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HIGH COURT OF CALCUTTA
P. N. MUKHERJEE, RENUPADA MUKHERJEE
JAGANNATH UPADHYAY - Appellant
Versus
AMARENDRA NATH BANERJEE - Respondent
Letters Patent Appeal 5 Of 1956
Decided On : DECEMBER 18, 1956
Section 12 of the Indian Limitation Act - Extension of Time for Filing Letters Patent Appeal - Summary
Fact of the Case:
The appellant filed a Letters Patent appeal beyond the prescribed period of sixty days, but argued that there was sufficient cause for the requisite extension of time due to the time taken for obtaining a certified copy of the judgment appealed from.
Finding of the Court:
The Court found that the appellant was entitled to deduction or exclusion of the time required for obtaining the copy of the judgment, and that Section 12 of the Limitation Act would apply to save the appeal from the bar of limitation. The Court also held that the Rules of the Court provided for extension of time in the matter of filing Letters Patent appeals, and the appellant's case would come within the scope and benefit of that provision.
Issues: The key issue was whether the appellant was entitled to an extension of time for filing the Letters Patent appeal, and whether Section 12 of the Limitation Act applied to the case.
Ratio Decidendi: The Court interpreted the relevant Rules and legal provisions to conclude that the appellant was entitled to an extension of time and that Section 12 of the Limitation Act would apply, thereby saving the appeal from being time-barred.
Final Decision: The appeal succeeded in part, with the decree for ejectment in favor of the respondents being maintained, subject to the payment of compensation, and the decree for rents, damages, and interest being upheld with a reduction in the decree for rent to three years. The parties were directed to bear their own costs in the appeal.
( 1 ) THIS is a Letters Patent appeal from the judgment of our learned brother Guha J.
( 2 ) THE appeal is by the defendant and it arises out of a suit for ejectment and for recovery of arrears of rent and damages.
( 3 ) ACCORDING to the plaintiffs respondents, the defendant took settlement of the suit property under a lease which was evidenced by a kabuliyat, dated 24-7-1937, corresponding to Sravan 8. 1344 B. S. The period of the lease, as given in the kabuliyat, was seven years and the lease purported to run from Sravan 1344 B. S. , expiring, therefore, with the end of Ashar, 1351 B. S. The defendant, however, continued in occupation and, as the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940 (Bengal Act IX of 1940) was in force from about May 1940 right up to about the same month 1949, when it was repealed and replaced by the permanent Act, the West Bengal Non-Agricultural Tenancy Act, 1949 (West Bengal Act XX of 1949 ). the plaintiffs could not take steps for ejectment of the defendant.
( 4 ) THE present suit was instituted on 7-7-1950, after service of a notice to quit, expiring with, the month of Chaitra 1356 B. S. The notice appears to have been served on 15-10-1949, corresponding to 28th Aswin 1356 B. S.
( 5 ) THE suit was decreed by the trial court except with regard to a small amount which was deducted from the plaintiffs' claim for rent on account of certain payments, made by the defendant, towards municipal taxes of the suit property, but the decree for ejectment was made subject to payment of compensation by the plaintiffs to the defendant under the proviso to Clause (iii) of Section 9 (1) of the Act.
( 6 ) THE lower appellate court affirmed the trial court's decision with only this modification that the deduction of the amount of taxes, of which the defendant was given credit against the plaintiffs' claim by the trial Court, was disallowed and the plaintiffs' claim for rent was decreed in full. The trial court and the lower appellate court both granted the plaintiffs interest at the rate of 12 1/2 per cent per annum.
( 7 ) ON second appeal to this Court, the decree of the lower appellate court was maintained subject only to a small variation in the rate of interest which was reduced from 12 1/2 per cent per annum to 6 1/4 per cent per annum.
( 8 ) THE defence to the plaintiffs' claim for ejectment was really of two-fold character. In the first place, absolute protection was claimed under the West Bengal Non-Agricultural Tenancy Act. The other defence under this head related to the question of validity and sufficiency of the notice to quit and of its service. The claim for arrears of rent was resisted mainly on the ground of limitation as to a part of the same, the plaintiffs claim being for six years' rent and the defence contending that the plaintiffs were not entitled under the law to get rent for more than three years.
( 9 ) GUHA, J. overruled all the above defences and decreed the plaintiffs' suit, reducing, as we have said above, only their claim for interest from 12 1/2 per cent per annum to 6 1/4 percent per annum. The propriety of this decision is challenged in this Letters Patent appeal.
( 10 ) THE defence under the West Bengal Non-Agricultural Tenancy Act cannot obviously succeed as the defendant's attempt to bring this case under Section 7 of the said Act has no substance. The tenancy admittedly commenced in 1937. The suit was instituted in 1950. Of the intervening years, the several years from about the middle of 1940 right UP to about the middle of 1949 would have to be excluded from computation under Section 7 of the West Bengal Non-Agricultural Tenancy Act by virtue of the express provisions of Section 90 of the said Act. That would leave us much less than a period of 12 years which is the minimum requisite period for a claim under Section 7. As matter of fact also, this part of the defence has not been pressed before us in this appeal.
( 11 ) THE
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