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RAJENDERA NATH KAR v.

GANGADAS & GANGADHAR RATH! & ORS.

January 12, 1979

tY. V. CllANDRACHUD, C.J., V. D. TULZAPURKAR AND A. P. SEN, JJ.)

Wes/ Bengal Pre1nises Tenancy A.ct, 1956-Scope of Stctions 11A and 39 tr.ad with s. 5 of the Limitation Act, 1963-Condonation of delay does not "?.cal! t:Xl't'11Sion of the period of li1nitation prescribed under the Act.

Jn 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 ofrent within a period of 30 days i.e. within the time but did not deposit th~ intnest due on the arrears as required by s. 17(i) of the Act.

The respondents therefore, filed an application 1:1-nder s. 17 (3) 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, s. 17A was newly intrcduced in the 1956 Act with retrospect1\'c from 26-8-1967.

By that section tenants v.1ere given the right, if the proceedings for eV-iction was not disposed of, to apply within 30 days of the said dttte for setting aside the order for .striking off the defence. Jn view of the challenge by wa'y of revision application in the High Court against the order striking off his defence -the aprclh1r, t did not take recourse to the provisions of the newly introduced s. 17 A of the West Bengal Premises T'enoocy Act.

After the dismissal of the revision petition, the appellant filed an application under the ne\v s. 17A of the Act praying that the order dated July 25, 1963 passed by the Trial Court, striking off his defence be set aside.

A1ong with the aid application. an application to condone the delay under Eection of the Limitation Act was also filed. The Trial Court tlism\ssed both the applications and the Hi£h Court confirmed that order in revision.

Allowing the appeal by special leave, the Court

HELD : 1. The true meaning and effect of s. 39 is that if any special period G 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 presciibcd by the Act, not only that the other provisions of the Limilation Act do not stand excluded or superseded, but they are expressly made applicable by s. 39 of the Act. [949 A-BJ

2. Section 39 of the West Bengal Premises 1'enancy Act, 1956, 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 BCngal Act relating to J; mitatk1n, that provision \voul<l prevail over the provisions of the Indian Limitation Act relating to limitation. Since the West Bengal Act prescnOed a specific period of limitation for filing an application for scttlng aside an order st!ilting out the defence, namely a period of 30 days comn1encing on August 26. 1967 'vhcn the first Ordinance came into force, that period would undoubtedly apply to the n1aking of the application under s. 17A of the Act. Since the appellant did not file bis application under s. 17A before the due date, that is to say, before September 25, 1967, the application must be held to be barred by ]imitation. But, by reason of s. 39 of the Act, all other provisions of the Limitation Act would be attracted including '' 5 of the latter /\ct. [948 D-F]

Jn the instant case since the appcllanl <lid not file his application under s. 17A of the Aet, before the due date, thnt is to say, before September 25, 1967, the app1ication under s. 17A is barred by limtta-t:ions, Ho\vcvcr, the application filed by him un<lcr s. 5 of the Lilnitation Act for condonation of delay is maintainable. [948 A-B, G]

M/s. J>akarmal Gurudayal v. Sagannal Bengani 16 C.W.N. 486 app:ovcd.

3. When a Court condones the delay caused in filing a proceeding, i.t does r:ct c.xtcnd the period of Jimitation prescribed by law for filing it. It treats the

proceeding as if it is filed .. vithin linlltation, \vhich it has the power to do if

ntlicicnt cause is shown for not filing •he proceeding within the prescribed peri<><l. IS49 B-Cl

Crv:lL APPELLATE JURISDICTION: 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. 2924168.

Sukunlfir G/iosh for the Appellant.

'The Judgment of the Court was delivered by

CHANDRACJIUD, C. J.-On November 27, 1962 respcmdents filed a suit for eviction against the appellant under the West Bengal premises Tenancy Act. l 956 ("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 ptemiscs 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 i.e. on February 5, 1963.

On July 10, respondents filed an application umlcr section 17 (3) of the Act for striking off the defence of the appellant on the ground that though the appellant had deposited the arrears o[ rent, he had 11ot deposited the interest due on the arrears, as required by section 1 7 (1) 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

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R. N. KAR v. GANGADAS (Chandrachud, C.J.) 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, ce11ain 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, 1968. This 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 1 (2) 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, 1968, the appellant fikd 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 Jong back as in 1963, the eviction suit filed by the rc,; pondcnts 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 i11 the suit.

Along with the application under section 17-A, the appellant filed an application under sccti.on 5 of the Indian Limitation Act, 1963 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 appcl- H !ant under section 17-A of the Act on the ground .that it was not • filed within 30 days of August 26, !967 when the first Ordinance

came into force and further on the ground that since Section 5 of the Limitation Act, 1963 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 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 C 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 cominencing on August 26, 1967 when the first Ordinance came into force, that period would undoubtedly apply to the making of F the application under section 17 A of the Act.

And since the appellant did not file his application under section 17-A before the due

date, that i"s 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 attrac-

G ted, 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 meri\s.

H 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 sine c section 17 A lays down a special period of •

R. N. KAR v. GANGADAS ( Chandraohud, C.J.) 949

limitation for filing a petition to set aside an order striking ont the defence, that period could not be extended by invoking the provi" sions of the Limitation Act.

This view is unsupportable.

The true meaning and effect of section 39 is that if any special period of Jimi- 1ation 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 or 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 M/s. Pokarmal Gurudayal v. Sagarmal Bengani(') 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 tihown sufficient cause for not preferring his application within a period <>f 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 rnvision application.

He filed the application under section 1 7 A 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 cSatisfied that he had sufficient cause for not filing the application under

(I) 76 C'akuita Weekly Notes 486.

950 SuPREMB COURT REPORTS [1979] 2 s.c.rr.

A section 17 A within the prescribed period.

Accordingly, tlie delay cauSed in filing that application must be condoned under section 5. of the Limitation Act and the application under section 17 A must he 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 B striking ont his defence and remit the matter back to the Trial Court for deciding the respondents' suit for eviction in accordance with Jaw.

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.

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