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PETITIONER: RAJENDERA NATH KAR

       Vs.

RESPONDENT: GANGADAS & GANGADHAR RATHI & ORS.

DATE OF JUDGMENT12/01/1979

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: 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.

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    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]

JUDGMENT:      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

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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

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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

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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. 951