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HIGH COURT OF CALCUTTA
Sankar Prasad Mitra, Salil Kumar Datta
KOKARMAL GURUDAYAL - Appellant
Versus
SAGARMAL BENGANI - Respondent
Civil Revn Case 4025 Of 1970
Decided On : FEBRUARY 23, 1972
The Court held that the application under Section 17-B(1) of the West Bengal Premises Tenancy Act, 1956, was barred by limitation and could not be condoned under Section 5 of the Limitation Act, 1908. The Court interpreted the relevant provisions of the Act and Ordinances and concluded that the period of sixty days for making the application commenced from the date of commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1967, which was August 26, 1967. The Court rejected the argument that the period of limitation was impossible to comply with, holding that the legislature intended to give relief to tenants retrospectively and that the provisions of Section 17-B were not rendered impossible by the retrospective effect of the legislation. The Court also held that the reference to sixty days in Section 17-B(1) was a period of limitation and that Section 5 of the Limitation Act applied to the application. The Court found that the petitioner had not shown sufficient cause for condoning the delay in making the application and that the petitioner's ignorance of its rights under Section 17-B was not a sufficient excuse for the delay.
Fact of the Case:
The petitioner, a tenant, filed an application under Section 17-B(1) of the West Bengal Premises Tenancy Act, 1956, to set aside a decree for the recovery of possession of a premises. The application was filed more than sixty days after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1967, which introduced Section 17-B into the Act. The petitioner argued that the application was not barred by limitation because the period of sixty days was impossible to comply with, as the Ordinance was not promulgated until after the decree was passed. The petitioner also argued that Section 5 of the Limitation Act, 1908, which allows for condonation of delay in making an application, applied to the application. The opposite party argued that the application was barred by limitation and that Section 5 of the Limitation Act did not apply.
Finding of the Court:
The Court held that the application was barred by limitation and that Section 5 of the Limitation Act did not apply. The Court found that the period of sixty days for making the application commenced from the date of commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1967, which was August 26, 1967. The Court rejected the argument that the period of limitation was impossible to comply with, holding that the legislature intended to give relief to tenants retrospectively and that the provisions of Section 17-B were not rendered impossible by the retrospective effect of the legislation. The Court also held that the reference to sixty days in Section 17-B(1) was a period of limitation and that Section 5 of the Limitation Act applied to the application. The Court found that the petitioner had not shown sufficient cause for condoning the delay in making the application and that the petitioner's ignorance of its rights under Section 17-B was not a sufficient excuse for the delay.
Issues: 1. Whether the application under Section 17-B(1) of the West Bengal Premises Tenancy Act, 1956, was barred by limitation? 2. Whether Section 5 of the Limitation Act, 1908, applied to the application?
Ratio Decidendi: 1. The Court held that the application was barred by limitation because it was not filed within sixty days of the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1967, which introduced Section 17-B into the Act. The Court rejected the argument that the period of limitation was impossible to comply with, holding that the legislature intended to give relief to tenants retrospectively and that the provisions of Section 17-B were not rendered impossible by the retrospective effect of the legislation. 2. The Court held that Section 5 of the Limitation Act, 1908, applied to the application. The Court found that the reference to sixty days in Section 17-B(1) was a period of limitation and that Section 5 of the Limitation Act applied to the application. The Court found that the petitioner had not shown sufficient cause for condoning the delay in making the application and that the petitioner's ignorance of its rights under Section 17-B was not a sufficient excuse for the delay.
Final Decision: The Court discharged the Rule and vacated the interim order. There was no order as to costs.
( 1 ) THIS Rule is directed against an order of the Sixth Subordinate Judge, Alipore, being Order No. 56 of the 10th November, 1970, in Title Suit No. 3 of 1964 (Sagarmal Bengani v. Pokarmal Gurudayal) rejecting the defendant's application under Section 17-B (1) of the West Bengal Premises Tenancy Act, 1956 and another application under Section 5 of the Limitation Act. The facts briefly are as follows: on January 21, 1964, Sagarmal Bengani filed Title Suit No. 3 of 1964 before the Subordinate Judge, Sixth Court, Alipore against Messrs. Pokarmal Gurdayal for ejectment of the defendant from a godown at premises No. P-3, Brojodayal Saha Boad, Cossipore, on the ground of default in payment of rent since April, 1963. On the 27th March, 1965, the Court passed an order under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, striking out the tenant's defence against delivery of possession. On May 5, 1965, the tenant applied for relief against forfeiture under Section 114 of the Transfer of Property Act. On May 20, 1965, the application for relief against forfeiture was rejected. On June 26, 1965, the suit was dismissed; but the landlord preferred an appeal to which we would revert a little later.
( 2 ) ON the August 24, 1965, West Bengal Ordinance No. VI of 1965 was promulgated. Section 17-A (1) of this Ordinance was as follows:--"where any decree or order for the recovery of possession of any premises has been made in a suit or proceeding in which the defence against delivery of possession was struck out by an order under Sub-section (3) of Section 17, but the possession of such premises has not been recovered from the tenant by the execution of such decree or order, the tenant may make an application to the Court which made such decree or order within a period of sixty days from the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, ] 965, for setting aside such decree or order. "
( 3 ) THIS Ordinance was promulgated by the Governor of West Bengal on August 21, 19g3 and was published in the Calcutta Gazette Extraordinary on the August 24, 1965. The provisions of this Ordinance were also enacted by the West Bengal Legislature by the Act 29 of 1965. Section 17-A of that Act ran thus:--"17-A. Power of Court to set aside decree or order for ejectment in certain cases. (1) Where any decree or order for the recovery of possession of any premises has been made in a suit or proceeding in which the defence against delivery of possession was struck out by an order under subsection (3) of Section 17, but the possession of such premises has not been recovered from the tenant by the execution of such decree or order, the tenant may make an application to the Court which made such decree or order within a period of sixty days from the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965, for setting aside such decree or order. . . . . . . . ".
( 4 ) WE are not directly concerned in this Bule either with the Ordinance of 1965 or with the Act of 1965; but we have quoted the above provisions merely to show that the legislature has consistently used the same form of expression in all the subsequent enactments we shall refer to later.
( 5 ) THE landlord, in the instant case, preferred an appeal against the dismissal of the suit. The appeal was mark- ed as Title Appeal No. 1091 of 1965. This Title Appeal was disposed of on November 17, 1965. The Additional District Judge, Seventh Court, Alipore, reversed the judgment of the Trial Court and passed an ejectment decree in favour of the landlord. In 1966, the tenant filed a second. appeal being Second Appeal No. 1053 of 1966 in this Court against the judgment and decree of the Appellate Court- On April 20, 1966, a Division Bench of this Court in Civil Rule No. 529 (8) of 1966 directed the tenant to deposit Bs. 11,400. 00 on or before the 1st May, 1966, or to continue to deposit Bs. 450. 00 every month. According to the ten
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