent no.3 Navin Chandra since deceased and survived by legal representatives.  Suit was filed on the ground of default.  JSCC, Bulandshahar through judgment and decree dated 11.4.1985 decreed the suit for eviction and recovery of arrears of rent.  Tenant-petitioner filed SCC revision no.39 of 1985 against the said judgment and decree which was dismissed by VIIth A.D.J., Bulandshahar on 18.12.1987 hence this writ petition.

The only point to be decided in this writ petition is as to whether tenant-petitioner was entitled to the benefit of Section 20(4) of U.P. Act No.13 of 1972 or not.  The first date fixed in the suit was 24.11.1983 on which date petitioner appeared and prayed for supply of copy of the plaint and time for filing written statement.  The application was allowed and 2.12.1983 was the next date fixed.  On 2.12.1983 tenant-petitioner deposited the requisite amount.  Both the courts below held that 24.11.1983 was the date of first hearing hence deposit made by the tenant was beyond time.  In this regard both the courts below have committed an error of law.  It has been held in a Division bench authority of this Court reported in Shafiqur Rahman Vs. A.D.J. 1982 A.R.C. 729                                       that unless alongwith summons copy of plaint is served, service of summons cannot be held to be valid.  In any case until filing of written statement with the permission of the court no date can be said to be date of first hearing (vide K.K.Gupta Vs. A.D.J. 2004(2) A.R.C. 659).

Accordingly, writ petition is allowed.  Both the judgments, decree of the trial as well as order of the revisional court are set aside.  Suit of the landlord for eviction is dismissed.  The amount deposited by the tenant-petitioner is permitted to be withdrawn by the landlord.

I have held in Khursheeda Vs. A.D.J. 2004 (2) A.R.C. 64 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act writ court is empowered to enhance the rent to a reasonable extent.

Accordingly, it is directed that with effect from December, 2005 onward petitioner shall pay rent to the legal representatives of respondent no.3 at the rate of Rs.600/- per month.




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