The adjourned date, i.e., the date which the court finally fixes for the first hearing of the case, must be deemed to be the date of first hearing for purposes of Rule 5 of Order XV of the Code.

Hari Swarup, J.

1. THIS Revision has been filed against the order of the Munsif Rae Bareli striking off the defence under Rule 5 of Order XV of the CPC and against the revisional order of the District Judge dismissing the revision. The facts relating to the case are as follows : A suit was instituted by the plaintiff for ejectment of the tenant and arrears of rent. The first date of appearance and hearing shown in the summons was 5-4-1977 ; the case was in the court of the Judge Small Causes. On 5-4-1977 the defendant applied for adjournment of the case and the case was adjourned to 10th May, 1977. On this date he filed a tender for the deposit of the amount of admitted rent in accordance with the requirement of Rule 3 of Order XV of the Code as inserted in U. P. The amount in accordance with this tender was deposited on May 12, 1977. The trial court ordered the striking off the defence on the ground that the deposit had not been made on the first date of hearing. The revision filed by the defendant was dismissed on the ground that there was no error of jurisdiction. The defendant has now filed the present revision.

2. THE learned District Judge was obviously in error in thinking that he was exercising such powers as are available under Section 115 of the Code while he was dealing with the revision filed under Section 25 of the Provincial Small Cause Courts Act. He considered the case on the basis of the jurisdictional error instead of considering it under the wider scope of Section 25 of the Provincial Small Cause Courts Act.

The order of the Munsif is based on three grounds : first, that the tender of money was made not on 5-4-1977 but on 10-5-1977; second, that the amount was deposited not on 10-5-77 but on 12-5-1977 ; and third, that the monthly rent was not deposited within a week. The third ground is obviously untenable because the question about deposit of rent for subsequent months could arise only after the deposit of the amount admitted to be due had been accepted. The second ground is also without merit ; it has been held by this Court more than once that a tender of rent amounts to payment and tender followed by deposit is sufficient compliance of Rule 5 of Order XV of the Code. The deposit will therefore be deemed to be made within time if the date of first hearing could be deemed to be May 10, 1977.

3. THE question, therefore, that arises in the case is whether May 10, 1977 could be deemed to be the date of the first hearing within the meaning of Rule 5 of Order XV of the Code. Sub-rule (1) of Rule 5 provides ;

"(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making, the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the court may subject to the provisions of sub-rule (2), strike off his defence. Explanation 1. -The expression 'first hearing' means the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned."

According to Rule 5 of Order XV of the Code the amount admitted to be due has to be deposited "at or before the first hearing of the suit." This must envisage a date which cannot be prior to the date of admission of the amount by the defendant. The question of striking off the defence can arise only after the defence has been filed and is known. The defence cannot be filed after the date of hearing of the suit. In a court of Small C