Indian Kanoon - Search engine for Indian Law

Calcutta High Court (Appellete Side)

The Calcutta Gujarati Education ... vs Sri Ajit Narayan Kapoor on 21 January, 2019

                                                   1



                      IN THE HIGH COURT AT CALCUTTA
21-01-2019

Civil Revisional Jurisdiction Subrata . C.O.No.175 of 2017 The Calcutta Gujarati Education Society

-vs-

Sri Ajit Narayan Kapoor Mr. Mainak Bose Mr. Suvodep Sen Mr. Megghnad Dutta Mr. Anjan Bhattacharya ...for the petitioner Mr. Manas Kumar Ghosh Ms. Susmita Dey (Bose) ...for the opposite party The issue raised by the landlord-plaintiff-revisionist in the instant application under Article 227 of the Constitution of India is whether the court seized of an ejectment suit and receiving an application from the defendant-tenant-opposite party for condonation of delay for making application under sections 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997, can entertain the same under section 5 of the Limitation Act.

There are conflicting views. The conflict arises by reason of a Division Bench judgment of this court in the Subrata Mukherjee & Anr. v. Bisakha Das & Anr. reported in 2012 (3) CHN 423. By the said judgment a Division Bench of this court had held that the time under sections 7(1) and 7(2) of the 1997 Act can be extended under section 5 of the Limitation Act.

This view has been followed by various single Benches of this court in the following cases:-

a) M/s. Sree Krishna Welding Works v. Amit Kumar Chamaria & Anr. reported in (2015) 4 WBLR (Cal) 348;

b) Mr. Anwar Hussin v. Raja Mohammed Amin & Ors. reported in 2017 OnLine Cal 15683: (2018) 1 ICC 361:

(2018) 1 CHN 458 : (2018) 1 Cal LJ 162; and

c) an unreported decision in the case of Land & Bricks & Entertainments Ltd. v. Sri Samir Kumar Mallick & Anr.

passed by this court on July 24, 2017 in CO No.1001 of 2015.

Learned counsel for the revisionist submits keeping 2 in view of the above decisions, time under sections 7(1) and 7(2) can be extended under section 5 of the Limitation Act.

This court prima facie finds that the matter has been extensively discussed and dealt with by the Hon'ble Supreme Court in pari materia provisions relating to the Rajasthan Premises (Control of Rent and Eviction) Act 1950.

The object and purposes of the 1997 Act under sections 7(1) and 7(2) is to give the last opportunity to the tenant to remedy, omissions in paying rent, if any. If he fails to avail of such remedy, the defence of the tenant to the instant suit is liable to be struck of. It was held as such by the Hon'ble Supreme court in the case of Nasriruddin & Ors. v. Sita Ram Agawal reported in (2003) 2 SCC 577, inter alia, at paragraph 40, that section 5 of the Limitation Act being an equitable provision and general law cannot be invoked to extend time under the Rajasthan Act to which in pari materia to those of the West Bengal Premises Tenancy Act, 1997.

A similar view has been taken by the Supreme Court in the context of Madhya Pradesh Accommodation Control Act, 1961 being the case of Ashok Kumar Mishra & Anr. v. Goverdhan Bhai & Anr. reported in (2018) 12 SCC 533, particularly at paragraph 14 thereof.

The same view was also followed in the case of Manjusre Chakraborty & Ors. v. M. Ahmed Bhuyan and Company & Anr. reported in (2018) 12 SCC 551 in the context of Assam Urban Areas Rent Control Act, 1972, particularly reference may be made to paragraphs 11 and 12 thereof.

Following the above view, the various co-ordinate Benches of this court have held that section 5 of the Limitation Act has no manner of application under sub- sections (1) and (2) of section 7 of the West Bengal Premises Tenancy Act, 1997, inter alia, the following cases:-

a) Mithun @ Akhtar Ali v. Sk. Aziz Haque reported in 2018 3 (3) CHN (Cal) 461;

b) Bina Devi Binani v. Ramsh Kumar Gupta (since deceased) by Kiran Gupta reported in 2016(5) CHN (Cal) 376;

c) Kalithody Sahaderan Thirumulpad v. Rahul Moitra reported in 2017 (2) CHN (Cal) 331;

d) an reported decision in the case of Sri Loknath Dhal v.

Smt. Gita Rani Roy passed by this court on October 15, 2015 in CO No.3571 of 2013; and

e) an reported decision in the case of Shashikant Vithaldas Mansata & Ors. v. Sri Prithvi Raj Duggar passed by this court on November 11, 2016 in CO No.4197 of 2015.

The law appears prima facie to be settled by the Supreme Court, but one cannot lose sight of the fact that the West Bengal Premises Tenancy Act, 1997 has not been specifically addressed by the Supreme Court.

The additional reason for passing the following order is the decision of the Division Bench of this High Court in the context of the 1997 Act in the case of Subrata Mukherjee (supra).

This court is of the view that the matter is required to be settled under the 1997 Act once for all by a suitable Bench of this court to be constituted by the Hon'ble Chief Justice.

In that view of the matter, let the matter be place before the Honb'le Acting Chief Justice for adjudicating the matter by a suitable Bench constituted by His Lordship to decide the following question of law.

"Does the view of the Division Bench of this court that section 5 of the Limitation Act can be applied to condone delay in making applications under sub-sections (1) and (2) of section 7 of the West Bengal Premises Tenancy Act, 1997, as held in the Subrata Mukherjee case (supra) survive in view of the decisions of the Hon'ble Supreme Court in the Nasiruddin case (supra), the Ashoke Kumar Mishra case (supra), Manjushree Chakraborty case (supra)."

Place the matter before the Hon'ble Acting Chief Justice accordingly.

[Rajasekhar Mantha, J]