Calcutta High Court (Appellete Side)
Hira Devi Jain vs Pritepal Singh & Anr on 18 September, 2024
Author: Biswajit Basu
Bench: Biswajit Basu
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
(CIVIL REVISIONAL JURISDICTION)
Coram:
The Hon'ble Justice Biswajit Basu.
C.O. 391 of 2024
HIRA DEVI JAIN
- VS -
PRITEPAL SINGH & ANR.
For the Petitioner: Mr. Dhananjay Banerjee,
Mr. Samrat Chowdhury,
Ms. Oindrila Ghosh.
For the Opposite Parties: Mr. Souradipta Banerjee,
Ms. Fatima Hassan,
Mr. Arunesh Pathak.
Heard on : 03.09.2024
Judgment on : 18.09.2024
Biswajit Basu, J:
1.
The defendant in a suit for ejectment is the petitioner of the instant
application under Article 227 of the Constitution of India which is
directed against the order no. 33 dated December 12, 2023 passed by
the learned Judge, 3rd Bench, Presidency Small Causes Court at
Calcutta in the said suit being Ejectment Suit No. 146 of 2018.
2. The learned Trial Judge by the order impugned has rejected the
application of the petitioner under Section 7(1) of the West Bengal
Premises Tenancy Act, 1997 (hereinafter referred to as 'the said Act of
1997' in short) ex parte on the ground that the said application was
filed four days beyond the period of limitation prescribed under the
aforesaid provision of the said Act of 1997 and in consequence
thereof, has rejected the petitioner's other application under Section
7(2) of the said Act of 1997 and upon such rejection, the learned Trial
Judge has exercised the power under Section 7(3) of the said Act of
1997 to strike off the defence of the petitioner against the delivery of
possession.
3. Mr. Dhananjay Banerjee, learned advocate for the petitioner submits
that the summons was served upon the petitioner on April 24, 2018;
therefore, in terms of Section 7(1) of the said Act of 1997, he is
required to deposit the admitted arrear rent and current rent by May
24, 2018 but the said date fell within the summer vacation of the
Court, as such by virtue of Section 4 of the Limitation Act,
1963(hereinafter referred to as 'the said Act of 1963') the date of the
re-opening of the Court was the last date for filing of the said
applications which the petitioner did, therefore, the learned Trial
Judge has acted with material irregularity in dismissing the said
applications on the ground of limitation.
4. Mr. Souradipta Banerjee, learned advocate for the opposite parties, on
the other hand, submits that none of the provisions of the said Act of
1963 is applicable in respect of an application under Section 7 of the
said Act of 1997, to buttress his such argument, he places reliance on
the decision of the Hon'ble Supreme Court in the case of BIJOY
KUMAR SINGH vs. AMIT KUMAR CHAMARIA reported in (2019) 10
Supreme Court Cases 660 and the decisions of the Hon'ble Division
Bench of this Court in the case of THE CALCUTTA GUJARATI
EDUCATION SOCIETY vs. SRI AJIT NARAYAN KAPOOR reported in
2022 (1) Indian Civil Cases 414 (Cal) and in the case of ARSALA
KHAN vs. LAND & BRICKS & ENTERTAINMENT LTD. reported in
2022(3) Indian Civil Cases 37(Cal), therefore Section 4 of the said
Act of 1963 cannot be resorted to extend the period of limitation
prescribed under the said provision of the said Act of 1997.
5. Mr. Dhananjay Banerjee, in response to the said argument submits
that even if it is assumed that the said Act of 1963 is not applicable in
respect of an application under Section 7 of the said Act of 1997, but
by virtue of Section 12 of the Bengal General Clauses Act, 1899, the
date of reopening of the Court after the summer vacation was the last
date of the period prescribed for filing of such applications; in support
of his such submission, he refers to a Full Bench decision of this
Court in the case of BALAGERIA CENTRAL COOPERATIVE BANK
LTD. vs. STATE OF WEST BENGAL & ORS. reported in 2010 (3)
CHN (CAL) 163.
Heard learned counsel for the parties, perused the materials-on-
record.
6. The tenant in a suit for ejectment under Section 6 of the said Act of
1997, in terms of Section 7(1) thereof, is obliged to pay to the landlord
or deposit with the Court, arrears of rent calculated at the rate at
which it was last paid and upto the end of the month previous to the
month in which the payment is made, together with interest at the
rate of ten percent per annum, and in terms of sub-section (b) thereof,
such payment or deposit shall be made within one month from the
date of service of summons upon him, or where he appears in the
proceeding without the summons being served upon him, within one
month of his such appearance.
7. In the present case, the summons was admittedly served upon the
petitioner on April 24, 2018; therefore, in terms of the aforesaid
provision of the said Act of 1997, May 24, 2018 was the last date for
complying the requirements of Section 7(1) of the said Act of 1997 but
the said date fell during the summer vacation of the Court as such, the
required compliance could not be made.
8. Section 4 of the said Act of 1963 provides that where the prescribed
period for any suit, appeal or application expires on a day when the
Court is closed, the suit, appeal or application may be instituted,
preferred or made on the day when the court re-opens but the
plaintiffs have taken an objection that in view of the judgment of the
Hon'ble Supreme Court in the case of BIJOY KUMAR SINGH (supra)
and the decisions of the Hon'ble Division Bench of this Court in the
case of THE CALCUTTA GUJARATI EDUCATION SOCIETY (supra)
and in the case of ARSALA KHAN (supra), the said Act of 1963, in its
entirety, is not applicable in respect of an application under Section 7
of the said Act of 1997, as such Section 4 of the said Act of 1963
cannot come to the rescue of a tenant who has failed to file an
application under 7(1) of the said Act of 1997 within the period
prescribed under sub-section(b) thereof.
9. Let me now consider how far the said objection of the plaintiffs is
sustainable. The Hon'ble Supreme Court in the case of BIJOY KUMAR
SINGH (supra) has held that the tenant will not be able to take
recourse of Section 5 of the Limitation Act, 1963 as it is not an
application alone which is required to be filed by the tenant, but the
tenant has to deposit the admitted arrears of rent as well. Paragraph
21 of the said decision being relevant is quoted below:-
"21. Sub-section (3) provides for consequences of non-
payment of rent i.e. striking off the defence against the
delivery of the possession and to proceed with the hearing
of the suit. Such provision is materially different from sub-
sections (2-A) and (2-B) which was being examined by this
Court in B.P. Khemka5. Sub-sections (2-A) and (2-B) of
Section 17 of the 1956 Act confer unfettered power on the
court to extend the period of deposit of rent, which is
circumscribed by the proviso to Section 7(2) and sub-section
(3) of Section 7 of the Act. Therefore, the provisions of sub-
section (2) are mandatory and required to be scrupulously
followed by the tenant, if the tenant has to avoid the
eviction on account of non-payment of arrears of rent under
Section 6 of the Act. There is an outer limit for extension of
time to deposit of arrears of rent in terms of the proviso to
sub-section (2) of Section 7 of the Act. The consequences
flowing from non-deposit of rent are contemplated under
sub-section(3) of Section 7 of the Act. Therefore, if the tenant
fails to deposit admitted arrears of rent within one month of
receipt of summons or within one month of appearance
without summons and also fails to make an application for
determination of the disputed amount of rate of rent and the
period of arrears and the subsequent non-payment on
determining of the arrears of rent, will entail the eviction of
the tenant. Section 7 of the Act provides for a complete
mechanism for avoiding eviction on the ground of arrears of
rent, provided that the tenant take steps as contemplated
under sub-section (2) Section 7 of the Act and deposits the
arrears of rent on determination of the disputed amount.
The deposit of rent along with an application for
determination of dispute is a precondition to avoid eviction
on the ground of non-payment of arrears of rent. In view
thereof, tenant will not be able to take recourse to Section 5
of the Limitation Act as it is not an application alone which
is required to be filed by the tenant but the tenant has to
deposit admitted arrears of rent as well.(Emphasis
supplied)"
10. In the case of CALCUTTA GUJARATI EDUCATION SOCIETY (supra)
the following question was referred to the Hon'ble Division Bench of
this Court for answer:-
"......"Does the view of the Division Bench of this Court
that section 5 of the Limitation Act can be applied to
condone delay in making applications under subsections (1)
and (2) of Section 7 of the West Bengal Premises Tenancy
Act, 1997, as held in the Subrata Mukherjee case (supra),
survive in view of the decisions of the Hon'ble Supreme
Court in the Nasiruddin case (2003(1) RLR (S.C.) 477), the
Ashoke Kumar Mishra case (supra), Manjushree
Chakraborty case (supra)."...."
11. The said Division Bench while answering the said question at
paragraph 15 of the said judgment has observed as follows:-
"...15....Here, provision in Article 137 cannot be made
applicable. Furthermore, where it is a requirement of
compliance by the tenant to seek protection, mandated by
the statute as competently legislated by the State
legislature and specifically limiting application of the 1963
Act, there cannot be occasioned for application of the period
of three years, overriding the period an extension specified
by the local law and thereafter condonation of delay as
under Section 5......"
and has answered the said question at paragraph 16 of the said
judgment as under:-
"...16....we answer the question refer to say that the
Limitation Act, 1963 has no application in respect of an
application by the tenant under Section 7 for determination
of arrears of deposited rent......"
12. The scope of the reference, the discussion made in the body of the
judgment of the said Hon'ble Division Bench are not agreeing with the
concluding part of the said decision at paragraph 16 quoted above,
therefore the said conclusion is of no consequence.
13. The Hon'ble Supreme Court, in the case of BIJOY KUMAR SINGH
(supra) and the Hon'ble Division Bench of this Court in the case of
THE CALCUTTA GUJARATI EDUCATION SOCIETY (supra) and in
the case of ARSALA KHAN (supra) have excluded the applicability of
Section 5 of the said Act of 1963 only to extend the period of limitation
prescribed under Section 7(1)(b) of the said Act of 1997 to comply with
the provision of Section 7(1) thereof.
14. Apart from the aforesaid, when in a proceeding, the said Act of 1963
does not apply, the provision of Section 12 of the Bengal General
Clauses Act, 1899 does and by virtue thereof, whereby any Bengal
Act/West Bengal Act made after the commencement of the said Act of
1899, any Act or proceeding, if directed or allowed to be done or taken
in any Court or Office on a certain day or within a prescribed period,
then if the Court or office is closed on that day or the last day of the
prescribed period, the act or proceeding shall be considered as done or
taken in due time, if it is done or taken on the next day afterwards on
which the Court or Office is open.
15. The Full Bench of this Court in the case of BALAGERIA CENTRAL
COOPERATIVE BANK LTD.(supra), considering the scope of Section
12 of the Bengal General Clauses Act, 1899, has held that the general
principles for computing the period of limitation, which principles are
otherwise also applicable, even when the provisions of the Limitation
Act, 1963 do not apply.
Summing up the discussion made above, this Court overrules
the objection taken by the opposite parties as to the maintainability of
the applications of the petitioner under Sections 7(1) and (2) of the
said Act of 1997 on the ground of limitation, consequently, sets aside
the order impugned. The learned Trial Judge is requested to dispose of
the said applications expeditiously, in accordance with law.
C.O. 391 of 2024 is allowed with the above terms without any
order as to costs.
Parties to act on the server copy of this judgment duly
downloaded from the official website of the Court.
Urgent photostat certified copy of this judgment, if applied for,
be supplied to the parties upon compliance with all requisite
formalities.
(BISWAJIT BASU, J.)
