7 vs Sri Sreeram Jaiswal
2022 Latest Caselaw 7695 Cal

10 21.11. C.O. 2276 of 2022 AG 2022 M / RKB Ct Smt. Kakali Kundu & Ors 07 Vs Sri Sreeram Jaiswal

Mr. Ganesh Prasad Shaw, Mr. Gaurav Kumar, ... For the petitioners.

Mr. D. K. Mukherjee, Mr. D. K. Chandra, ... For the opposite party.

While assailing the impugned order dated 6 th May,

2022 and 24th June, 2022 passed by learned Chief

Judge, Presidency Small Causes Court, Calcutta in

Ejectment Suit No. 363 of 2018, Mr. Ganesh Prasad

Shaw, leaned advocate appearing for the petitioners

submits that application praying for condonation of

delay in an Ejectment suit instituted taking the grounds

of Section 6 of the West Bengal Premises Tenancy Act,

has been allowed, in the absence of the

petitioners/plaintiffs initiating eviction suit against the

opposite party/defendant.

It is contended by the learned advocate for the

petitioners that there is no scope of application of

Section 5 of the Limitation Act, in view of the inbuilt

mechanism provided in Section 7 of the West Bengal

Premises Tenancy Act, prescribing a specific limitation

therein, and as such the application praying for

condonation of delay in filing application under Section

7 (1) and 7 (2) of West Bengal Premises Tenancy Act,

has been improperly decided making infraction of the

settled proposition of law, and the further direction

setting those applications for hearing of 7(1) and 7(2) of

West Bengal Premises Tenancy Act, is an unauthorised

exercise undertaken by the court below.

Reliance is placed by the learned advocate for the

petitioners on a decision reported in (2019) 10 SCC

660 delivered in the case of Bijay Kumar Singh and

Ors. Vs. Amit Kumar Chamariya and Ors. to submit

that Section 7 of West Bengal Premises Tenancy Act

having provided a complete mechanism prescribing a

specific limitation therein, there is no scope of

application of Section 5 of Limitation Act in such state

of affairs.

Upon assailing the impugned orders, learned

advocate appearing for the petitioners further submits

that opposite party/defendant entered his appearance

on 30th January, 2019, upon receiving summons, and

then filed a petition under Order 7 Rule 11 of the Code

of Civil Procedure, which was ultimately rejected by the

Court below on 23rd December, 2021.

Thus neither any application seeking condonation

of delay, nor any application under Section 7(1) and 7(2)

of West Bengal Premises Tenancy Act, could be filed by

the opposite party, doing strict adherence to the

provisions mentioned in Section 7 of the West Bengal

Premises Tenancy Act.

Per contra, Mr. D. K. Mukherjee, learned advocate

for the opposite party/defendant submits that

defendant was put to a dilemma, to whom the rent

could be deposited for a change in the circumstances,

when a Special Officer has been appointed in

connection with an administrative suit.

Regarding the applicability of the judgment

referred by the petitioners Mr. D. K. Mukherjee submits

that when 7(1) and 7(2) application has not yet been

finally disposed of, there is hardly any scope of

application of such decision.

Having considered the submission of both sides, it

appears that mere filing of a petition under Order 7 Rule

11 C.P.C. would not extend automatically the time

period for preferring an application under Section 7(1)

and 7(2) immediately after entering appearance in the

pending eviction suit.

Order 7 Rule 11 appears to be not controlled by

the provisions incorporated in Section 7 of West Bengal

Premises Tenancy Act.

It is not in dispute between the parties, that

defendant/opposite party entered his appearance on

30th January, 2019. Therefore, opposite party/defendant

ought to have taken recourse to Section 7(1) and 7(2) of

the West Bengal Premises Tenancy Act, if there be any

in accordance with limitation prescribed in the Act

itself, which has been propounded in the Apex Court by

the case of Bijay Kumar Singh(supra), as rightly

referred by the petitioners.

In view of such settled proposition of law, there

may not be any efforts undertaken to unsettle the

settled proposition of law.

The law being thus specific and clear that there is

no application of Section 5 of the Limitation Act, under

Section 7 of the West Bengal Premises Tenancy Act, the

impugned orders allowing condonation of delay, thereby

permitting the defendant/opposite party to file 7(1) and

7(2) application at a belated stage, making infraction of

law, and subsequently setting those two applications

for hearing, is not according to law. The condonation

application thus not being decided in accordance with

law, and being in absence of the petitioners, the same is

also set aside with a direction upon the court below to

hear out the same within fortnight from the date of

communication of this order, providing a chance to the

petitioners to file written objection against such prayer

for condonation of delay, if not already filed in the

meantime, and decide the same read with Section 7(1)

and 7(2) of West Bengal Premises Tenancy Act, in

accordance with law, so that the proposition of law

propounded by the Apex Court, as referred hereinabove

may be duly considered in accordance with law.

With this observation and direction, the revisional

application stands disposed of.

Urgent photostat certified copy of the order, if

applied for, be given to the parties on usual

undertakings.

(Subhasis Dasgupta, J)