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2013 DIGILAW 728 (CAL)

Diopharma v. Rabindra Nath Sadhukhan

2013-09-26

TARUN KUMAR GUPTA

body2013
Judgment : Tarun Kumar Gupta, J. Both these revisional applications are taken up for hearing analogously as a common question of law is involved in both the matters. The petitioner company had several separate tenancies under the O. P. landlords. O. P. landlords filed Title Suit No.554 of 2006 as well as Title Suit No..555 of 2006 against the petitioner tenant in respect of two separate tenancies on the ground of default in payment of rent. The defendant company received the summons in both the cases on 13th of January, 2007 and appeared on 28th of March, 2007 by filing written statement and vokalatnama. The petitioner defendant filed application under Section 7 (1) and 7 (2) of the West Bengal Premises Tenancy Act, 1997 (hereafter to be referred as Act of 1997) on 18th of September, 2007 in both the suits. Learned trial court passed separate but identical order on 26th of June, 2012 in both the suits rejecting said application filed under Section 7(2) of the Act of 1997 as those were filed much beyond the prescribed time of limitation. The petitioner defendant preferred two revisional applications being C. O. No.2801 of 2011 and C. O. No.2731 of 2011 against said orders of rejection of the applications under Section 7(2) of the Act of 1997 both dated 26th of June, 2012. One of the Hon’ble Judges of this Court disposed of said two revisional applications by an order dated 26th of June, 2012. Learned revisional court affirmed said order of rejection of the application under Section 7(2) of the Act of 1997 by the orders impugned dated 26.06.2012 on the ground of delay but permitted the petitioner to file an application explaining said delay and directing learned trial court to dispose of said application on merit, if filed. Admittedly the petitioner defendant filed applications under Section 5 of the Limitation Act in both the ejectment suits on 30th of January, 2013 explaining their delay in filing said applications under Section 7(2) of the Act of 1997. However, learned trial court rejected said applications under Section 5 of the Limitation Act in both the cases by separate orders passed on 27th of February, 2013. Mr. S. P. Roy Chowdhury, learned senior counsel appearing for the petitioner tenant, submits that the petitioner defendant on receipt of summons on 13th of January, 2007 engaged an advocate Mr. However, learned trial court rejected said applications under Section 5 of the Limitation Act in both the cases by separate orders passed on 27th of February, 2013. Mr. S. P. Roy Chowdhury, learned senior counsel appearing for the petitioner tenant, submits that the petitioner defendant on receipt of summons on 13th of January, 2007 engaged an advocate Mr. Champak Kanjilal for looking after the ejectment suits and that in view of not giving any advice by said counsel the petitioner could not file the application under Section 7(2) of the Act of 1997 in time. He further submits that as there was no advice for filing an application under Section 5 of the Limitation Act for condonation of said delay at the time of filing the application under Section 7(2) of the Act of 1997, the petitioner did not file said application praying for condonation of delay initially. He submits that after obtaining leave of this Court vide Order dated 26th of June, 2012 the petitioner tenant filed said applications under Section 5 of the Limitation Act on 30th of January, 2013 explaining the grounds of delay in filing applications under Section 7(2) of the Act of 1997. In this connection Mr. Roy Chowdhury submits that the courts should take liberal approach at the time of considering an application praying for condonation of delay. He further submits that the fault on the part of a lawyer is a good ground for condonation of delay as a client should not suffer for latches on the part of his learned counsel. He next submits that the court has ample power to compensate the other side by awarding sufficient cost while allowing the application praying for condonation of delay. In support of his submission he refers case laws reported in AIR 1987 SC 1353 (Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others), AIR 2001 SC 2497 (M. K. Prasad vs. P. Arumugam) , 1999 (1) CLT LT HC 51 (Ruby General Hospital Ltd. vs. Chandmaku Construction Private Ltd.) and (2009) 3 SCC 726 (Prem Kanwar vs. State of Rajasthan). Mr. Katiji and others), AIR 2001 SC 2497 (M. K. Prasad vs. P. Arumugam) , 1999 (1) CLT LT HC 51 (Ruby General Hospital Ltd. vs. Chandmaku Construction Private Ltd.) and (2009) 3 SCC 726 (Prem Kanwar vs. State of Rajasthan). Mr. Sudhis Dasgupta, learned senior counsel appearing for O. P. landlords, on the other hand, submits that liberal approach in the matter of disposing of an application praying for condonation of delay under Section 5 of the Limitation Act does not mean that the Court will accept whatever flimsy explanation given by the petitioner as sufficient, thereby depriving the other side from a valuable right accrued to them for the delay caused by the petitioner. He further submits that first of all the petitioner has to establish that he was not guilty of any negligence or latches for causing said delay. He further submits that the petitioner defendants just made their earlier counsel scapegoat for the delay and latches on their part in making the application under Section 7(2) much beyond the prescribed time. He further submits that the petitioner defendant was trying to delay the eviction suit on one way or other and that delayed filing of the application under Section 7 (2) of the Act of 1997 was one of the ploys in that direction. In this connection he submits that at the time of disposal of earlier revisional applications being C. O. No.2801 of 2011 and C. O. 2731 of 2011 the petitioner was permitted to take out necessary application for condonation of delay in filing the application under Section 7 (2) of the Act of 1997 vide order dated 26th of June, 2012. According to him, though the petitioner obtained certified copy of said order dated 26.06.2012 of this Court on 19th of July, 2012 but they filed the application for condonation of delay under Section 5 of the Limitation Act only on 30th of January, 2013 i.e., after more than seven months without any explanation whatsoever. According to him, this conduct of the petitioner amply shows that they were trying to delay the eviction suits by filing the petitions of all types belatedly and that their approach was anything but bona fide. According to Mr. Dasgupta the order impugned rejecting the mala fide applications filed by the petitioner tenant under Section 5 of the Limitation Act should not be disturbed. According to Mr. Dasgupta the order impugned rejecting the mala fide applications filed by the petitioner tenant under Section 5 of the Limitation Act should not be disturbed. I have considered the submissions made by learned counsels of the parties. Perused the order impugned in the backdrop of the admitted facts of the case as stated above as well as other materials on record. There is no denial that the petitioner defendant received summons in the cases on 13th of Janaury, 2007. In terms of Section 7 (2) of the Act of 1997 said application is required to be filed in the court within one month from the date of receipt of the summons. Admittedly the petitioner defendant appeared in the trial court on 20th of March, 2007 to file written statement and filed the application under Section 7 (2) of the Act of 1997 only on 18th of September, 2007. The petitioner defendant tried to explain the delayed filing of the application under Section 7 (2) by stating in para 6 (b) of their application under Section 5 of the Limitation Act that immediate after receipt of the summons they contacted with the learned counsel Mr. Champak Kanjilal. It is further case that though he gave an assurance to the defendant that he would take necessary steps but did not give any advice for filing application under Section 7(2) either promptly or along with an application under Section 5 of the Limitation Act. But the petitioner defendant did not specify the date when they contacted their earlier lawyer Mr. Kanjilal, in the four corners of any of the applications filed by them. They also did not examine said learned counsel Mr. Kanjilal in Court to justify their claim during hearing. It is true that in the decisions referred by Mr. Roy Chowdhury as well as other decisions it has been held by the Hon’ble Apex Court that the words “sufficient cause” for not making the application within the period of limitation’ should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. Roy Chowdhury as well as other decisions it has been held by the Hon’ble Apex Court that the words “sufficient cause” for not making the application within the period of limitation’ should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words ‘sufficient cause’ in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fide, deliberate inaction or negligence on the part of the petitioner. [stress added] In the case in hand, admittedly, the High Court while disposing earlier revisional applications being C. O. No.2801 of 2011 and C. O. No.2731 of 2011 permitted the petitioner defendant to take out necessary application under Section 5 of the Limitation Act for explaining the delay in filing the application under Section 7 (2) of the Act of 1997 vide order dated 26th of June, 2012. Admittedly, the petitioner defendant obtained certified copy of said order dated 26.06.2012 on 19th of July, 2012 as it is apparent from the enclosed copy of said order of the revisional court which is lying in the record. If the petitioner defendant is really sincere then they would have filed said application under Section 5 of the Limitation Act much earlier and promptly soon after receipt of certified copy of order of this Court on 19th of July, 2012. As per their version by this time they have changed their learned counsel as their earlier counsel Mr. Kanjilal, according to them, is negligent. No explanation whatsoever was given in the petition under Section 5 of the Limitation Act as to why said application was filed as far back as on 30.01.2013 when they admittedly received the certified copy of order dated 26.06.2012 of this Court on 19th of July, 2012. In this connection it is also pertinent to note that the petitioner defendant is not a rustic villager or an average person. The petitioner is a partnership firm being represented by a partner. It has been held by the Hon’ble Apex Court in several cases that even if the term ‘sufficient cause’ has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The petitioner is a partnership firm being represented by a partner. It has been held by the Hon’ble Apex Court in several cases that even if the term ‘sufficient cause’ has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. It was further held that once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the petitioner, particularly when the delay is directly a result of negligence, default or inaction of that party and that justice must be done to both parties equally. From the overall conduct of the petitioner defendant it is palpable that they tried to shift the blame for the delay in filing of the application under Section 7 (2) of the Act of 1997 on the part of their earlier counsel Mr. Kanjilal, but there is no explanation whatsoever as to why after seven months of passing of the order dated 24th of June, 2012 in the earlier revisional applications, the application under Section 5 of the Limitation Act was filed. This only goes to show that the petitioner defendant being a tenant took dilatory tactics in the ejectment suits and that they were guilty of deliberate inaction and negligence. Under these facts and circumstances I find no cogent ground to interfere with the order impugned rejecting the applications under Section 5 of the Limitation Act filed by the petitioner tenants in eviction suits. As a result, both the revisional applications are hereby dismissed on contest. However, I pass no order as to costs.