The date of the first hearing in a Small Causes Court is the very first date fixed for disposal of the case, and a defendant is not entitled to an extension of time to make the deposit under Order 15, Rule 5, CPC, if he fails to make the deposit on the date of the first hearing or request for time to make the deposit on that date.

M.N. Shukla, J.

This is a petition under Article 227 of the Constitution in which the Petitioner tenant has prayed for quashing of two orders dated 30.10.1973 (Annexure 4) and 6.2.1974 (Annexure 5) passed by the Civil Judge, Rae Bareli and the Distt. Judge, Rac Bareli respectively under Order 15, Rule 5, Code of Civil Procedure.

2. The material facts of the case are that Respondent No. 7 Mohammad Shafi, landlord, filed a suit against the Petitioner on 11.9.1969 in the court of Munsif, Rae Bareli for ejectment from the shop in suit and for recovery of Rs. 210/- as arrears of rent and Rs. 175/-as compensation for use and occupation. A written statement was filed by the Defendant on 30.4.1970. On 17.3.1972 the learned Munsif fixed 17.11.1973 for framing of issues. In the meantime, however, on 3.10.1972 the case was transferred to the court of the First Additional Munsif, Rae Bareli vide District Judge's order dated 26.9.1972 and on 27.11.1972 the transferee court fixed 14.12.1972 for issues. On the date fixed the case could not betaken up and 4.1.1973 was fixed as the next date for issues. On that date i.e. 4.1.1973 it, was discovered that the case was triable by the Judge, Small Causes Court in pursuance of Section 9 of the Civil Laws Amendment Act (U.P. Act 37 of 1972). Accordingly on 20.1.1973 the suit was transferred to the court of the Judge Small Causes i.e. Munsif, Rae Bareli and on 15.3.1973 that court fixed 18.4.1973 for final hearing. On the date fixed an application for attachment was made by the Plaintiff which was ordered to be put up on 19.5.1973 for disposal. On 17.5.1973, however, the Respondent No. 7 made an application No. 24/C under Order 15 Rule 5, CPC praying that the Petitioner's defence be struck off as he had not deposited the arrears of rent and damages etc. on the first hearing as required under the law. On 20.10.1973 the case was received again by transfer in the court of the Civil Judge, Rae Bareli for disposal and arguments were heard on the application No. 24/C. The application was allowed by the learned Judge vide his order dated 30.10.1973 on the ground that in his written statement the Petitioner had not disputed the amount of Rs. 210/- which were claimed by the Respondent No. 7 as arrears of rent and Rs. 175/- as arrears of mesne profit for the use and occupation and the Petitioner had neither deposited such amount nor had he requested for time to deposit the amount. In the circumstance the Petitioners' defence was struck off. The order was upheld by the learned District Judge by his order dated 6.2.1974 and the revision filed by the Petitioner before him was dismissed. It is these orders whose validity has been challenged in this Misc. Application under Article 227.

3. Sri H.D. Srivastava, learned Counsel for the Petitioner strenuously urged before me that the “first hearing” in the suit had not yet really taken place, that the court was in law bound to permit the Petitioner to make the deposit as contemplated by Order 15, Rule 5, CPC and in the circumstances the order striking off the defence of the Petitioner was wholly illegal. On behalf of the Respondent No. 5 it was submitted that the first hearing of the case had taken place long ago, that the Petitioner had repeatedly failed to avail of the time granted for making the deposit before the court either on the first hearing or even thereafter and on the date when the defence was struck off all the conditions precedent to the passing of an order under Order 15, Rule 5 were fully satisfied and the order did not suffer from any error of law.

4. In order to appreciate the above contention it may be pointed out that the progress of the suit spanned really two periods, the one in which it remained pending in a regular court and the other during which its cognizance was taken by the Small Causes Court. A narrative of the facts already given would indicate that till 4.1.1973 the suit remained pending in the regular court of the Munsif, Rae Bare