The main legal principle established in the judgment is the mandatory nature of the statutory provisions outlined in Section 7 of the West Bengal Premises Tenancy Act, 1997, and the inapplicability of Section 5 of the Limitation Act in cases related to the filing of applications under Sections 7(1) and 7(2).

JUDGMENT :

Shampa Sarkar, J.

1. The revisional application arises out of an order dated July 17, 2023 passed by the learned Chief Judge-in-Charge, City Civil Court at Calcutta in Ejectment Suit No.133 of 2019.

2. By the order impugned, the learned Court rejected the application for condonation of delay filed by the defendant along with the application under Sections 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the said Act).

3. The learned Court was of the view that as the applications under Sections 7(1) and 7(2) were not filed within a month from receipt of summons, delay in filing the said applications could not be condoned. When the delay could not be condoned, the learned Court was also powerless to consider the prayers made in the said applications. As the defendant failed to avail of the opportunity granted to a tenant under Section 7 of the said Act, within the time specified, the Court held that no discretion could be exercised to extend the statutory period. The time specified in the statute under Section 7(1)(b) was mandatory. The steps to be taken by the tenant under Section 7(1)(a) were also mandatory.

4. The petitioner is the defendant/tenant who has challenged the said order on the following grounds:-

a) The summons were received on September 29, 2022 a day before the ‘Puja’ vacation, and the applications were filed on November 14, 2022 soon after reopening of the ‘Puja’ vacation.

b) The delay was nominal and in any event when the specific contention of the petitioner/tenant was that there were no admitted dues payable as arrear rent to the landlord, the delay would not become fatal.

c) The time taken by the learned Advocate to prepare the applications, had caused the delay. The Court had reopened only a few days before the applications were filed and the tenant had to brief his learned Advocate during the intervening period.

5. The petitioner represented by Mr. Sagar Bandhyopadhyay, learned Advocate submitted that the decision in Bijay Kumar Singh and ors. vs. Amit Kumar Chamariya and ors. reported in (2019) 10 SCC 660 and the decision of the of the Division Bench of this Court in Binika Thapa (Nee Rai) and anr. vs. Damber Kumari Mukhia and anr. reported in 2023 SCC OnLine Cal 5478, would not be applicable in the instant case as there were no admitted arrears.

6. Mr. Bandhyopadhyay submitted that summons were received by the tenant on September 29, 2022. On the following day the Court closed for the ‘Durga Puja’ holiday, i.e., on September 30, 2022. The Court reopened on October 27, 2022. The petitioner engaged a learned Advocate after reopening of the court and filed the application on November 14, 2022.

7. It was further contended by Mr. Bandhyopadhyay that the plaintiff had instituted the suit on the ground of default, reasonable requirement and subletting. According to the plaintiff, the default in payment of rent was from March 2017. The rent payable was @ Rs.1090/-, payable according to English calendar month. In the application under Section 7(1), it was stated that Mohammad Zaeem, the son-in-law of the plaintiff had collected money in excess of the rent. He received a sum of Rs.40,500/-on February 27, 2018 towards rent for the month of July 2016 to March 2017. Again, he received a sum of Rs.45,000/-on February 27, 2018 towards rent from April 2017 to December 2017. Thereafter, he received a sum of Rs.15,000/-on February 27, 2018 towards rent for the month of January 2018 to March 2018. On January 24, 2022, Rs.1,80,000/-was received for rent towards April 2018 to March 2021. Thus, the son-in-law had collected amounts much in excess of the rent and there was no default in payment of the rent. The application under Section 5 of the Limitation Act which was filed for condonation of delay in the filing the application under Sections 7(1) and (7(2) of the said Act, should be allowed in the facts and circumstances of the case, especially when there was no default. Further praye