Ramendra Krishna Bose v. Manjushree Bhattacharya — 1978 DIGILAW 86 (CAL)

JUDGMENT Murari Mohan Dutt, J. 1. This Rule is at the instance of the defendant and it is directed against Order No.57 dated 25.5.1977, of the learned Subordinate Judge, 4th Court, Alipore. By that order, the learned Subordinate Judge has dismissed the application of the petitioner under section 5 of the Limitation Act read with section 151 of the Code of Civil Procedure praying for condonation of the delay in making the deposit of rent for the month of March 1975 a few days beyond the time prescribed by the provisions of section 17(1) of the West Bengal Premises Tenancy Act, 1956. 2. It appears that the petitioner has been regularly depositing the rent with the Rent Controller, Calcutta. During the suit for ejectment, the petitioner deposited the rent for the month of March, 1975 on 21.4.1975, that is, five days beyond the time prescribed therefore. The opposite party made an application under section 17(3) of the said Act praying for striking out the defence of the petitioner against delivery of possession as he failed to deposit rent for the month of March, 1975 within the prescribed period. The petitioner also made an application under section 5 of the Limitation Act read with section 151 of the Code of Civil Procedure praying for condonation of the delay in making the deposit of rent for the said month. In the said application, it was alleged that the petitioner fell ill at Madras at the residence of his son. He could not come back to Calcutta before 26.4.1975. His daughter, Sm. Jaya Biswas was contacted at Calcutta over the telephone of 9.4.1975 and on instruction she deposited the rent for the month of March 1975 on 21.4.1975. It is not disputed that the petitioner is a heart patient. The dispute is whether the petitioner had fallen ill while he had been to his son's house at Madras. The application under section 5 of the Limitation Act read with section 151 of the Code was sworn by his daughter, Sm. Jaya Biswas. 3. Learned Subordinate Judge could not place any reliance on the statements made by the petitioner's daughter in the said application on the ground that such statements were hearsay. The application under section 5 of the Limitation Act read with section 151 of the Code was sworn by his daughter, Sm. Jaya Biswas. 3. Learned Subordinate Judge could not place any reliance on the statements made by the petitioner's daughter in the said application on the ground that such statements were hearsay. It was held by the learned Judge that the daughter had no direct knowledge about the alleged illness of her father at Madras and the competent witness on this point would have been his son of the attending physician, but none of them had been examined. Further, the learned Judge observed that not a scrap of paper was filed to prove the alleged illness of the petitioner at Madras. In that view of the matter, the learned Judge dismissed the said application. 4. It is not disputed that the court below had the inherent jurisdiction to condone the delay, if it was found that due to the illness of the petitioner, the rent could not be deposited within time. Indeed such power has been recognized by a Division Bench of this Court in the case of Sitala Debi vs. Man Bahadur, 76 CWN 435, and also in the case of Sk. Shahajan vs. Sm. Shama Debi, 1977 (2) CLJ 545 , in which Borooah, J. has held that under section 151 of the Code of Civil Procedure a court has been empowered to make such order as may be necessary for the ends of justice and where the tenant has been regularly depositing the rent and installments but fails on a solitary occasion to make such deposit in time due to circumstances beyond his control or due to poverty, the High Court cannot shut its eyes and fall back upon technicalities and deny relief in such a case. Further, the learned Judge observes that the powers of this court arc wide enough to travel beyond the provisions of the statute, which are technical in nature and give relief in appropriate cases. 5. The learned Subordinate Judge is also of the view that the court has such inherent power to condone the delay in making deposit of rent beyond time under extraordinary circumstances. The only ground upon which the learned Subordinate Judge has rejected the application of the petitioner is that the petitioner failed to prove his illness while he was at Madras. 6. The only ground upon which the learned Subordinate Judge has rejected the application of the petitioner is that the petitioner failed to prove his illness while he was at Madras. 6. In our view, for the ends of justice, the petitioner should be given a further opportunity to prove his illness in accordance with law. 7. In these circumstances, we set aside the order of the learned Subordinate Judge and send the matter back to him with a direction that the petitioner should be given a further opportunity to prow his illness at the relevant time while he was at Madras. If the learned Judge comes to the finding that the petitioner was ill while he was at Madras which prevented him from depositing the rent for the month of March, 1975 within the prescribed period, he will condone the delay in making the deposit. 8. The learned Judge is directed to dispose of the matter as quickly as possible. 9. The Rule is made absolute to the extent indicated above. There will be no order as to costs. Let the records be sent down as early as possible.