Shafiqur Rahman Khan vs The IInd Additional District Judge and Others

K.C. Agrawal, J.—Having felt that the question involved in the present case was of importance, Hon. S. D. Agarwala, J., referred this writ petition for decision by a larger Bench.

The facts of this case, briefly stated, are these. Smt. Siddiqa Begum, Respondent 3, filed a suit in the court of Judge Small Causes, Rampur, for eviction, recovery of arrears of rent and damages against the Petitioner, on the ground of default in payment of arrears of rent. The summons of the suit was served upon the Petitioner on 6th July, 1978. The summons was not accompanied by a copy of the plaint. On February 7, 1978, the Petitioner appeared before the Judge Small Causes and pointed out to him that the summons served upon him did not accompany a copy of the plaint. Thereupon, the Court granted time upto 13th February, 1978, to the Petitioner, tenant to pay the arrears of rent, and fixed 14th February, 1978, for filing of the written statement. The Petitioner tenant deposited the arrears of rent and costs on 14th February, 1978.

Having deposited the entire amount of rent and damages for use and occupation of the building due from the Petitioner together with interest thereon and costs of the suit in respect thereof, the Petitioner claimed the benefit of Sub-section (4) of Section 20 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as Act XIII of 1972). The Judge Small Causes held that as the amount required the aforesaid Sub-section (4) of Section 20 was not deposited on 7th February, 1978, which was the date for "first hearing" within the meaning of Explanation (a) to Sub-section (4) of Section 20, the Petitioner was not entitled to the immunity form ejectment on the ground of default in payment of arrears of rent. In the revision preferred against the said judgment of the Judge Small Causes u/s 25 of the Provincial Small Cause Courts Act, the judgment and decree of ejectment granted by the Judge Small Causes on the ground of default was maintained. Having felt aggrieved, the Petitioner has come to this Court.

The question that arises for our consideration in the present case is about the interpretation of Explanation (a) to Sub-section (4) of Section 20 of U.P. Act XIII of 1972, which reads as under:

Explanation -For the purpose 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 submission of the learned Counsel for the Petitioner was that as the summons served on the Petitioner for appearance on the 7th of February, 1978, was not accompanied by a copy of the plaint, the Explanation did not apply, hence failure to deposit the amounts mentioned in Sub-section (4) of Section 20 by the Petitioner on 7th February, 1978, could not be a ground to deny the Petitioner the benefit contemplated by the said provision.

The expression "first hearing" has been defined by adding the aforesaid Explanation by U.P. Act No. 28 of 1976. Before the aforesaid Amending Act, this expression had not been defined and the Courts had interpreted the same in a number of decisions. As expression "first hearing" has now been defined, Sub-section (4) of Section 20 has to be read in the light of the said meaning or definition given in the said Explanation. According to Explanation (a), the expression ''first hearing'' would mean the first date mentioned in the summons served on the Defendant. Service of summons is dealt with in Order V of the Code of Civil Procedure. Order V Rule 2 of the Code of Civil Procedure, with which we are concerned in the present case, reads as under:

Every summons shall be accompanied by a copy of the plaint....

This provision makes it incumbent and mandatory for every summons to accompany by a copy of the plaint. When a Statute uses the word "shall" prima facie it is mandatory. The word "shall" raises a presumption that the particular provision is imperative. In ordinary parlance, the term "shall" is considered as a word of command and one which always or which must be given a compulsory meaning. It has a peremptory meaning and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which must be discharged. Applying the aforesaid rule of construction, interpreting Order V Rule 2 of the Code of Civil Procedure, it appears to us that the word "shall" has to be construed imperatively and failure to accompany a copy of the plaint would not amount to service of summouns as required by Order V Rule 2 Code of Civil Procedure.

In Suresh Chandra Sarkar Vs. Gosaidas Pal, and Dr. Madhusudan Poddar Vs. Arabinda Poddar and Another, , the Calcutta High Court held that a copy of the plaint was essential to be sent along with the summons. According to the view taken in the aforesaid cases, Order V Rule 2 requiring annexation of a copy of the plaint along with the plaint is mandatory.

Sub-section (4) of Section 20 of U.P. Act XIII of 1972 confers a right on a tenant to save his tenancy by depositing the amounts mentioned therein. A tenant can know about the amounts only when he has been given a copy of the plaint. Not only that Sub-section (4) of Section 20 requires the deposit of the arrears of rent, but also damages, interest and costs of the suit. In the absence of service of copy of the plaint, the Defendant would not be able to know of the aforesaid facts and would not be able to avail the benefit conferred by Sub-section (4) of Section 20. According to Section 20(4), the Defendant would be required to deposit the amounts mentioned therein on the first date of hearing. It is, therefore, necessary that the summons must accompany a copy of the plaint so that the Defendant could make the necessary deposits. Since the legislature is aware that every summons has to accompany a copy of the plaint, no specific provision to that effect was required to be made. There is a presumption that legislature knows law and this being the fact a separate provision of service of copy of the plaint on the Defendant was not made. It was presumed that in every case where the summons is served upon the Defendant, the same is bound to accompany by a copy of the plaint.

For interpreting the requirement of serving a copy of the plaint, we may note that our law of procedure, as said by Bose, J. in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, , are grounded on the principle of natural justice which required that men should not be condemned unheard, and that they should not be precluded from participating in the proceedings. If this principle is kept into account while interpreting Order V Rule 2 Code of Civil Procedure, it would be found that the principle of fairness requires a copy of the plaint to be served on the Defendant alongwith the summons.

Next comes the requirement of construing the meaning of the expression "served" used in Explanation (a) to Sub-section (4) of Section 20 of U.P. Act XIII of 1972. According to this Explanation, the expression ''first hearing'' would mean the first date for any step or proceeding mentioned in the summons served on the Defendant. Although the expression used is summons, but that does not mean only intimation of the date on which appearance has to be put by the Defendant. Service of summons talked of by the Explanation implies the service of summons in accordance with Order V Rule 2 CPC which in its turn lays down a mandate of serving a copy of the plaint along with the summons. It is only when a summons has been served along with a copy of the plaint, that the Defendant becomes liable to deposit the amounts stated in Section 20(4) on the first hearing. It is not possible to say that the legislature requires the Defendant to deposit the amounts on the first hearing stated in the summons irrespective of the fact that a copy of the plaint has not been served on him. We have already emphasised above that in the absence of copy of the plaint, the Defendant would not be in a position to know about the amounts required to be deposited. Service of summons simplicitor without a copy of the plaint would not be due service contemplated by law and failure to deposit the arrears of rent, damages, costs and interest cannot deny the Defendant of the benefit given by Section 20(4) of U.P. Act XIII of 1972.

In M/s. General Auto Agencies, Jaipur v. Hazari Singh AIR 1977 Raj 180, the Rajasthan High Court dealt with the importance of attachment of a copy of the plaint, along with the summons and stressed that without the plaint the Defendant would not be in a position to know the case filed against him and to answer the same.

In Hari Narain v. Lallu Narain AIR 1974 RLW. 618 Singhal, J., took the same view and held that as summons had necessarily to be accompanied by a copy of the plaint, the date mentioned in the summons served upon the Defendant without a copy of the plaint could not be the date fixed for appearance of the Defendant and could not, therefor, be taken as the first date of hearing.

In M.G. Dua Vs. Balli Mal Nawal Kishore, and Jagat Ram Hamir Chand Vs. Shanti Sarup, , the Punjab High Court took the same view. These two decisions had been followed by Singhal, J. in Hari Narain''s case (supra). We arc in respectful agreement with the view taken in this case. In Shambhu Nath Mehrotra v. Nawal Kishore Agrawal 1981 AWC 74, A. N. Varma, J. took the same view.

As observed above, Section 20(4) is a beneficial legislation which has been enacted for the benefit of tenants. For interpreting such a beneficial legislation, the rule of construction, as laid down by the Supreme Court in Lalappa Lingappa and Others Vs. Laxmi Vishnu Textile Mills Ltd., , is that that construction should be preferred which fulfils the policy of the Act, and is more beneficial to the persons in whose interest the Act has been passed.

For explaining the meaning of the expression ''first hearing'' used in Section 20(4) and in the aforesaid Explanation, counsel for the parties relied on a number of decisions, some of which are found reported in Basu Dev Sahai v. Brij Mohan Lal 1979 AWC 153, Ajit Singh v. District Judge 1980 U.P. (2) R.C.C. 432 , Rahat Ali Vs. Daya Shankar and Another, and Krishan Lal v. L. Narendra Kumar 1978 AWC 619. In the last case, K.N. Singh, J. interpreted Explanation (a) to Sub-section (4) of Section 20 and held that the crucial test to determine the first hearing is to ascertain the date when steps in the proceedings were taken and the Court applied its mind for the first time to the question raised in the suit Adjournment of the date of hearing without transaction of any business would not mean the first hearing.

As in our opinion these decisions are not helpful for deciding the controversy involved in the present case, it is not necessary for us to deal with them. As to what is the meaning of the expression ''first hearing'' is not material for our purpose when we have held above that service of summons without being accompanied by a copy of the plaint is no service and the date mentioned in the summons for appearance cannot be considered as the first date of hearing. For service of summons to be effective and legal, it is necessary that summons is accompanied by a copy of the plaint. If service of summons on a Defendant-tenant without a copy of the plaint is considered to be valid, Section 20(4) may be rendered nugatory.

In the instant case, we have noted above that the summons which had been served upon the Petitioner tenant was not accompanied by a copy of the plaint, as a result whereof the summons could not be said to have been duly served on him. Hence, 7th February, 1978, could not be considered to be the first date of hearing as the summons had not been served in accordance with the requirements of the law. The failure of the Defendant-Petitioner to deposit the rent on 7th of February, 1978, could not be a ground to deny him the benefit of Sub-section (4) of Section 20. On 7th February, 1978, the Defendant-Petitioner appeared before the Court which had given time till 13th February, 1978, for depositing the amounts and had fixed 14th February, 1978, for filing of written statement. In the context of the facts of the present case, 14th February, 1978, could be considered as the first date of hearing. On that date, admittedly, the Defendant-Petitioner deposited the entire amounts. The Petitioner, therefore, became entitled to get the benefit of Sub-section (4) of Section 20 of U.P. Act XIII of 1972.

In the result, the writ petition succeeds and is allowed. The order and judgment of the courts below decreeing the suit for ejectment of the Petitioner are set aside and the suit for ejectment of the Petitioner is dismissed. In the circumstances, we direct the parties to bear their own costs.