Judgment :

Ajoy Kumar Mukherjee , J.

1. This Application under Article 227 of the Constitution of India has been directed against order no. 34 dated 15th January 2024 passed by learned Civil Judge (Senior Division), Siliguri in Title Suit. no. 93 of 2018. By the impugned order learned court below rejected petitioners application under section 7 of the West Bengal Premises Tenancy Act, 1997 (in short Act of 1997).

2. The petitioner’s contention is that opposite party/plaintiff filed aforesaid Title Suit no. 93 of 2018 praying for decree of recovery of khas possession of the suit premises after evicting the petitioner herein/defendant. The petitioner further submits that he is a chronic myloid leukemia patient and he reposed entire faith on his erstwhile learned counsel one Mr. Dutta Joardar and entered appearance in the suit to defend himself on 27.11.2019. Thereafter, on 02.12.2021, due to non appearance of the said advocate of the petitioner, the case was posted for ex-parte hearing. Subsequently on the basis of a prayer made by the petitioner said order got vacated and suit was again posted for contested hearing.

3. On 16.10.2023 during examination of the petitioner/defendant as DW-1, petitioner herein for the first time, on enquiry by the learned court, came to learn that he was supposed to deposit arrear rent and current rent month by month but he could not reveal anything to the court as he all along acted in good faith on the advice of his said advocate.

4. Thereafter, on 08.01.2024 the petitioner defendant was represented through his newly engaged advocate and under his advice the petitioner defendant on 15.01.2024 filed three applications under section 7 (1) (a) and 7 (2) and section 7 (1) (c ) along with prayer under section 40 of the Act of 1997 read with section 5 of the Limitation Act for condonation of delay. In support of condonation of delay he also filed all medical certificates. However, learned court below by the order impugned rejected all the aforesaid applications upon hearing both the parties.

5. Learned counsel appearing on behalf of the petitioner posed the following questions before this court for adjudication (a) Whether non filing of the application under section 7(1)

(a) in time was a mistake of fact on the part of the petitioner /defendant, as the petitioner always acted as per the advice of his erstwhile counsel ?

(b) Whether the petitioner should suffer due to the acts and conduct of the petitioner’s erstwhile counsel in a civil proceeding or not?

(c) Whether an advocate is an officer of the court and if so whether the maxim “actus curiae neminem gravabit should apply in the present context or not?

(d) Whether the learned Civil Judge (Senior Division), Siliguri erred substantially both in law and fact in failing to appreciate that the petitioner acted in good faith under the advice of his erstwhile counsel, hence, there was no latches or lacuna on the part of petitioner in defending the suit.

(e) Whether invocation of section 7 of the premises Tenancy Act, 1997 is a proceeding within the meaning of section 40 of premises Tenancy Act, 1997 or not?

(f) And if so, whether the Doctrine of sub-silencio is applicable while interpreting the ratio laid down in Bijoy Kumar Singh & others Vs. Amit Kumar Chamaria reported in 2020 (1) ICC 664 (SC) or not?

Decision

6. Before going to further details let me refer list of dates which are important for the adjudication for the present dispute.

20.12.2018:-- The opposite party herein plaintiff filed aforesaid suit for eviction against petitioner/defendant

27.11.2019:-- The petitioner defendant entered appearance though his advocate and prays for time to file written statement.

02.12.2021:-- Due to non appearance of the petitioner /defendant, the case was posted for ex-parte hearing.

08.09.2022:-- The case was again posted for contested disposal after allowing petitioner/defendant’s application under Order IX Rule 7 of the Code of Civil Procedure.

01.12.2023:-- The case was referred