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2000 DIGILAW 333 (CAL)

Rita Dutta v. Subrata Chatterjee

2000-07-11

Bhaskar Bhattacharya

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Judgment B. Bhattacharya, J. This revisional application under section 115 of the Code of Civil Procedure is at the instance of tenants defendants in a suit for eviction and is directed against Order No. 43 dated April 24, 1995, passed by the Munsif, 1st Court, Barasat in Title Suit No. 226 of 1990 thereby rejecting an application under section 5 of the Limitation Act for condonation of about three years delay in preferring an application under sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act. 2. The Opp. party filed the aforesaid suit in the year 1990 for eviction of the present petitioners on the ground of default, sub-letting, addition and alteration and on the ground of causing damage to the suit property. 3. After entering appearance in the suit, the present petitioners filed written statement but did not file any application under sections 17(1), 17(2) or 17(2A) of the West Bengal Premises Tenancy Act within the time fixed under law. The Opp. party in the meantime filed an application under section 17(3) of the Act for striking out defence against delivery of possession on the ground that the petitioners have not complied with the provisions contained in sections 17(1), 17(2) or 17(2A) of the aforesaid Act. The present petitioners filed written objection to the said application under section 17(3) of the Act thereby specifically contending that West Bengal Premises Tenancy Act had no application to the area where the suit property is situated and as such, the application under section 17(3) of the Act was not maintainable. 4. While the said application under section 17(3) of the Act was being heard in part, the present petitioners came up with an application under sections 17(2) and 17(2A) of the Act along with an application under section 5 of the Limitation Act for condonation of delay in preferring such application. The ground taken in the application under section 5 of the Limitation Act was that after receiving summons of the suit when the petitioners contacted their learned Advocate he asked him whether the property is situated within Municipal area or within a Panchayat area. The ground taken in the application under section 5 of the Limitation Act was that after receiving summons of the suit when the petitioners contacted their learned Advocate he asked him whether the property is situated within Municipal area or within a Panchayat area. The petitioners having answered that the property was beyond Municipal area but within Panchayat area, the said learned advocate asked him not to deposit any current rent as per last part of section 17(1) of the Act and assured the petitioners that the suit filed by the Opp. party would be dismissed. 5. Subsequently, when the hearing of the application under section 17(3) of the Act was going on, he overheard the discussion between the opp. party and his learned Advocate when the learned Advocate assured the Opp. party that the suit being within the area over which the Premises Tenancy Act applies, the defence of the petitioners would be strucced out and they would be evicted. In view of overhearing of such conversation, the petitioners because suspicious and engaged another lawyer for verification of the aforesaid statement. The said newly appointed lawyer after going through the papers opined that although the suit property was beyond Municipal area but as 'Nawapara' Mouza over which the suit property stands is a "notified area" within the meaning of West Bengal Premises Tenancy Act, the Act would be applicable notwithstanding the fact that the property is in Panchayat area. After getting such opinion of the newly appointed learned Advocate, the petitioners filed the application under sections 17(2) and 17(2A) of the Act along with prayer for condonation of delay. 5. The aforesaid application was opposed by the Opp. party by filing written objection thereby opposing prayer of the petitioners and contending that the petitioners had all along knowledge of the fact that Premises Tenancy Act applies to the area where the suit property is situated. 6. At the time of hearing of the application under section 5 of the Limitation Act, the petitioner No.2 gave evidence in support of the application while the Opp. party alone deposed in opposing such prayer. Ultimately by the order impugned herein, the learned Trial Judge has dismissed the application under section 5 of the Limitation Act. Being dissatisfied, the defendants have come up in revision. 7. Mr. party alone deposed in opposing such prayer. Ultimately by the order impugned herein, the learned Trial Judge has dismissed the application under section 5 of the Limitation Act. Being dissatisfied, the defendants have come up in revision. 7. Mr. Majumder learned Advocate appearing on behalf of the petitioners has drawn attention of this Court to the plaint where there is no reference to the fact that the suit, property being situated in a notified area, the Act has been made applicable; on the other hand, Mr. Majumder points out that in the aforesaid plaint there is no mention of the West Bengal Premises Tenancy Act at any place Mr. Majumder, however, conceeds that in the notice to quit that was served upon his clients prior to the institution of the suit, the same was described as one under section 13(6) of the West Bengal Premises Tenancy Act. He, however, submits that in such a notice the suit property was nowhere mentioned as one within the notified area. 8. Mr. Majumder further submits that in the written agreement between the parties by virtue of which the tenancy was created although there is reference of West Bengal Premises Tenancy Act but there is no indication why such Act has been made applicable. Mr. Majumder submits that after going through the papers, the learned Advocate for the petitioners in the Trial Court merely asked his clients whether the property was within the Panchayat area or within a Municipal area and his client having specifically stated that the same is within the Panchayat area, no further question was put to him whether the same is within notified area. Mr. Majumder thus submits that there was a bona fide mistake on the part of the learned Counsel for the petitioners in not asking further question whether the property was within notified area or not. 9. Mr. Talukdar learned Advocate appearing on behalf of the Opp. party has on the other hand, supported the order passed by the learned Trial Judge and has contended that the sole object of the petitioners is to delay the disposal of the proceeding and to harass the Opp. party unnecessarily. Mr. 9. Mr. Talukdar learned Advocate appearing on behalf of the Opp. party has on the other hand, supported the order passed by the learned Trial Judge and has contended that the sole object of the petitioners is to delay the disposal of the proceeding and to harass the Opp. party unnecessarily. Mr. Talukdar submits that since the agreement was entered into between the parties wherein there is specific statement that the tenancy would be governed by West Bengal Premises Tenancy Act, there is no reason why the petitioners would be misled by the advice of the learned Advocate. Mr. Talukdar further submits that on the fact of the present case, the learned Trial Judge having disbelieved the case of the petitioners, this Court sitting in revision should not interfere with the order impugned. 10. According to the West Bengal Premises Tenancy Act, such Act applies to any premises if the same is within Municipal area; otherwise the tenancy is governed by the Transfer of Property Act. However, there is an exception to the aforesaid proposition. Even if a property is within Panchayat area, the Act may have application if the said area is a "notified area" within the meaning of the said Act. The number of notified area mentioned in the said Act is few and far between. Therefore, if a learned advocate bona fide asks his client whether the property is situated within Municipal area or within Panchayat area without further asking him the question whether it is within notified area, such conduct cannot be branded as a gross mala fide one. Moreover, an ordinary litigant is not supposed to know or supposed to answer whether the disputed property is within the notified area mentioned in a particular Act. 11. Under the aforesaid circumstances, in my view, the learned Trial Judge ought not to have disbelieved the case of the petitioners in this type of a disputed case. A tenant will never take the risk of being evicted by not filing any applications under sections 17(1), 17(2) and 17(2A) of the Act when by filing those applications he could get protection even if he is ultimately found to be defaulter. A tenant will never take the risk of being evicted by not filing any applications under sections 17(1), 17(2) and 17(2A) of the Act when by filing those applications he could get protection even if he is ultimately found to be defaulter. In the instant case the rate of rent was merely Rs.125/- a month and the written agreement shows that the petitioners advanced a sum of Rs.10,000/- for the purpose of construction of the house where they have been let in. The fact that application under section 17(2) of the Act was filed during the course of application under section 17(3) of the Act itself indicates that the petitioners were confident of their success as per advice of the learned Advocate who was originally engaged. 12. I have already indicated that there is no whisper of the 'notified area' either in the ejectment notice or in the written agreement or in the plaint and if there was any such indication, it could be reasonably argued that knowing fully well that the property is situated within notified area, the petitioners have deliberately failed to file application under sections 17(2) or 17(2A) of the Act and the so called advice given by the learned Advocate was not a bona fide one; but in the absence of such clause in either of the aforesaid documents, the case made out by the petitioners cannot be disbelieved. It is now settled position of law that an application for condonation of delay should be considered liberally. In my view, in the fact of the present case, the petitioners should get benefit of doubt and as such, in my opinion, the prayer for condonation of delay should be allowed. In view of harassment caused to the Opp. party due to such wrong advice of the learned Advocate for the petitioners, I am, however, inclined to give relief to the petitioners provided the petitioners pay a sum of Rs.2,500/- as costs to the Opp. party. 13. I thus, set-aside the order impugned and allow the application under section 5 of the Limitation Act for condonation of delay in preferring the application under section 17(2) and 17(2) of the Act provided the petitioners deposit a sum of Rs.2,500/- in the Trial Court in the name of the Opp. party within a fortnight from date. Mr. party. 13. I thus, set-aside the order impugned and allow the application under section 5 of the Limitation Act for condonation of delay in preferring the application under section 17(2) and 17(2) of the Act provided the petitioners deposit a sum of Rs.2,500/- in the Trial Court in the name of the Opp. party within a fortnight from date. Mr. Majumder learned Advocate for the petitioners has already placed before this Court the xerox copy of the challans showing that his clients have already deposited the entire amount of current rents along with the amounts for the defaulted period with interest as prescribed under section 17(1) of the Act. That being the position, the learned Trial Judge is directed to dispose of the suit as expeditiously as possible. Since the suit has been filed in the year 1990, the learned Trial Judge is directed to dispose of the suit positively by December 31, 2000 without granting any unnecessary adjournment to either of the parties. 14. With the above observations, this revisional application is allowed. 15. Xerox certified copy of this order, if applied for, will be delivered within a week from application. Revisional application allowed.