Posted On by &filed under Calcutta High Court, High Court.


Calcutta High Court
Manindralal Karmakar vs Akhil Kumar Chandra on 26 September, 2000
Equivalent citations: (2001) 1 CALLT 428 HC
Author: S Bhattacharjee
Bench: S N Bhattacharjee


JUDGMENT

S.N. Bhattacharjee, J.

1. In this revisional application under section 115 of the Code of Civil Procedure, order No. 173 dated 7.2.96 passed by learned Munsif, 2nd Court at Berhampore in O.S. No. 265 of 1980 whereby the petitioner’s application under section 5 of the Limitation Act accompanied with an application under section 148 and 151 CPC was dismissed.

2. The petitioner was the defendant in O.S. nO. 265 of 1980, filed by the respondent herein praying for eviction of the petitioner on the ground of default and other grounds. The petitioner got summons on 14.2.81 but could not enter appearance within one month in accordance with section 17(1) of West Bengal Premises Tenancy Act (the said ‘Act’). He filed an application under section 17(2A)(b) of the said Act coupled with an application under section 5 of the Limitation Act praying condonation of delay on the ground of illness. The learned trial Judge disbelieved his illness and dismissed the application. The High Court In revision did not Interfere with the order of the learned trial Judge. Thereafter the petitioner deposited the arrear rents reportedly by Incurring loans and also current rents under section 17(1) and thereafter filed two applications under section 148 and 151 CPC and another under section 5 of the Limitation Act praying for accepting the deposits as valid. The learned trial Judge disposed of the applications by his Impugned order in following terms.

“In the instant case, the defendant appeared before the Court after expiry of the statutory period of one month and applied for depositing the arrears of rent through Instalments. He did not take the opportunity of depositing the arrears of rent at a time due to his financial condition. He also applied for condoning the delay in depositing the rent under section 5 of the Limitation Act. The Court after full hearing of both the parties disbelieved the ground for delay in depositing the arrears of rent within the statutory period of one month and accordingly rejected the petition under section 5 of the Indian Limitation Act filed by the defdt. So, the Court rejected the prayer for condoning the delay in depositing the arrears of rent, whatever may be the mode of depositing the arrears of rent. The Hon’ble Calcutta High Court has also affirmed the said rejection order of this Court by a Civil Revision application filed by the defdt. So, at this stage, the defdt. petr. has got no scope for depositing the arrears of rent at a time in a belated stage also. The petition under section 5 of the Indian Limitation Act filed by the defdt. for condoning the delay in depositing the arrears of rent at a time under section 17(1)
of the W.B.P.T. Act is accordingly a res-judicate. Therefore, I have no alternative but to reject the petition under section 5 of the Indian Limitation Act filed by the defdt. On 9.11.91. Accordingly, the petition under section 148 of the CPC r/w section 151 CPC filed by the defdt. is also accordingly rejected. The arrears of rent together with interest deposited by the defdt. at his own risk in Court on 9.11.91 through chalan is hereby declared invalid.”

3. Against the aforesaid order the present revisional application has been filed.

4. It has been argued by Mr. Roy Chowdhury, the senior counsel, appearing for the petitioner that the learned Munslf, in exercise of his Jurisdiction acted illegally and with material irregularity in rejecting your petitioner’s application under section 5 of the Limitation Act without considering the sufficiency of the reasons assigned therein which prevented your petitioner from depositing the arrears of rent in compliance with the provisions of section 17(1) of the West Bengal Premises Tenancy Act.

5. The learned counsel for the opposite party while supporting the order of the learned trial Judge has argued that the revisional application more or less on the self-same ground is Incompetent and that the learned trial Judge was justified in not probing into the ground of illness which was disbelieved earlier by him.

6. Mr. Roy Chowdhury cited a decision In Rajendra Nath Kar v. Gangadas & Ors. wherein Their Lordships held,
“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 overriding 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. , Approved.”

7. This decision is not apposite to this case under consideration. In this case the learned Court below did not hold that the application under section 5 of the Limitation Act had no application. He did not reopen the grounds of illness as he disbelieved this ground in an earlier application under section 5 of the Limitation Act for condoning the delay in filing under section 17(2A)(b) of the said Act. On this ground the learned Court below held the defendant/petitioner had no scope for depositing the arrears of rent at a time In a belated stage and declared the deposit made by the defendant at his own risk with the Court on 9.11.91. Invalid.

8. The learned Court below, therefore, cannot be held to have acted with material irregularity in dismissing the application under section 5 of the
Limitation Act. It is true that the petitioner included the ground of poverty in the application under section 5 and such a ground has been held by the Special Bench of this High Court as one of extraordinary circumstances justifying the condonation of delay. But If such a ground was not pleaded in Initial application under section 5 of the Limitation Act it cannot be pleaded now as a second string to the bow. it has not been pleaded that the alleged poverty has been a new phenomenon after rejection of the revlsional application by the High Court. Such a ground, therefore, does not call for any fresh consideration by the learned Court below when the application under section 5 has been disbelieved and rejected. No. application under section 148 and 151 is maintainable as an alternative remedy. To cover the extraordinary circumstances causing delay in complying with the provisions of section 17 the statute has provided section 39 whereby the Limitation Act has been made applicable. Both the applications under section 5 as well as under section 151 or 148 CPC cannot be availed of by the defaulting tenant. Equity has no place in such a case where the tenant seeks to deposit the rent for the first time after a period of 10 years when the suit has reached the stage of final hearing.

I, therefore, do not find that the Impugned order calls for any Interference. The revisional application is, therefore, dismissed without any order as to costs. The learned Court below is directed to dispose of the suit as early as possible.

9. Application dismissed


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