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1985 DIGILAW 1 (CAL)

HIMANSHU KUMAR LAHIRI v. GAJENDRA KUMAR DE

1985-01-01

SANKAR BHATTACHARYYA

body1985
SANKAR BHATTACHARYYA, J. ( 1 ) THE short point involved in this appeal is whether in a suit for ejectment under the West Bengal Premises Tenancy Act ("the Act") the delay in making an application under Section 17 (2a) of the Act by the tenant may be condoned by the court under section 5 of the Limitation Act. ( 2 ) THE defendant was a monthly tenant under the plaintiff in respect of the suit premises at a rental of Rs. 23/- per month, payable according to the English Calendar. For default in payment of rent from January, 1972 to August, 1972 the tenancy was determined by the plaintiff by a combined notice under Section 106 of the Transfer of property Act and Section 13 (6) of the Act and the defendant was asked to quit and vacate the premises with the expiry of the last day of October, 1072. The notice not having been complied with by the defendant, the suit was instituted for his ejectment from the suit premises. In a previous suit for ejectment on the ground of default in payment of rent, the defendant was given the benefit of Sub-section (4) of section 17 of the Act and it was, therefore, contended by the plaintiff that the defendant was no more entitled to the benefit of the said sub-section. ( 3 ) THE defendant entered appearance on 18. 1. 73 by filing a written statement wherein he denied the alleged default and contended, inter alia, that the plaintiff had brought a frivolous suit as he refused to accede to the plaintiff's demand for enhancement of rent. ( 4 ) ON 27. 5. 74 the plaintiff filed an application under section 17 (30 of the Act for striking out the defense against delivery of possession. On 3. 6. 74 the defendant filed an application under section 17 (2a) of the Act. In the application it was stated by the defendant that the entire rent for the alleged period in default had been deposited by him with the Rent Controller on 3. 11. 72 that is, before the institution of the suit and subsequent rents also were being deposited month by month with the Rent Controller. In spite of the said deposits, however, if any amount was found due from him, he might be granted an extension of time for depositing the same. ( 5 ) ON 22. 11. 72 that is, before the institution of the suit and subsequent rents also were being deposited month by month with the Rent Controller. In spite of the said deposits, however, if any amount was found due from him, he might be granted an extension of time for depositing the same. ( 5 ) ON 22. 8. 75 the defendant filed another application under section 151, Civil Procedure Code, explaining the delay in presenting the application under section 17 (2a) of the Act and praying for hearing of the same on condo nation of the delay. ( 6 ) ON 21. 11. 75 both the application filed by the defendant were heard together by the learned Munsif who held that the application under section 17 (2a) was time barred and further that the delay in filing the application could be condoned only under section 5 of the Limitation Act and not under section 151, civil Procedure Code. As, however, no application was made under section 5 of the Limitation Act, the learned Munsif dismissed both the applications. Thereafter, on 14. 1. 76 the plaintiff's application under section 17 (3) of the Act was taken up for hearing. At the time of hearing the defendant produced the challan showing deposit of rent from January 1972 to September 1972 with the Rent Controller on 3. 11. 72. The learned Munsif held the deposit to be invalid as there was no previous tender of rent to the plaintiff before the deposit and the entire rent from January, 1972 to September, 1972 was deposited at the time on 3. 11. 72. Since no fresh deposit was made under section 17 (1) of the Act, the plaintiff's application under section 17 (3) was allowed and the defense against delivery of possession was struck out. Thereafter on 30. 7. 76 the suit was finally heard and decreed on the finding that the defendant was a defaulter in payment of rent. ( 7 ) ON appeal by the defendant the lower appellate court, without entering into the question whether section 5 of the Limitation Act or Section 151, Civil Procedure Code would apply to the application under section 17 (2a) of the Act, found that the delay was not satisfactorily explained and in that view of the matter, dismissed the appeal. ( 8 ) THE only point urged by Mr. ( 8 ) THE only point urged by Mr. Mukherjee, the learned Advocate for the appellant, is that for condo nation of delay in making an application under section 17 (A) of the Act, section 5 of the Limitation Act cannot be invoked and the only remedy of the tenant is by way of an application under section 151, Civil Procedure Code. Another grievance of Mr. Mukherjee is that the learned Munsif did not even consider the application under Section 151, civil procedure Code on merits and dismissed it simply on the ground that it cannot be entertained. ( 9 ) IN support of his contention Mr. Mukherjee has cited the decision of a learned Single Judge of this court in the case of Mozibul Haque vs. Sudarsan Pal, reported in 88 Calwn 538 where, following the Division Bench decision of this court in the case of Sm Sitala Debi vs. Man Bahadur, reported in 76 Calwn 435, the learned Single Judge held that under Section 151, Civil Procedure Code the court has power to condone the delay in deposit or payment of rent provided the tenant satisfies the court that there has been no negligence or inaction on his part in complying with the requirements of the provisions of the stature or of the court's order based thereon and the default or failure occurred only because of supervening circumstances which could not be tided over in spite of his best diligence and further as soon as the obstacle had been removed he had taken all steps as was required under the law and his conduct in the matter had been bonafide all through. ( 10 ) IN the case cited by Mr. Mukherjee the learned Judge did not specifically deal with the question whether section 5 of the Limitation Act can be invoked for condoning the delay in filing an application under Section 17 (2a) of the Act.Therefore, the decision can really be of no assistance to the appellant. ( 11 ) IN Rajendra Nath vs. Gangadas Reported in AIR 1979 SC 566 the Supreme Court, on an interpretation of section 39 of the Act, held that section 5 of the Limitation Act would apply to an application under section 17a of the Act. ( 11 ) IN Rajendra Nath vs. Gangadas Reported in AIR 1979 SC 566 the Supreme Court, on an interpretation of section 39 of the Act, held that section 5 of the Limitation Act would apply to an application under section 17a of the Act. ( 12 ) IN the case under reference, the tenant filed an application under section 17a for setting aside the order passed under section 17 (3) of the Act striking out the defense against delivery of possession. Along with the application which was filed long after the period prescribed by the section, an application under section 5 of the Limitation Act was also filed with the prayer that the delay caused in filing the application under section 17a may, for the reasons stated therein, be condoned. Both the applications, however, were dismissed by the trial court, which was confirmed by a learned Single Judge of this court in revision. The learned Judge, after referring to the provisions of section 39 of the act, took the view that since section 17a lays down a special period of limitation for filing a petition to set aside an order striking out the defense, that period could not be extended by invoking the provisions of the Limitation Act. In reversing the decision of this court, the Supreme Court observed as under:"the learned Single Judge of the Calcutta High Court has referred in his judgment of June 3, 1969 to the provisions of section 39 but he took the view that since section 17a lays down a special period of limitation for filing a petition to set aside an order striking out the defense, that period could not be extended by invoking the provisions of the Limitation Act. This view is unsupportable. The true meaning and effect of section 39 is that if any special period of limitation is prescribed by the act, that period will govern the proceeding under the Act in preference to the period, if any, prescribed by the Limitation Act. But, apart from such an overriding effect of the period of limitation prescribed by the Act, no only that other provisions of the Limitation Act do not stand excluded or superseded, but they are expressly made applicable by section 39 of the Act. But, apart from such an overriding effect of the period of limitation prescribed by the Act, no only that other provisions of the Limitation Act do not stand excluded or superseded, but they are expressly made applicable by section 39 of the Act. When the court condones the delay caused in filing a proceeding, it does not extend the period of limitation prescribed by law for filing it. It treats the proceeding as if it is filed within limitation, which it has the power to do if sufficient cause is shown for not filing the proceeding within the prescribed period. " ( 13 ) IN view of the observation of the Supreme Court extracted above, it is manifestly clear that the view taken by the learned Munsif that Section 5 of the Limitation Act was to be invoked for condoning the delay in filing the application under Section 17 (2a) of the Act was quite correct. Even then, the dismissal of the application under Section 151, Civil Procedure Code by the learned Munsif without entering into its merits is unsupportable. Instead of being hyper-technical in his approach, the learned Munsif could and should have treated the application as one under Section 5 of the Limitation Act and disposed it of on merits. At any rate, the appellant cannot have any grievance on that score because; the lower appellate court considered the application under Section 151, Civil Procedure Code on merits and reached the conclusion that the explanation for the delay as stated therein was wholly unsatisfactory and unacceptable. This being a finding of fact based on a consideration of the relevant materials on record, cannot be interferred with in second appeal. ( 14 ) IT may be mentioned that admittedly the defendant, in a previous suit against him for rejectment, was given the benefit of Sub-section (4) of section 17 of the Act. Therefore, in view of the Proviso to Sub-section (4), he is no more entitled to the benefit of the said sub-section for the second default. ( 15 ) AS the only point urged by Mr. Mukherjee fails, the appeal must be dismissed. In the result, the appeal is dismissed and the judgment and the decree of the lower appellate court are affirmed. In the circumstances of the case, there will be no order as to costs. Appeal dismissed.