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High Court Of Calcutta
Nripendra Kumar Bhattacharyya
NARENDRA PARID - Appellant
Versus
CHAMPADEN KHAROWAR - Respondent
. . Of .
Decided On : 01/09/1996
CIVIL PROCEDURE CODE - SECTION 151 - INHERENT JURISDICTION - EXERCISE OF - LIMITATION - RESIDUARY PROVISION - APPLICABILITY - INHERENT POWERS OF THE COURT - SCOPE AND EXERCISE.
Fact of the Case:
The petitioner, a tenant, filed an application under Section 151 of the Code of Civil Procedure (CPC) to recall an order rejecting his application for condonation of delay in filing an application under Section 17(2) and (2a) of the West Bengal Premises Tenancy Act. The petitioner argued that the order was not disposed of on merit and that the application under Section 151 was filed within the limitation period of three years under the residuary provision of the Limitation Act.
Finding of the Court:
The court held that Section 151 CPC cannot be resorted to when there is a specific provision in the Act and/or Code. The court found that the petitioner could have challenged the order rejecting the application for condonation of delay by filing a revision under Section 115 or 115A of the CPC, but he failed to do so within the prescribed limitation period. The court also found that the trial court had disposed of the limitation application on merit and had given reasons for rejecting it.
Issues: 1. Whether Section 151 CPC can be invoked when there is a specific provision in the Act and/or Code? 2. Whether the application under Section 151 CPC was filed within the limitation period? 3. Whether the trial court had disposed of the limitation application on merit?
Ratio Decidendi: 1. The court held that Section 151 CPC cannot be invoked when there is a specific provision in the Act and/or Code. The court relied on the Supreme Court decisions in Padama Sen and Anr. v. The State of U. P. and Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, which held that the inherent powers of the court under Section 151 CPC cannot be exercised to nullify the provisions of the Code or to go against the intentions of the Legislature. 2. The court held that the application under Section 151 CPC was not filed within the limitation period. The court noted that the petitioner could have challenged the order rejecting the application for condonation of delay by filing a revision under Section 115 or 115A of the CPC, but he failed to do so within the prescribed limitation period of 30 days and 90 days respectively. 3. The court held that the trial court had disposed of the limitation application on merit. The court noted that the trial court had recorded reasons for rejecting the application, including the failure of the petitioner to adduce evidence in support of his case.
Final Decision: The court dismissed the revision application, holding that there was no merit in it.
( 1 ) HEARD the submission of the learned Advocate for the petitioner Mr. Haradhan Banerjee appearing with Mr. Amitava Pyne and the learned Advocate for the Opposite party Mr. Bidyut Kr. Banerjee appearing with Ms. Shila Sarkar. Considered the materials on record.
( 2 ) BY this application under section 115 of the C. P. C. the petitioner has challenged order No. 101 dared 21st November, 1994 passed by the Ld. Munsif, 7th court, Howrah in Title Suit No. 11 /90, whereby the Ld. Munsif rejected the application of the petitioner made under section 151 of the C. P. C. praying, inter alia, for recalling of the order passed by the learned Munsif of that court in that suit, being order No. 57 dated 20. 4. 92.
( 3 ) THE facts silhouetted behind this revision is that admittedly the petitioner is a tenant under the opposite party herein and the opposite party herein, for evicting the defendant from the suit premises, filed Title Suit No. 11/90 in the court of the 7th Munsif, Howrah on the ground of default and reasonable requirement. The defendant-petitioner filed an application in that suit under section 17 (2) and (2a) of the West Bengal Premises Tenancy Act, but beyond time and an application for condonation of delay was made for condoning the delay in filing the application under section 17 (2) and (2a) of the West Bengal Premises Tenancy Act. The ground that has been taken in that limitation application was illness of the defendant and other disturbances in his family. The application came up for hearing before the Ld. Munsif on 20th April, 1992 and the Ld. Munsif found that the defendant could not establish the ground of illness as no evidence was adduced by him as he failed to appear before the court and the application was dismissed on merit, as has been specified by the Ld. Munsif in his order. In the ordering portion he has stated, inter alia, that "the petition under section 5 of the Limitation Act is rejected but on merit. " The Ld. Munsif was also pleased to observe that "the defendant has also failed to discharge his obligation to establish the ground as has been made out in the petition u/s. 5 of the Limitation Act. "
( 4 ) BE that as it may, that order was not challenged before any superior court. It could have been challenged u/s. 115a of the C. P. C. before the District Judge or before this High Court u/s. 115 of the C. P. C. Time limit for moving such application before the District Judge is 30 days and before this High Court is 90 days. But the petitioner preferred not to resort to any of the provisions as indicated earlier and he suffered that order. Thereafter, there was default regarding payment of rent for the month of May, 1993 to July, 1994 and the petitioner, in the meantime, due to the failure of depositing the rent for the month of June, 1993 to April, 1994, made an application for condonation of delay u/s 5 of the Limitation Act which was filed on 4th May, 1994. That application came up for hearing before the Ld. Munsif on 3rd August, 1994 and the Ld. Munsif by his order dated 3rd August, 1994 disposed of that application allowing the same as a concession was given to the plaintiff that if, in the meantime, the rent not being deposited, let it be deposited. But unfortunately, that was not deposited. Thereafter, the rent was deposited and another application was filed for condonation of delay in depositing the rent which was filed on 19th August, 1994. There also the ground of illness was taken and the ground that money could not be collected was also taken. That application came up for hearing before the Ld. Munsif on 4. 8. 94 who held that the defendant failed to show that the defendant has deposited the rent by production of challan and he dismissed the application. The matter rested there. Thereafter the main suit was taken up for hearing and the plaintiff examined herself as P. W. 1 to Chief on 21st November, 1994 and thereafter she was cross-examined partially. At that stage t
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