Octovious Tea and Industries Ltd. vs Monojlal Seal and Others

Prasenjit Mandal, J.—This application for review is at the instance of the defendant/tenant and is directed against the order dated January 5, 2011 passed by this Bench in C.O. No. 2964 of 2010. The application u/s 5 of the Limitation Act has been filed for condonation of delay in filing the said application for review. Since identical matter will have to be discussed for disposal of the two matters, they are taken together and they are disposed of by this common order.

For convenience, the application u/s 5 of the Limitation Act is discussed below.

The said revisional application was dismissed on January 5, 2011 and the application for review was filed on July 26, 2012 meaning thereby there was a delay of 524 days in preferring the application for review.

So far as the ground for delay is concerned, the defendant/tenant/applicant herein has contented that on getting summons of the suit for ejectment, the applicant entered appearance and filed applications under Sections 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997.

On the basis of the prayer u/s 7(1) of the 1997 Act, the defendant was permitted to deposit rent as prayed for in the petition at his risk and responsibility without prejudice to the rights and the contentions of the parties and thereafter, month by month within the scheduled date as per law. By the said application the petitioner prayed for depositing of arrears of rent with the Rent Controller and the current rent in the Court.

While dealing with the matters, the Court passed the order that the petitioner/applicant may do so at his risk and responsibility without prejudice to the rights and contentions of the parties. Thereafter, the application u/s 7(2) was disposed of in presence of both the sides. The defendant filed an application u/s 151 of the C.P.C. for reconsideration of the order. That application was rejected and so, the Civil Revision No. 2964 of 2010 was filed.

What I find from the materials on record that there was a clear direction for making deposit in Court and in spite of such orders, defendant did not deposit the current rent in Court in compliance with the order of the Court u/s 7(1)(c) of the 1997 Act. Accordingly, the application u/s 151 of the C.P.C. was rejected and the revisional application was also dismissed by this Bench.

Subsequently, at the time of hearing of the application u/s 7(3) of the 1997 Act, the applicant thought that he would review the order passed by this Bench. That is why this application has been preferred. The delay is for that reason.

It may be noted herein that the applicant filed another revision against the order passed on the application u/s 7(2) of the 1997 Act and the said revisional application is still pending in another Bench. The ground as stated above, in my view, cannot be considered convincing at all.

Mr. S.N. Mitra, learned Senior Advocate appearing for the applicant, has contended that a client cannot suffer for any fault on the part of his lawyer and as such, since the lawyer could not give proper advice, the deposit of arrears of rent had been made with the wrong forum.

He has pointed out the order dated April 11, 2008 to show that the order should have been in the manner directing the defendant to deposit the arrears of rent in Court. Since there was no clear direction, the defendant committed a mistake by depositing the arrears of rent with the Rent Controller.

He has also contended that if the prayer is allowed, no prejudice will be caused to the plaintiff at all so, a chance should be given by allowing the application for review.

In support of his contention Mr. Mitra has referred to the decision of N. Balakrishnan Vs. M. Krishnamurthy, and thus, he has submitted that the condonation of delay could be granted. Length of delay is no matter and the acceptability of the explanation is the only criterion. There may be some lapse on the pan of the litigant, but, that is not enough to turn down his plea and to shut the door against him.

He has also referred the decision of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, and thus, he has stated that the Court should take liberal approach in dealing with the application u/s 5 of the Limitation Act.

With due respect to Mr. Mitra, I find that the grounds of State for condonation of delay of 524 days are not convincing at all. It is nothing but afterthought when application u/s 7(3) of the Act was filed.

Mr. S.P. Roychowdhury, learned Advocate appearing for the opposite parties has referred to the decision of Parsion Devi and Others Vs. Sumitri Devi and Others, and thus, he has submitted that an application for review can be entertained only on the ground as mentioned in Order 47, Rule 1.

Moreover, as to the merits of the application under review, I find that by a liberal order dated January 5, 2011 this Bench disposed of C.O. No. 2964 of 2010 and that two was in presence of both the parties. Parties had the knowledge of passing of such judgment. In spite of that, they did not pray for review at the earlier stage, but, only at the stage of hearing the matter u/s 7(3) of the West Bengal Premises Tenancy Act. Now, the review is permissible if there is any apparent error on the face of the record or for any other reason.

In the instant case, in my view, there is no apparent error in the impugned order, or any other reasons for which the application could be entertained. An application for review in the guise of an appeal cannot be entertained according to the decision of Parsion Devi and Ors. (supra).

So, upon due consideration of the materials on record, I am of the view that the inordinate delay in filing the application for review cannot be condoned. So, the application u/s 5 of the Limitation Act fails to succeed and is, therefore, rejected.

However, there will be no order as to costs.

R.V.W. No. 183 of 2012:--

In consequence, the application for review is barred by limitation.

So, this application for review stands dismissed.

However, there will be no order as to costs. Urgent xerox certified copy, if applied for, be given to the learned Counsel for the petitioner upon compliance of necessary formalities.