Back
2010 Supreme(Cal) 1438
High Court of Judicature at Calcutta
PRASENJIT MANDAL
M/s. Indo American Electricals Ltd.
Versus
Gopa Sinha & Others
C.O. No. 2451 of 2010
Decided On : 14-12-2010
For the petitioner:Ashok Banerjee, Amitava Das, Debdut Mukherjee, Advocates.
For the opposite parties:S. P. Sarkar, Arindam Mukherjee, Dipankar Ghosh, Advocates.
The word "shall" in Section 7(3) of the West Bengal Premises Tenancy Act, 1997 should be construed as directory and not mandatory, and that the court has the discretion to strike out the defence of a tenant for non-compliance with Section 7(1) and 7(2) of the Act.
Headnote:
WEST BENGAL PREMISES TENANCY ACT, 1997 - SECTION 7(1), 7(3) - LIMITATION ACT, 1963 - SECTION 5 - DELAY IN FILING APPLICATION UNDER SECTION 7(1) - CONDONATION - SUFFICIENT CAUSE - MISTAKE OF COUNSEL - GROSS NEGLIGENCE - STRIKE OUT OF DEFENCE - DISCRETIONARY POWER OF COURT - INTERPRETATION OF "SHALL" AS DIRECTORY.
Fact of the Case:
The petitioner, a company, filed an application under Section 5 of the Limitation Act, 1963, seeking condonation of delay in filing an application under Section 7(1) of the West Bengal Premises Tenancy Act, 1997. The petitioner also filed an application under Section 7(1) of the Act, praying for permission to deposit the entire arrears of rent at a time. The opposite party filed an application under Section 7(3) of the Act, seeking to strike out the petitioner's defence for non-compliance with Section 7(1) and 7(2) of the Act.
Finding of the Court:
The court held that the petitioner's delay in filing the application under Section 7(1) of the Act was not bona fide and amounted to gross negligence. The court further held that the mistake of counsel, as pleaded by the petitioner, could not be accepted as a sufficient cause for condonation of delay. The court also held that the word "shall" in Section 7(3) of the Act should be construed as directory and not mandatory, and that the court has the discretion to strike out the defence of a tenant for non-compliance with Section 7(1) and 7(2) of the Act.
Issues: 1. Whether the learned Trial judge was justified in rejecting the application under Section 5 of the Limitation Act; 2. Whether the learned Trial judge was justified in rejecting the application under Section 7(1) of the Act of 1997; and 3. Whether the learned Trial judge was justified in allowing the application under Section 7(3) of the said Act of 1997.
Ratio Decidendi: 1. The court held that the petitioner's delay in filing the application under Section 7(1) of the Act was not bona fide and amounted to gross negligence. 2. The court further held that the mistake of counsel, as pleaded by the petitioner, could not be accepted as a sufficient cause for condonation of delay. 3. The court also held that the word "shall" in Section 7(3) of the Act should be construed as directory and not mandatory, and that the court has the discretion to strike out the defence of a tenant for non-compliance with Section 7(1) and 7(2) of the Act.
Final Decision: The court dismissed the petitioner's application, holding that the learned Trial Judge was justified in rejecting the application under Section 5 of the Limitation Act, the application under Section 7(1) of the Act, and in allowing the application under Section 7(3) of the Act.
Prasenjit Mandal, J
This application is at the instance of the defendant and is directed against the order dated June 30, 2010 passed by the learned Judge, Presidency Small Causes Court, Calcutta in Ejectment Suit No.5 of 2007 thereby rejecting an application under Section 5 of the Limitation Act, an application under Section 7(1) of the West Bengal Premises Tenancy Act and allowing the application under Section 7(3) of the West Bengal Premises Tenancy Act, 1997 on contest.
The short fact is that the plaintiff/opposite party instituted an ejectment suit being Ejectment Suit No.5 of 2007 on the ground of default, reasonable requirement, etc. The petitioner was contesting the said suit by filing a written statement. Even it participated in the matter of amendment of the plaint by filing a written objection to the application for amendment of the plaint. But the petitioner did not take any step under Section 7(1) of the Act of 1997. For that reason, the opposite party filed an application under Section 7 (3) of the said Act of 1997. It is only at that time when the petitioner filed an objection against the petition under Section 7(3) of the Act of 1997 denying that it is a defaulter in payment of rent, it filed an application under Section 7(1) of the Act of 1997 praying for permission to deposit the entire arrears of rent at a time along with an application under Section 5 of the Limitation Act for condonation of delay in filing the application under Section 7(1) of the said Act. All the three petitions have been disposed of by a composite order, at first, rejecting the application under Section 5 of the Limitation Act and the application under Section 7(1) of the Act of 1997 and then allowing the application under Section 7(3) of the said Act. Being aggrieved by the impugned order, the petitioner has preferred this application.
Mr. Banerjee, appearing on behalf of the petitioner, submits that a client should not suffer for default on the part of the lawyer. The defendant being a company it had to depend on the advice of the legal expert and since proper advice was not tendered, it could not take appropriate steps under Section 7(1) of the said Act within 30 days from the date of appearance. In appropriate cases, the Court may allow the prayer for condonation of delay. Mr. Banerjee also submits that though the provisions of Section 7 (3) of the said Act lays down that in case of noncompliance of Section 7(1) and 7(2) of the Act, the Court “shall” strike out defence, according to the decision of the Apex Court, the exercise of such power is directory and not mandatory. So, the learned Trial Judge should have taken a liberal approach in disposing of the application under Section 7(1) of the Act along with the application under Section 5 of the Limitation Act.
On the other hand, Mr. Sarkar appearing on behalf of the opposite party, submits that as per scheme of the Act, Section 7(1) must be complied with within 30 days from the date of service of summons/appearance. Since the petitioner did not comply with such provisions, according to the decision of the Apex Court, the defence against the delivery of possession ‘shall’ be struck off. So, the learned Trial Judge has rightly passed the impugned order.
So, the following questions have arisen for decision in this application:-
1. Whether the learned Trial judge was justified in rejecting the application under Section 5 of the Limitation Act;
2. Whether the learned Trial judge was justified in rejecting the application under Section 7(1) of the Act of 1997; and
3. Whether the learned Trial judge was justified in allowing the application under Section 7(3) of the said Act of 1997.
Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the opposite parties filed the suit for recovery of possession on the ground of default, reasonable requirement, etc. It does not appear that summons was duly served upon the opposite part
