Skip to content


Kali Prasad Basu and ors. Vs. Susanta Kumar Pratihar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Tenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 2285 of 1981
Judge
Reported inAIR1984Cal278
ActsLimitation Act, 1963 - Section 5; ;West Bengal Premises Tenancy Act, 1956 - Section 17(2)
AppellantKali Prasad Basu and ors.
RespondentSusanta Kumar Pratihar and ors.
Appellant AdvocateSaktinath Mukherjee and ;P.R. Das, Advs.
Respondent AdvocateH.K. Basu, Adv.
Cases ReferredKeshab Chandra Datta v. Ballygungc Estate Private Ltd.
Excerpt:
- .....the instance of the plaintiffs and it is directed against an order dated may 2, 1981 passed by the learned munsif, 2nd court, alipore in title suit no. 555 of 1978, allowing the defendant no. 1's application under section 5 of the limitation act on payment of cost.2. the plaintiffs, kali prasad basu and debabrata basu filed a suit for eviction of defendant no. 1 susanta kumar pratihar on the ground of default and reasonable requirement. it is alleged that the suit premises originally belonged to manorama basu, mother of the plaintiffs and pro forma defendants nos. 2 to 5. the defendant no. 1 was a monthly tenant under the plaintiff's mother, manorama, on a monthly rental of rs. 200/- payable according to english calendar month. after the death of manorama the suit property devolved upon.....
Judgment:
ORDER

S.N. Sanyal, J.

1. This revisional application is at the instance of the plaintiffs and it is directed against an Order dated May 2, 1981 passed by the learned Munsif, 2nd Court, Alipore in Title Suit No. 555 of 1978, allowing the defendant No. 1's application under Section 5 of the Limitation Act on payment of cost.

2. The plaintiffs, Kali Prasad Basu and Debabrata Basu filed a suit for eviction of defendant No. 1 Susanta Kumar Pratihar on the ground of default and reasonable requirement. It is alleged that the suit premises originally belonged to Manorama Basu, mother of the plaintiffs and pro forma defendants Nos. 2 to 5. The defendant No. 1 was a monthly tenant under the plaintiff's mother, Manorama, on a monthly rental of Rs. 200/- payable according to English Calendar month. After the death of Manorama the suit property devolved upon her heirs being the plaintiffs and pro forma defendants 2 to 5. They are thus the owners of the premises. The plaintiffs with due information to the defendants began to collect rent from the defendant No. 1. The defendant No. 1 defaulted in payment of rent from April, 1978. The suit premises are also reasonably required by the plaintiffs for their, own use and occupation. The suit was instituted on Dec. 8, 1978. The summons was served upon the defendant No. 1 through registered post on Dec. 6, 1979. On Dec. 20, 1979 the defendant No. 1 appeared and submitted that though he had received summons, he received an incomplete copy of plaint and he prayed for service copy of plaint and for time to file written statement. On March 10, 1980 the defendant No. 1 filed an application under Sections 17 (2) and 17 (2-A) (b) of the W. B. Premises Tenancy Act. On the said date the defendant No. 1 filed an application under Section 5 of the Limitation Act read with Section 151 of the Civil P. C. The plaintiffs opposed the applications. The application under Section 5 of the Limitation Act has been allowed by the impugned order,

3. Being aggrieved the petitioners have challenged the said order in the present Rule.

4. Mr. Saktinath Mukherjee, learned Advocate appearing in support of the Rule has submitted that through registered post the summons was served on December 6, 1979. The contention of defendant No. 1 was that he had received incomplete copy of plaint. Mr. Mukherjee argues that even it be held that no writ of summons was served upon the defendant No. 1, but as he appeared on December 20, 1979 he ought to have filed the application under Section 17 (2) of the W. B. Premises Tenancy Act within one month of his appearance. The application was thus barred by limitation. Mr. Mukherjee argues that in the application under Section 5 of the Act no dates have been mentioned and the application is vague as it does not contain material particulars. In order to establish that there was sufficient cause for not making the application within the prescribed period the defendant No. 1 should have given particulars when he received the wrong advice of his lawyer at Alipore and when he consulted the lawyer at Midnapore. The contention of Mr. Mukher-jee is that the Court has no discretion unless sufficient cause has been shown and in order to exercise discretion, relevant materials must be placed before the Court. The Court cannot condone the delay on surmises and conjectures. Mr. Mukherjee has argued that the learned Munsif has come to his finding purely on surmises as he is of opinion that had the defendant not been prevented by sufficient cause for the wrong advice of his lawyer, there was no earthly reason why he should take that much of risk by coming with an application under Section 17 (2) and (2-A) of the West Bengal Premises Tenancy Act after expiry of the prescribed period. Mr. Mukherjee contends that the learned Munsif has acted illegally and with material irregularity and this Court in exercise of its power of revision should interfere with the said order. In support of his arguments Mr. Mukherjee has referred to the cases of Ramlal v. Rewa Coalfields Ltd., : [1962]2SCR762 , Inder Singh Des Raj v. Harnam Singh Gian Singh, , Chiranjib Prasad Roy v. Union of India, : AIR1983Cal21 .

5. Mr. Bose, learned Advocate for theopposite party No. 1, has argued that though summons upon the defendant No. 1 wasserved through registered post, but the same was not accompanied by a copy of plaint Order 5, Rule 2, C. P. Code requires that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Mr. Bose has argued, that the defendant No. 1 appeared on Dec. 20, 1979 and filed an application for supply of the copy of the plaint. The copy of the plaint was served on February 12, 1980. On March 10, 1980 the defendant No. I filed an application under Ss. 17(2) and 17 (2-A) (b) of the West Bengal Premises Tenancy Act. He also filed an application under Section 5 of the Limitation Act. The contention of Mr. Bose is that if the date of supply of copy of the plaint is considered to be the date from which time will run, then the application was within time. Mr. Bose argues that if, on the other hand, it be held that the time began to run earlier, then there was sufficient cause for not making the application within time because the defendant No. 1 was wrongly advised by his lawyer that having regard to the contentions made, there was no necessity for an application under Section 17 (2) of the W. B. Premises Tenancy Act. Thereafter, the defendant No. 1 was advised by a lawyer of Midnapure that it was better to file an application under Sections 17 (2) and 17 (2-A) of the W. B. Premises Tenancy Act to avoid technical objection. There was thus sufficient cause and the learned Munsif after considering the materials was satisfied about the same. Mr. Bose has argued that the wrong advice of a lawyer is sufficient cause and in this connection he has referred to the case of Debabrata Mukherjee v. Kalyan Kumar Roy, (1981) 1 Cal LJ 209. Referring to the case of Keshab Chandra Datta v. Ballygunge Estate Private Ltd., : AIR1972Cal221 , Mr. Bose has argued that the High Court in exercise of the power under Section 115, C. P. C. would not interfere even if the lower Court is in error in appraisal of the evidence. Mr. Bose has argued that the learned Munsif had jurisdiction to deal with the application under Section 5 of the Limitation Act. The defendant No. 1's application was supported by an affidavit and the plaintiffs did not file any counter affidavit to controvert the allegations of the defendant No. 1. In such circumstances, the learned Munsif acted properly in the exercise of his jurisdiction by accepting the affidavit of the defendant No. 1.

6. The summons through registered post was served upon the defendant No. 1 onDecember 6, 1979. The defendant No. 1 appeared on December 20, 1979. It may be said that the service of summons without copy of the plaint will not be valid. In that case the appearance of the defendant No. 1 on December 20, 1979 will be without the writ of summons being served upon him. The defendant No. 1 will thus have to file application under Section 17 (2) of the W. B. Premises Tenancy Act within one month of his appearance. The application under Section 17 (2) was filed on March 10, 1980 and it was thus beyond time. In order to succeed with his application under Section 5 of the Limitation Act, the defendant No. 1 had to satisfy the Court that he had sufficient cause for not making the application within the prescribed period. In the instant case the reasons given by the defendant No. 1 are that some of the heirs of Manorama figured as plaintiffs excluding the other heirs and there was no relationship of landlord and tenant between the plaintiffs and the defendant No. 1 and he was legally advised that Section 17 was not attracted. In paragraph 6 of his application the defendant No. 1 states that recently he has been advised by consulting another advocate of Midnapore that it is better to file an application under Sections 17 (2) and 17 (2-A) of the W. B. Premises Tenancy Act to avoid any technical objection. Significantly, however, no date has been mentioned. In such circumstances, the contention of Mr. Mukherjee is that even if no affidavit in opposition was filed by the plaintiffs still the defendant No. 1's application under Section 5 lacked in material particulars and it was not possible for the learned lower Court to come to any finding regarding the existence of sufficiency of cause. The facts giving rise to the case reported in (1981) 1 Cal LJ 209 can be distinguished from the facts of the instant case. In the said case there was mistake on the part of the lawyer in computing the period of limitation for an appeal from a decree of a Court. There is no doubt that, when a client proves that he had acted bona fide and with reasonable care in approaching a particular lawyer who gives him a wrong advice with the result that the period of limitation expires before any step is taken, he is entitled to rely upon such advice as sufficient cause for the delay. In the instant case, however, nothing has been mentioned in defendant No. 1's application whether the advice of the lawyer of Midnapore was given before or after expiry of the period of limitation. In the case of Keshab Chandra Datta v. Ballygungc Estate Private Ltd., : AIR1972Cal221 it has been held that if there is error on the part of subordinate Court in appraisal of evidence adduced before the Court, the High Court cannot under Section 115, C. P. C. interfere with the order unless the error is a jurisdic-tional error either of law or of fact

7. In Ramlal's case, : [1962]2SCR762 it has been held that it is necessary to emphasize that even after sufficiaent cause has been shown a party is not entitled to condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in Court by Section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration. But the scope of the enquiry, while exercising discretionary power after sufficient cause is shown, would naturally be limited only to such facts as the Court may regard as relevant. In Inder Singh's case, , it has been held that the Court has no power to extend time as a matter of indulgence. In exercise of the discretion which vests in the Court it has only to find out whether the conditions justifying extension exist.

8. There is much force in the contention of Mr. Mukherjee that the learned Court below has allowed the application relying mainly upon the surmises and conjectures. There was no material before the Court from which the Court could be satisfied when the defendant No. 1 became aware that it was better to file an application under Section 17 (2) of the West Bengal Premises Tenancy Act. The learned Munsif has acted with material irregularity when he failed to take into consideration the relevant material necessary in dealing with the application under Section 5 of the Limitation Act. The reason given by the learned Munsif that had the defendant not been prevented by wrong advice of his lawyer, he would have filed the application in time, is wholly irrelevant No oral evidence way adduced and the affidavit of the defendant No. 1 was insufficient. Moreover, the learned Munsif has acted illegally and with material irregularity in exercise of the jurisdiction when he came to the conclusion that ends of justice would be served if the application under Section 5 was allowed on payment of compensatory costs. There has been thus jurisdictional error on the part of the learned Munsif and he has failed to appreciate the scope of application under Section 5 of the Limitation Act. In the circumstances, the order of the learned Munsif cannot be upheld. The application under Section 5 of the Limitation Act should be sent back to the learned Court below for rehearing in accordance with law.

9. The Rule is thus made absolute. The impugned order of the learned Munsif is set aside. The case is sent back to the learned Munsif for disposal of the application under Section 5 of the Limitation Act in accordance with law and, thereafter, for proceeding with the hearing of the suit. The parties will be entitled to adduce such evidence as may be necessary.

10. There will be no order as to costs.

11. Let the records be sent to the learned Court below forthwith.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //