Calcutta High Court (Appellete Side)
Bahadur Singh Kathotia vs Smt. Purabi Basu on 17 February, 2023
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IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Biswaroop Chowdhury
C.O. 2575 of 2022
Bahadur Singh Kathotia
VERSUS
Smt. Purabi Basu
For the petitioner: Mr. Partha Pratim Roy, Adv.
Mr. Debdas Khanna, Adv.
Mr. Dyutiman Banerjee
for the opposite parties: Mr. Arnab Nandi, Adv.
Mr. Arka Prabha Chaudhury, Adv.
Last Heard on: February 03, 2023
Judgment on: February 17, 2023
Biswaroop Chowdhury.,:
The petitioner before this Court is a defendant in a Suit for
Eviction and is aggrieved by the Order dated 26-07-2022 passed by
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Learned Civil Judge Junior Division 3rd Additional Court Alipore
South-24 Parganas in Ejectment Suit 276 of 2019.
The case of the petitioner/defendant may be summed up
thus:-
1. The opposite party as plaintiff filed a suit for eviction recovery
of Khas Possession and mesne profit against the
defendant/petitioner before the Learned Civil Judge (Junior
Division) 3rd Additional Court at Alipore South 24 Parganas.
2. The petitioner received the summons in the month of
December 2019, and entered appearance in the suit on 30-03-
2021 and filed application under Section 7(1) of the West
Bengal premises Tenancy Act 1997.
3. The petitioner apart from filing application under Section 7(1)
of the premises Tenancy Act 1997 also filed application under
Section 7(2) of the West Bengal Premises Tenancy on 22-07-
2021.
4. The applications filed by the petitioner under Section 7(1) and
7(2) of the West Bengal Premises Tenancy Act was contested
by opposite party/plaintiff by filing written objection.
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5. By Order dated 26-07-2022 the Learned Trial Court rejected
the petitions under Section 7(1) and Section 7(2) of the West
Bengal Premises Tenancy Act 1997.
The petitioner being aggrieved by the Order passed by the
Learned Trial Judge has come up with this Revisional Application.
It is the contention of the petitioner that the Learned Trial
Court acted illegally in not adjudicating the application under
Section 7(2) of the West Bengal Premises Tenancy Act for non-
compliance with application under Section 7(1) of the West Bengal
Premises Tenancy Act by overlooking the reasons assigned by the
petitioner in the application under Order 9 Rule 7 of the Code of
Civil Procedure. It is also contended that the Learned Trial Court
acted illegally in deciding the applications in isolation of the
application under Order 9 Rule 7 of the Code of Civil Procedure.
Heard Learned Advocate for the petitioner and Learned
Advocate for the opposite party. Perused the petition filed and
materials on record.
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Learned Advocate for the Petitioner submits that the petitioner
could not appear on the date fixed and as the petitioner is suffering
from blood cancer and due to the ongoing pandemic could not
contest the Suit but he appeared on 30/03/2021 and filed written
statement, as well as an application under Order IX Rule 7 of the
Code of Civil Procedure Learned Advocate further submits that
although the petitioner filed petition under Section 7(1) of West
Bengal Premises Tenancy Act 1997 within one month from the date
of his appearance, the Learned Trial Court erred in rejecting the
application on the ground of limitation. Learned Advocate further
submits that his client is suffering from blood cancer and due on
ongoing pandemic he was unable to attend Court but on the date of
appearance his client has filed written statement and thereafter the
petitions under Section 7(1) and 7(2) of the West Bengal Premises
Tenancy Act 1997. Learned Advocate submits that as his client
made application under Section 7(1) and 7(2) of the West Bengal
Premises Tenancy Act 1997 within one month from date of
appearance his applications ought not to have been rejected on the
ground of limitation.
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Learned Advocate for the opposite party submits that as the
petitioner has admitted to have received summons in the month of
December 2019, it was obligatory on his part to appear within one
month from date of receiving summons, and deposit rent and file
the applications under Section 7(1) and 7(2) of the West Bengal
Premises Tenancy Act 1997. Learned Advocate for the opposite
party relies upon the following Judicial decisions:
Bijoy Kumar Singh and others.
Vs
Amit Kumar Chamariya and others
Reported in 2020 (1) Indian Civil Cases 664 (S.C)
Smt Papiya Sengupta and ors.
Vs
Sri Suvasis Ghosh
Reported in 2020(1) Indian Civil Cases 980 (Cal).
Upon perusing the Order passed by the Learned Trial Judge it
appears that the Learned Judge while disposing the applications
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under Section 7(1) and 7(2) of the West Bengal Premises Tenancy
Act 1997 observed and directed as follows:
'In BIJAY KUMAR SINGH AND OTHERS VS AMIT KUMAR
CHAMARIYA AND ANOTHER (2019) 10 Supreme Court cases 660 it
has been held that the tenant is obliged to apply within time as
specified in 7(1) of the West Bengal Promises Tenancy Act 1997 i.e.
within one month of the receipt of summons or within one month of
appearance before the Court to deposit with the Civil Judge the
amount admitted by him to be due. 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.
Therefore tenant will not be able to take recourse to Section 5 of the
Limitation Act 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.
So this Court is of the opinion that the summon has been
received by the defendant in month of November 2019, so as per the
statute one month will be counted from the date of receiving of
summons and not from the date of his appearance i.e. 30-03-2021.
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As such the petitions 7(1) and 7(2) of the West Bengal Premises
Tenancy Act 1997 are not maintainable in the eye of law.
Hence the petition under Section 7(1) and 7(2) of the West
Bengal Premises Tenancy Act is rejected and disposed of on
contest.'
The Hon'ble Supreme Court in the case of Bijay Kumar Singh
(supra) observed as follows:
'Sub Section (3) provides for consequences of non-payment of
rent i.e. striking off the defence against the delivery of the
possession and to proceed with the hearing of the suit. Such
provision is materially different from sub sections (2A) and (2B)
which was being examined by this Court in B.P. Khemka. Sub
Sections (2A) and (2B) of Section 17 of 1956 Act confer unfettered
power on the Court to extend the period of deposit of rent, which is
circumscribed by the proviso to Section 7(2) and Sub-Section 3 of
Section 7 of the Act. Therefore, the provisions of Sub Section (2) are
mandatory and required to be scrupulously followed by the tenant,
if the tenant has to avoid the eviction on account of non-payment of
arrears of rent under Section 6 of the Act. There is an outer limit for
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extension of time to deposit of arrears of rent in terms of the proviso
to sub section (2) of Section 7 of the Act. There is an outer limit for
extension of time to deposit of arrears of rent in terms of the proviso
to sub-Section - 2 of Section 7 of the Act. The consequences flowing
from non-deposit of rent are contemplated under sub Section (3) of
Section 7 of the Act. Therefore, if the tenant fails to deposit
admitted arrears of rent within one month of receipt of summons or
within one month of appearance without summons and also fails to
make an application for determination of the disputed amount of
rate of rent and the period of arrears and the subsequent non-
payment on determining of the arrears of rent, will entail the
eviction of the tenant. Section 7 of the Act provides for a complete
mechanism for avoiding eviction on the ground of arrears of rent,
provided that the tenant takes steps as contemplated under sub
Section (2) of Section 7 of the Act and deposits the arrears of rent
on determination of the disputed amount. 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. In
view thereof, tenant will not be able to take recourse to Section 5 of
the Limitation Act as it is not an application alone which is required
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to be filed by the tenant but the tenant has to deposit admitted
arrears of rent as well.'
The Hon'ble Supreme Court further observed as follows:
'In another Three Judge Bench Judgment reported as
Nasiruddin and Ors vs Sita Ram Agarwal reported in (2003) 2 SCC
P-577 it was held that in terms of clause (a) of Sub-Section (2A) of
Section 17 of the 1956 Act the requisite power to extend the time
for deposit of rent on an application made by the tenant is without
any restriction. It was further held that the question of application
of Section 5 of the Limitation Act 1963 would arise if the appellant
or the applicant satisfies the Court that he had sufficient cause for
not making the appeal or application within such period. Section
13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act
1950 [for short the 'Rajasthan Act'] provides that the tenant shall
on the first date of hearing or on or before such date, shall deposit
in Court or pay to the Landlord in Court from the date of such
determination the amount so determined or within such further
time not exceeding three months as may be extended by the Court.
Thus Sub-Section (4) itself provides for limitation of a specific
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period within which the deposit has to be made, which cannot
exceed three months as extended by the Court. Thus Sub-Section
(4) itself provides for limitation of a specific period within which the
deposit has to be made which cannot exceed three months as
extended by this Court. The deposit by the tenant within 15 days is
not an application within the meaning of Section 5 of the Limitation
Act 1963. Since the deposit does not require any application
therefore the provisions of Section 5 cannot be extended where the
default takes place in complying with an Order under Sub-Section 4
of Section 13 of the Act. It is thus contended that provisions of the
Rajasthan Act are close to the language of Section 7 of the Act.
Therefore the Limitation Act is not applicable to seek condonation of
delay in filing an application under Section 7(2) of the Act.'
In the case of Smt Papiya Sengupta and ors (supra) a Learned
Single Judge of this Court observed as follows:
'9' 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
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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
pronouncements of the Hon'ble Supreme Court in the case of Bijay
Kumar Singh and ors Vs Amit Kumar Chamariya and ors passed in
Civil Appeal No. 7849 of2019 : [2019 (2) RLR (S.C) 506 : 2020 (1)
ICC (S.C) 664] 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."
In the case of Parivar Enclave Pvt. Ltd. V Samit
Dutta 2016 (2) CLJ (Cal) 641 a Learned Judge of this Court
observed as follows:
'Admittedly as per statute in a suit for eviction of a tenant
under the provision of the West Bengal Premises Tenancy Act 1997
the application under Section 7(2) of the Act has to be filed before
the Learned Trial Court within one month from the date of
appearance of the tenant to decide the issue regarding relationship
of Landlord and tenant, rate of rent defaulter/arrear of rent to be
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paid by the tenant supported by deposit of admitted amount
equivalent to rent within one month but it was not filed within the
stipulated time. There is a provision under Section 40 of the Act,
which was enacted with a view to protect the interest of the parties
who were prevented by sufficient cause for taking recourse of law
within the stipulated time but the defendant/opposite party dared
to take recourse of such section so that his interest in protected.'
In the case of Amal Boral Vs Debasis Paul (2019) 3 Cal LT. 659
(HC) a Learned Judge of this Court observed as follows:
"When it is the specific case of the petitioner that for being ill
advised by Learned conducting advocate who was subsequently
changed with the appointment of the new advocate by the
petitioner, the defendants should not be made to suffer and
penalise for advocates default though admittedly after the disposal
of application under Section 7(1) and 7(2) of the Act, the
petitioner/tenant sought for an adjournment intending to file an
application under Section 5 of the Limitation Act for condonation of
delay but it would be sufficient enough to reveal the real intention
of the petitioner/tenant to have the protection of the rent legislation
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after complying with the procedure prescribed in the Rent Act itself
particularly in a case of this nature when there is nothing to reveal
wilful failure deliberate default or volitional non-performance on the
part of the petitioner/tenant so as to deposit the arrears of rent
together with monthly rent in Court. Upon considering the rival
submissions of the parties the Court is of the view that the justice
would be best sub-served, if the petitioner be given an opportunity
to file an application under Section 5 of the Limitation Act for
condonation for delay in support of the application already filed
under Section 7(1) and 7(2) of the West Bengal Premises Act 1997."
Now upon perusal of the observation made by the Hon'ble
Supreme Court in the matter of Bijay Kumar Singh V Amit Kumar
Chamariya (supra) that deposit of rent does not require any
application and deposit of rent under Section 7(1) is not merely an
application but an obligation to be complied this Court with due
respect to the Hon'ble Supreme Court this Court is of the view that
some factual aspects of the procedure of Sub-ordinate Civil Courts
of the State was not argued before the Hon'ble Apex Court and thus
there was no scope for the Hon'ble Apex Court to consider the same
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and arrive at a decision. In the sub-ordinate Civil Courts once a
summon is issued to the defendant/tenant, the said tenant is
required to appear on the date fixed and file written statement to
defend the case along with other necessary applications. With
regard to the compliance of the provision contained in Section 7(1)
of the West Bengal Premises Tenancy Act 1997 to deposit in Court
all arrear of rent, calculated at the rate at which it was last paid
and upto the end of the month previous to that in which the
payment is made together with interest at the rate of ten per-cent
per annum, the tenant/defendant is required to appear within one
month from date of receipt of summons, and file the application
under Section 7(1) of the West Bengal Premises Tenancy Act 1997
for necessary leave/order of the Court. Without Order of the Court
the defendant/tenant cannot make the deposit in department. Thus
with the Order/Leave of the Court a tenant/defendant can deposit
the amount of arrear rent along with interest to the credit of
plaintiff in the Suit concerned. However before passing any Order
by Court in the petition under Section 7(1) of the West Bengal
Premises Tenancy Act 1997 a copy of the said petition is required to
be served upon the plaintiff/Landlord and plaintiff Landlord is to be
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given an opportunity of being heard. Upon hearing the parties
Courts pass Orders under Section 7(1) of the West Bengal Premises
Tenancy Act 1997. But when the tenant disputes the allegation of
Landlord made in the plaint regarding rent due or the landlord
disputes the contention of tenant in application under Section 7(1)
of the West Bengal Premises Tenancy Act 1997 the said dispute is
to be decided in accordance with Section 7(2) of the West Bengal
Premises Tenancy Act 1997. The tenant in the petition under
Section 7(2) of the West Bengal Premises Act 1997 has to obtain
Leave/Order from Court to pay the amount which he admits and on
the basis of Leave/Order of the Court the tenant can deposit the
amount admitted by him. Upon payment of admitted amount
dispute can be decided. Thus upon considering the procedure
followed by Civil Courts in disposing applications under Section 7(1)
and 7(2) of the West Bengal Premises Tenancy Act 1997 which are
necessary for a tenant/defendant to make deposit under sub-
Section 1 and 2 of Section 7 of the West Bengal Premises Tenancy
Act 1997 there is no other scope but to infer that hearing of
applications under Section 7(1) and 7(2) of the West Bengal
Premises Tenancy Act 1997 are proceedings under the said Act.
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Now in Order to decide as to whether Limitation Act 1963 Act
applies to all proceedings under the West Bengal Premises Act it is
necessary to consider the provision contained in Section 40 of the
West Bengal Premises Tenancy Act 1997.
Section 40 of the West Bengal Premises Tenancy Act 1997
provides as follows:
Section 40- 'Subject to the provisions of this Act relating to
limitation the provisions of the Limitation Act 1963 (36 of 1963)
shall apply to proceedings and appeals under this Act.'
As under the present West Bengal Premises Tenancy Act 1997
Limitation Act 1963 applies to proceedings and appeals, hearing of
applications under Section 7(1) and 7(2) of the West Bengal
Premises Tenancy Act 1997 is considered as proceedings and as
there is no express provision to condone the delay in institution of
the proceedings under the said sections provided by the said
Statute, Limitation Act 1963 comes into operation by virtue of
Section 40 of the statute. Incorporation of Section 40 in the statute
indicates the intention of the legislature. As the procedure followed
by Civil Courts in our State while disposing application under
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Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act and
the provision of Section 40 of the West Bengal Premises Tenancy
Act 1997 was not, submitted before the Hon'ble Supreme Court in
the case of Bijay Singh and ors (supra) there was no scope for the
Hon'ble Supreme Court to make any observation on the point of
limitation in proceedings under West Bengal Premises Tenancy Act
1997.
As certain arguments were not advanced before the Hon'ble
Supreme Court in the matter of Bijay Singh and ors (supra) it is
necessary to decide whether doctrine of sub-silencio applies in this
issue.
In the case of Debendra Nath Mondal Vs Ratan Kumar Das
reported in 2008(1) CLJ Cal. P-912 a Division Bench of this Court
observed as follows:
'It is settled legal position applying the principle of doctrine of
sub-silencio that a decision is not an authority for what it had not
decided on a point, which has not been argued. Reliance may be
placed to the judgment passed in the case M/s. Goodyear India Ltd.
V. State of Haryana & Anr., reported in AIR 1990 SC 781, Mittal
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Engineering Works (P) Ltd. Vs collector of Central Excise Meerat
reported in 1997 (1) SCC - P 203 Municipal Corporation of Delhi v.
Gurnam Kaur, reported in 1989 (1) SCC P-101 Prof P.J.Fitzgeralt in
the Book 'Summons on Jurisprudence' 12th Edition at page 153 has
explained the concept of sub-silencio to this effect: "a decision
passes sub-silencio in the technical sense that has come to be
attached to that phrase when the particular point of law involved in
the decision is not perceived by the Court or present in its mind." It
is also a settled legal position that "a decision is an authority for
what it decides and not that everything said therein constitute a
precedent........... a decision of the Court takes its colour from the
questions involved in the case from which it was rendered."
Reliance may be placed to the Constitution Bench judgment passed
in the case State of Punjab v. Baldev Singh, reported in 1999(6)
SCC 172. It has been held by the Apex Court in the case
Commissioner of Income Tax v. Sun Engineering Works (P) Ltd.,
reported in 1992 (4) SCC 363 at para 29 "judgment must be read as
a whole and the observation from the judgment have to be
considered in the light of the questions which were before the
Court. A decision takes its colour from the questions involved-Court
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must carefully try to ascertain the true principle laid down by
decision and not to pick out words and sentence from the judgment
divorced from the context of the questions under consideration by
the Court, to support their reasonings." Further, it is settled legal
position that "one additional and different fact can make a world of
difference between conclusion in two cases even when the same
principles are applied in each case to similar facts." Reliance may
be placed to the judgement passed in the case The Regional
Manager & Ors. V. Pawan Kumar Dubey, reported in AIR 1976 SC
1766, a three Judges' Bench judgment, which has been referred to
in the case Chandra Prakash Shahi v. State of U.P. & Ors., reported
in AIR 2000 SC 1706.'
Now with regard to the period of one month provided for
payment of arrears of rent as per Section 7(1) of the West Bengal
Premises Tenancy Act 1997 which is one month from the date of
receipt of summons undoubtedly the said payment is to be made
within the said period but the reality about the procedures followed
by sub-ordinate Courts of Civil Judicature cannot be ignored. When
summons are issued by Civil Courts in any Suit whether Title Suit
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Money Suit or Suit under West Bengal Premises Tenancy Act 1997,
a date is fixed in the said summons for the defendant to appear and
file statement in support of his defence. The date of appearance in
all suits are fixed as the case diary of the Courts permit. Although
Section 7(1) of the West Bengal Premises Tenancy Act 1997
provides one month time for payment or deposit of arrear rent from
the date of receipt of summons but when date of appearance in a
suit is fixed on a particular date as per summons the
defendant/tenant will be of the impression that he is required to
appear on said day and the defendant tenant concerned will take
steps to appear on the said day by engaging an advocate. Thus it is
not unnatural that the date of appearance as mentioned in
summons may be after a period of one month from the date of
receipt of summons. An ordinary man will follow the summons
regarding appearance in Court and taking necessary steps as per
advice of Advocate. It is only when the tenant/defendant concerned
has knowledge about the provisions of Premises Tenancy Act will
take steps to deposit rent within one month of receipt of summons.
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Now upon receipt of the summons when a defendant/tenant
knows that he will be required to appear in Court he will take steps
to engage an Advocate on the date fixed or few days before by
searching for an Advocate in Court unless he is able to contact with
an Advocate in his locality. Moreover a defendant/tenant who is
poor will have no other alternative but to approach Legal Service
Authority for providing an Advocate to defend his case and
engagement of Advocate by Legal Service Authority may require
time as necessary procedure is required to be complied. When
Learned Advocates seek time on the dates fixed for appearance and
unable to file petitions under Section 7(1) or 7(2) of the West Bengal
Premises Tenancy Act 1997, the litigant tenant should not suffer
due to the laches of Learned Advocate.
It has been held in different judicial pronouncements that
Rent control Acts are remedial measures conceived for the
protection and welfare of tenants, to guard against unreasonable
eviction and collection of excessive rents.
In the case of Jivanlal and Co. V Manot and Co. Reported in
64CWN-932 this Court held that the object of West Bengal Act is to
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protect tenants as long as possible and to eject them when it is not
otherwise possible.
The object Section 7 of the West Bengal Premises Tenancy Act
1997 is to grant benefit of protection to a tenant against eviction on
compliance of certain conditions as provided in the said Section,
thus reasonable opportunity should be given to the tenant to
comply such condition and to deprive him when he fails to avail the
same in spite of getting the said opportunity.
In the case of Madhav Rao Seindia V Union of India reported
in AIR-1971 S.C. 530 at p-576 the Hon'ble Supreme Court observed
as follows:
"The Court will interpret a statute as far as possible agreeable
to justice and reason and that in case of two or more
interpretations, one which is more reasonable and just will be
adopted for there is always a presumption against the law-maker
intending injustice and unreason------. A provision in a statute will
not be construed to defeat its manifest purpose and general values
which animate its structure."
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In the case of Dy. Custodian V Offl. Receiver reported in AIR-
1965 S.C. the Hon'ble Supreme Court observed as follows:
'If it appears that the obvious aim and object of the statutory
provisions would be frustrated by accepting the literal construction
suggested by the respondent then it may be open to the Court to
enquire whether an alternative construction which would serve the purpose of achieving the aim and object of the Act is reasonable possible.' Upon hearing the Learned Advocates and considering the facts of the case and the decision of the Hon'ble Supreme Court in Bijay Kumar Singh (supra) and the decision of this Court is Smt. Papiya Sengupta (supra) with due respect to the Hon'ble Supreme Court, and the Learned Judge delivering judgement in the case Smt. Papiya Sengupta (supra) this Court is of the view that the decision of the Hon'ble Supreme Court in the case of Bijay Kumar Singh (supra) is the law to be followed in disposing applications under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act 1997 and deviation from the same should be in very exceptional 24 circumstances. The Court disposing the said applications may condone the delay in the following circumstances.
Firstly where the date of appearance of defendant as fixed in the summons is such that it exceeds one month from the date of receipt of summons by the defendant/tenant.
Secondly where the defendant/tenant is unable to appear on the date fixed in the summons due to unavoidable circumstances.
Thirdly where in the opinion of the Court refusal to condone delay will result in miscarriage of Justice.
Upon hearing the Learned Advocates and considering the facts of the case this Court is of the view that as the petitioner/defendant is 72 years old, suffering from blood cancer and appeared in Court on March 31, 2021 during pandemic period the petitioner should be granted one more opportunity to get the petitions under 7(1) and 7(2) of the West Bengal Premises Tenancy Act 1997 disposed by condoning delays.
In the facts and circumstances discussed above this Revisional Application stands allowed. The Order date 26-07-2022 25 passed by Learned Civil Judge Junior Division 3rd Additional Court Alipore South - 24 Parganas in Ejectment Suit 276 of 2019 is set aside. The delay is filing the petition under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act 1997 is condoned. The matter is remitted back to the Trial Court to dispose the petitions filed under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act 1997 in accordance with law.
Biswaroop Chowdhury.,J