Papiya Sengupta & Ors vs Suvasis Ghosh

Biswajit Basu, J

The revisional application under Article 227 of the Constitution of India is at the instance of the defendants in a suit for eviction and is directed against Order No. 11 dated June 6, 2018 passed by the 1st Court of learned Civil Judge, (Junior Division), Chandannagar in Title Suit No. 240 of 2017.

The petitioners appeared in the suit on August 21, 2016 without the summons being served upon them.

The petitioner in the suit were pursuing for an order for service of the copy of the plaint upon them. The learned trial Judge had fixed January 24, 2018, a date for effecting such service.

The defendants in the meantime on December 05, 2017 applied for the certified copy of the plaint and filed an application under Section 7(1) of the West Bengal Premises Tenancy Act, 1997(hereinafter referred to as the 'said Act' in short) praying permission of the Court to deposit the rent for the month of November 2017 and also to deposit the current rent in the suit along with an application for condonation of delay in filing the said application.

The defendants had also filed an application under Section 7(2) of the said Act inviting the learned trial Judge to determine the arrears of rent, if any.

The learned trial Judge by the order impugned relying on the Single Bench decision of this Court in the case of MITHUN @ AKHTAR ALI Vs. SK. AZIZ HAQUE & ORS., reported in (2018) WBLR (Cal) 380 has held that the application under Section 5 of the Limitation Act 1963 is not applicable in respect of an application under Section 7(1) of the said Act and accordingly declared that the said applications are barred by limitation.

Mr. Mukherjee, learned advocate appearing on behalf of the petitioners submits that the notice of the learned trial Judge was not drawn to the decision of the Hon'ble Division Bench of this Court in the case SUBRATA MUKHERJEE Vs. BISAKHA DAS, reported in 2012 (4) ICC 826 wherein it has been held that Section 5 of the Limitation Act, 1963 can be resorted to for condonation of delay in filing an application under Section 7(1) of the said Act.

He further submits that the delay in filing the application under Section 7(1) of the said Act was caused due to the non-supply of the copy of the plaint. The learned trial Judge without considering the said application on merit has dismissed the same holding erroneously that the delay in filing such an application cannot be condoned.

Mr. Ayan Banerjee, learned counsel appearing on behalf of the landlord opposite party on the other hand submits that the Division Bench of this Court in the case of SUBRATA MUKHERJEE Vs. BISAKHA DAS(supra) has held that the provision of Section 5 of the Limitation Act, 1963 can be availed for condonation of delay in depositing the admitted arrear rent but in view of the recent pronouncement of the Hon'ble Supreme Court in the case of Bijay Kumar Singh & Ors. Vs. Amit Kumar Chamariya & Ors. passed in Civil Appeal No. 7849 of 2019, the position now is otherwise. The petitioners cannot resort to the said provision of the Limitation Act, 1963 for condonation of delay in depositing the amount of admitted arrear rent.

Heard learned counsel for the parties. Perused the materials on record.

The defendants admittedly sought for the permission of the Court to deposit the admitted amount of arrear rent by taking recourse of the provision of Section 7 (1) (a) of the said Act beyond the period of limitation prescribed under Section 7(1) (b) thereof.

The obvious question falls for consideration is whether the delay in depositing the admitted arrear rent can be condoned by taking recourse to Section 5 of the Limitation Act, 1963 or not.

The Division Bench of this Court in the case of SUBRATA MUKHERJEE Vs. BISAKHA DAS (supra) while dealing with the said issue at paragraph 32 has held as under:-

"Accordingly, for this reason, we hold that Section 5 of the Limitation Act will be applicable for the purpose of making deposit of admitted amount of arrears of rent, as mentioned in sub-sections (1) and (2) of Section 7 of the 1997 Act."

The Hon'ble Supreme Court since in the case of Bijay Kumar Singh & Ors. (supra) has held that the deposit of rent along with an application for determination of dispute is a pre-condition to avoid eviction on the ground of non-payment of arrears of rent and in view thereof, tenant will not be able to take recourse to Section 5 of the Limitation Act, 1963 as it is not an application alone which is required to be filed by the tenant but the tenant has to deposit admitted arrears of rent as well. In view of the said decision of the Hon'ble Supreme Court, the decision of SUBRATA MUKHERJEE Vs. BISAKHA DAS(supra) is of no assistance to the petitioners.

The order impugned is based on a decision which although was not holding the field on the date when the said order was passed but in view of the aforementioned judgment of the Hon'ble Supreme Court the said order cannot be interfered with.

C.O. 2306 of 2018 for the reasons discussed above is dismissed.

No order as to costs.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.