Case: Rajendera Nath Kar Vs. Gangadas and Gangadhar Rathi and Others

The sole question for decision, therefore, is whether the provisions of section 5 of the Limitation Act can apply to an application under section 17-A of the Act.Section 5 of the Limitation Act 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." 5. This provision, which is clear and specific, leaves n o 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 file d by the appellant under section 5 of the Limitation Act for condonation of delay is maintainable and has to be decided on merits. 6. The learned Single Judge of the Calcutta Court has referred in his judgment of June 3, 1969 to the pro visions of section 39 but he took the view that since section 17A lays down a special period of 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 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. 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. 7. In M/s. Pakarmal Gurudayal v. Sagarmal Bengani(1) 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. 8. 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 ha d 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 a waited 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 section 17A within the prescribed period. Accordingly, the del ay caused in filing that application must be condoned under section 5 of the Limitation Act and the application under section 17A must be allowed. 9. 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. 10.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 n o 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 file d by the appellant under section 5 of the Limitation Act for condonation of delay is maintainable and has to be decided one learned Single Judge of the Calcutta Court has referred in his judgment of June 3, 1969 to the pro visions of section 39 but he took the view that since section 17A lays down a special period of 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 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. 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 periodOn 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 ha d 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 a waited 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 section 17A within the prescribed period. Accordingly, the del ay caused in filing that application must be condoned under section 5 of the Limitation Act and the application under section 17A must ber 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.