Civil Appeal No 1931 of 1969
Appeal by Special Leave from the Judgment and Order dated 3 6 1969 of the Calcutta High Court in Civil Rule No 292468
Sukumar Ghosh for the Appellant
The Judgment of the Court was delivered by CHANDRACHUD C J
On November 27 1962 respondents filed a suit for eviction against the appellant under the West Bengal premises Tenancy Act 1956 The Act on the ground that the appellant was in arrears of rent that he had sublet the premises and that the respondents required the premises for their personal use
The summons of the suit was served on the appellant on January 9 1963 and he deposited the arrears of rent within a period of thirty days thereafter ie on February 5 1963
On July 10 respondents filed an application under section 173 of the Act for striking off the defence of the appellant on the ground that though the appellant had deposited the arrears of rent he had not deposited the interest due on the arrears as required by section 171 of the Act
By an order dated July 25 1963 the trial court accepted the respondents  contention and struck off the appellant s defence
On August 26 1963 the 947 appellant filed a civil revision application in the Calcutta High Court against that order but it was dismissed by the High Court on April 4 1968
Between August 26 1963 when the appellant filed the revision application in the High Court and April 4 1968 when the revision application was dismissed certain important events happened
On August 26 1967 an Ordinance was passed by the West Bengal Government by which a new section namely Section 17B was introduced into the Act
By that section tenants were given the right if the proceeding for eviction was not yet disposed of to apply within thirty days of the commencement of the Ordinance for setting aside the order striking off the defence
On the expiry of that Ordinance another Ordinance containing identical provisions was passed on January 8 1968This Ordinance was replaced on March 26 1968 by President s Act 4 of 1968
Section 17 B which was inserted in the Act by the two Ordinances was numbered as section 17 A under the President s Act the provisions of the section remaining unaltered
Section 12 of the President s Act provided that the said Act shall be deemed to have come into force on August 26 1967 which was the date on which the first Ordinance had come into force
After the dismissal of the revision application on April 4 1968the appellant filed an application on May 3 1968 in the Trial Court under section 17 A praying that the order dated July 25 1963 passed by it striking off his defence be set aside
It ought to be mentioned that though the Trial Court had passed the order striking off the appellant s defence as long back as in 1963 the eviction suit filed by the respondents continued to remain on the file because on September 16 1963 the High Court in the revision application filed by the appellant had issued an order staying all further proceedings in the suit
Along with the application under section 17 A the appellant filed an application under section 5 of the Indian praying that the delay caused in filing the application may for reasons stated therein be condoned
Both the applications were dismissed by the Trial Court by an order dated August 17 1968 which was confirmed by the Calcutta High Court in revision on June 3 1969
Being aggrieved by the judgment of the High Court in Civil Rule No 2924 of 1968 the tenant has preferred this appeal by special leave of this Court
The High Court has dismissed the application filed by the appellant under section 17 A of the Act on the ground that it was not filed within 30 days of August 26 1967 when the first Ordinance 948 came into force and further on the ground that since Section 5 of the had no application to the proceeding the Court had no power to condone the delay
It is patent that the application under section 17 A was not filed within the prescribed period of thirty days
The sole question for decision therefore is whether the provisions of section 5 of the can apply to an application under section 17 A of the Act
Section 5 of the provides to the extent relevant that any application may be admitted after the prescribed period if the applicant satisfies the Court that he had sufficient cause for not making the application within the said period
On the applicability of section 5 to the proceedings under section 17 A of the Act the provisions of section 39 of the Act have a material bearing and must be noticed
Section 39 of the Act provides Subject to the provisions in this Act relating to limitation all the provisions of the Indian Limitation Act 1908 shall apply to suits appeals and proceedings under this Act This provision which is clear and specific leaves no doubt that the provisions of the Limitation Act would apply to proceedings under the West Bengal Premises Tenancy Act subject to the condition that if there is a provision in the West Bengal Act relating to limitation that provision would prevail over the provisions of the Indian Limitation Act relating to limitation
Since the West Bengal Act prescribes a specific period of limitation for filing an application for setting aside an order striking out the defence namely a period of 30 days commencing on August 26 1967 when the first Ordinance came into force that period would undoubtedly apply to the making of the application under section 17A of the Act
And since the appellant did not file his application under section 17 A before the due date that is to say before September 25 1967 the application must be held to be barred by limitation
But by reason of section 39 of the Act all other provisions of the Limitation Act would be attracted including section 5 of the latter Act
Whether the appellant has made out sufficient ground for the condonation of delay is another matter but in view of the provisions of section 39 of the Act it seems to us clear that the application filed by the appellant under section 5 of the Limitation Act for condonation of delay is maintainable and has to be decided on merits
The learned Single Judge of the Calcutta 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 949 limitation for filing a petition to set aside an order striking out the defence 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 perference to the period if any prescribed by the Limitation Act
But apart from such an over riding effect of the period of limitation prescribed by the Act not only that the 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 a 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
In Ms Pakarmal Gurudayal vs Sagarmal Bengani1 a Division Bench of the Calcutta High Court took the view that section 5 of the Limitation Act would apply even to an application made for setting aside the decree passed after and following upon an order striking out of the defence
We endorse the view of the High Court which ex hypothesi would justify the application of section 5 of the Limitation Act to an application for setting aside an order striking out the defence
That leaves for consideration the question whether the appellant has shown sufficient cause for not preferring his application within a period of thirty days after August 26 1967
On this aspect of the matter it is relevant to bear in mind that in the revision application filed by the appellant against the order striking out his defence the High Court on September 16 1963 had stayed all further proceedings in the suit
If the appellant were to succeed in that revision application the suit would have been required to be heard on merits and there would have been no reason or occasion for him to resort to the provision newly inserted by the Ordinance under which an application could be made for setting aside the order striking out the defence
The appellant was evidently advised wrongly as regards the true legal position as a result of which he awaited the disposal of his revision application
He filed the application under section 17A within 30 days of the date on which the revision application was dismissed
The appellant acted bona fide in pursuing his remedy by way of a revision application which he had already filed and which if successful could have given him effective relief
We are satisfied that he had sufficient cause for not filing the application under 950 section 17A within the prescribed period
Accordingly the delay caused in filing that application must be condoned under section 5 of the Limitation Act and the application under section 17A must be allowed
For these reasons we allow the application filed by the appellant under section 17A of the Act set aside the order dated July 25 1963 striking out his defence and remit the matter back to the Trial Court for deciding the respondents  suit for eviction in accordance with law The suit has been pending since September 1962 and we direct that it shall be disposed of expeditiously
The appeal is accordingly allowed and the High Court s Judgment is set aside but without an order of costs
V D K Appeal allowed


Summary:
In the eviction suit filed by the respondents against the appellant under the West Bengal Premises Tenancy Act 1956 on the ground that the appellant was in arrears of rent that he had sub let the premises and that the respondents required the premises for their personal use the appellant deposited the arrears of rent within a period of 30 days ie within the time but did not deposit the interest due on the arrears as required by section 17i of the Act
The respondents therefore filed an application under section 173 of the Act to strike off the appellant s defence for failure to deposit the interest
The said application was accepted by the Trial Court and therefore the respondents filed a civil revision application in the Calcutta High Court against that order which was dismissed on April 4 1968
During the pendency of the said revision application section 17A was newly introduced in the 1956 Act with retrospective from 26 8 1967
By that section tenants were given the right if the proceedings for eviction was not disposed of to apply within 30 days of the said date for setting aside the order for striking off the defence
In view of the challenge by way of revision application in the High Court against the order striking off his defence the appellant did not take recourse to the provisions of the newly introduced section 17A of the West Bengal Premises Tenancy Act
After the dismissal of the revision petition the appellant filed an application under the new section 17A of the Act praying that the order dated July 25 1963 passed by the Trial Court striking off his defence be set aside
Along with the said application an application to condone the delay under section 5 of the Limitation Act was also filed
The Trial Court dismissed both the applications and the High Court confirmed that order in revision
Allowing the appeal by special leave the Court  HELD 1
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 over riding effect of the period of limitation prescribed by the Act not only that the other provisions of the Limitation Act do not stand excluded or superseded but they are expressly made applicable by section 39 of the Act
949 A B 2
Section 39 of the West Bengal Premises Tenancy Act 1956 which is clear and specific leaves no doubt that the provisions of the Limitation Act 946 would apply to proceedings under the West Bengal Premises Tenancy Act subject to the condition that if there is a provision in the West Bengal Act relating to limitation that provision would prevail over the provisions of the Indian Limitation Act relating to limitation
Since the West Bengal Act prescribed a specific period of limitation for filing an application for setting aside an order striking out the defence namely a period of 30 days commencing on August 26
1967 when the first Ordinance came into force that period would undoubtedly apply to the making of the application under section 17A of the Act
Since the appellant did not file his application under section 17A before the due date that is to say before September 25 1967 the application must be held to be barred by limitation
But by reason of section 39 of the Act all other provisions of the Limitation Act would be attracted including section 5 of the latter Act
948 D F In the instant case since the appellant did not file his application under section 17A of the Act before the due date that is to say before September 25 1967 the application under section 17A is barred by limitations
However the application filed by him under section 5 of the Limitation Act for condonation of delay is maintainable
948 A B G Ms Pakarmal Gurudayal vs Sagarmal Bengani approved
When a 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
949 B C