Provisions of Section 5 of the Limitation Act, 1963 are applicable for condoning the delay in presentation of a time-barred petition under Section 7(2) of the West Bengal Premises Tenancy Act, 1997.

1. In a suit for eviction of tenant (Ejectment Suit No.48/07), the petitioner is the defendant. After receipt of certified copy of the plaint from the trial Court, the petitioner entered appearance in the suit and filed his written statement on September 8, 2009. It has been alleged by him that summons along with the plaint has not been served upon him.

2. On or about January 7, 2010, the plaintiff (opposite party herein) filed a petition under Section 7(3) of the West Bengal Premises Tenancy Act, 1997 (hereafter the Act) urging the trial Court to strike out the defence of the petitioner. While the said petition was pending, the petitioner filed a petition under Section 7(2) of the Act on March 25, 2010. This petition was accompanied by an application under section 5 of the Limitation Act for condoning the delay in filing the petition under Section 7(2) of the Act.

3. The petition under Section 7(2) of the Act as well as the application under Section 5 of the Limitation Act was opposed by the plaintiff in the trial Court. Upon hearing the parties, the trial Court by its order dated August 18, 2010 rejected the same, without costs. The trial Court was of the view that there were serious laches on the part of the petitioner and the delay, which was largely unexplained, cannot be condoned.

4. Mr. Chakraborty, learned senior advocate representing the petitioner, contended that the trial Court failed to consider that while considering an application seeking condonation of delay under Section 5 of the Limitation Act, the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice, which in the facts of the present case, could have been achieved by awarding compensatory costs to the plaintiff. In support of his submission Mr. Chakraborty placed reliance on the decision reported in (2001) 6 SCC 176 (M.K. Prasad vs. P. Arumugam). The trial Court, according to him, failed to exercise jurisdiction vested in him by not accepting the plea set up by the petitioner for condonation of delay and accordingly he prayed for quashing of the order dated August 18, 2010.

5. Mr. Routh, learned advocate appearing for the opposite party contended that the trial Court did not commit any error worthy of interference. Apart from the fact that the trial Court was right in not believing the plea set up by the petitioner seeking condonation of delay in filing the petition under Section 7(2) of the Act, it was contended that the provisions of the Limitation Act have no application to proceedings under Section 7(2) of the Act. In support of such submission, the decision of a learned single Judge of this Court reported in AIR 2009 NOC 191 (CAL) (Md. Safique vs. Chowdhury Abdul Kader) was relied on. Reliance was also placed by Mr. Routh on the decisions reported in (2011) 1 WBLR (SC) 440 [Balwant Singh (dead) vs. Jagdish Singh & anr.] and AIR 1998 SC 2276 [P.K. Ramachandran vs. State of Kerala & anr.] to contend that discretion was rightly not exercised by the trial Court in favour of the petitioner.

6. Countering the submission of Mr. Routh on the point as to whether a petition under Section 7(2) of the Act could be received by the trial Court for adjudication after condoning the delay in its presentation, Mr. Chakraborty referred to Section 40 of the Act. According to him, attention of the learned single Judge was not drawn to this provision while the case of Md. Safique (supra) was decided. He urged the Court to declare the decision in Md. Safique (supra) per incuriam.

7. While replying to a query of Court as to whether exercising coordinate jurisdiction it is open to this Court to declare a decision rendered by another single Judge of this Court per incuriam, Mr. Chakraborty placed reliance on the decision of a learned single Judge of this Court reported in AIR 1994 Calcutta 205 (Murari Kumar Shroff vs. Jagannath Shaw) wherein the decision of another learned single Judge of this Court reported in