1.The plaintiff/opposite party herein on 06th September, 2017 filed a suit, being other suit no. 42 of 2017 before Civil Judge (Junior Division) 1st Court Tamluk against the defendants/petitioners herein for khas possession by eviction, mean profit and also for other reliefs.

2.The petitioners being defendant no.1, 2, 3 and 4 of the said suit after getting summon entered appearance in the said suit on 14th December, 2017. Thereafter on 06th March, 2018, the defendants/ petitioners herein filed applications under section 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997 (in short Act of 1997) and along with the said applications, the defendants/petitioners also filed another application under section 5 of the Limitation Act 1963 for condoning delay in filing the applications under section 7(1) and 7(2) of the Act of 1997. By an order dated 9th March, 2018, the court below allowed defendants, Application under section 7(1) of the Act of 1997 and fixed next date for hearing defendants’ application under section 7(2) of the Act. Thereafter the petitioner deposited the alleged arrear rent and also deposited original challan on 27.03.2018. On 03.04.2018 the plaintiffs /opposite parties filed a petition for modification of the aforesaid order dated 09.03.2018 which came up for hearing before the court below on 24.04.2018 and after hearing the parties court below modified order dated 9th March, 2018 passed in connection with the Application under Section 7(1)and fixed next date for rehearing of the petition filed by defendant petitioners under section 7(1) of the Act of 1997 along with the Application filed under section 5 of the Limitation Act. Thereafter plaintiff opposite party filed written objection against defendants’ applications filed under section 7(1) and 7(2) of the Act of 1997 and also against the petitioner under section 5 of the limitation Act on 29.9.2018. All the aforesaid applications thereafter came up for hearing before the court below on 09.10.2018 and by the order impugned, learned court below rejected all the three applications filed by the defendants/ petitioners.

3. Being aggrieved by that order Mr. Das. Learned counsel appearing on behalf of the petitioner submits that the court below has acted material irregularity in rejecting the petitioners’ application under section 5 of the Limitation Act seeking condonation of delay filed in connection with Applications under section 7(1) and 7(2) of the Act of 1977. He did not consider that the clerk concerned failed to take the next date fixed by the court below and for which the delay was caused. However immediate after getting the knowledge about next date of the instant suit, the petitioners appeared and filed applications under sections 7(1) and 7(2) of the Act of 1997, along with application under section 5 of the Limitation Act for condonation of delay. Learned court below failed to consider that section 5 of the Limitation Act is applicable even in a proceeding initiated under the Act of 1997. He also failed to consider that the time limit mentioned in section 7 of the Act is not inflexible and it can be extended by the court invoking section 5 of the Limitation Act. Accordingly he prayed for setting aside the order impugned.

4. In this context he relied upon the following judgment:-

(i) Bahadur Singh Kathotia Vs. Purabi Basu reported in 2023 SCC Online Cal 350, (2) Shibu Chandra Dhar Vs. Sri Pasupati Nath Auddya (2002 Supreme Appeals reporter (Civil) 446.

5. Learned counsel appearing for the opposite party submits that it is settled position of law that section 5 of the Limitation Act has got no application for condonation of delay in filing the application under section 7(1) and 7(2) of the Act and as such present application is misconceived and the court below rightly rejected the aforesaid applications filed by the defendant/petitioner.

6. In this context he relied upon the following judgments:-

(a) Bijay Kumar Singh and others Vs. Amit Kumar Chamariya a