PETITIONER:
RAJENDERA NATH KAR
Vs.
RESPONDENT:
GANGADAS & GANGADHAR RATHI & ORS.
DATE OF JUDGMENT12/01/1979
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
TULZAPURKAR, V.D.
SEN, A.P. (J)
CITATION:
1979 AIR 566 1979 SCR (2) 945
1979 SCC (1) 531
ACT:
West Bengal Premises Tenancy Act, 1956-Scope of
Sections 17A and 39 read with s. 5 of the Limitation Act,
1963-Condonation of delay does not mean extension of the
period of limitation prescribed under the Act.
HEADNOTE:
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 i.e. within the time but did not deposit the
interest due on the arrears as required by s. 17(i) of the
Act. The respondents therefore, filed an application under
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 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 s. 17A of the West Bengal Premises Tenancy
Act.
After the dismissal of the revision petition, the
appellant filed an application under the new 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. 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 s. 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 s. 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 s. 17A of the Act. Since the appellant did
not file his 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 limitation. But, by reason of
s. 39 of the Act, all other provisions of the Limitation Act
would be attracted including s. 5 of the latter Act. [948 D-
F]
In the instant case since the appellant did not file
his application under s. 17A of the Act, before the due
date, that is to say, before September 25, 1967, the
application under s. 17A is barred by limitations. However,
the application filed by him under s. 5 of the Limitation
Act for condonation of delay is maintainable. [948 A-B, G]
M/s. Pakarmal Gurudayal v. Sagarmal Bengani 76
C.W.N. 486 approved.
3. 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]
JUDGMENT:
CIVIL 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.
2924/68.
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 i.e. on February 5, 1963. On July 10, respondents
filed an application under 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 of rent, he
had not deposited the interest due on the arrears, as
required by section 17(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
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, 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 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 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 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 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 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 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.
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.
951