Rajendera Nath Kar Vs. Gangadas &
Gangadhar Rathi & Ors [1979] INSC 5 (12 January 1979)
CHANDRACHUD, Y.V. ((CJ) 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]
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.
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