BINIKA THAPA Vs. DAMBER KUMARI

JUDGEMENT

(1.) These civil revisional applications from the Circuit Bench at Jalpaiguri, have been referred to this Bench at the principal seat at Calcutta, in view of the divergent opinions of two learned Single Judges of this Court. The moot question involved in the applications is whether the Court can extend the time for depositing the admitted arrear rent together with statutory interest as provided in Sec. 7(1) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the said Act), upon condoning the delay under Sec. 5 of the Limitation Act, 1963. The Hon'ble Chief Justice constituted this Bench to answer the reference. The points for reference are thus:-

(2.) The points for reference being inter-linked with the facts of the present eviction suits, are answered together. The brief analysis of the facts in each of the eviction suits giving rise to the revisional application, is necessary.

(3.) CO No.64 of 2023 arises out of an order dated May 30, 2023 passed by the learned Civil Judge (Senior Division) at Darjeeling in O.C. (Eviction) Suit No.05 of 2022. The learned judge held that in view of the decisions of the Hon'ble Apex Court in the matter of Bijay Kumar Singh and anr. Vs. Amit Kumar Chamariya and anr. reported in (2019) 10 SCC 660 and followed by the High Court at Calcutta in Papiya Sengupta and ors. Vs. Sri Suvasis Ghosh, reported in 2020 SCC Online Cal 3267, it could be concluded that Sec. 5 of the Limitation Act would not have any application and the Court could not condone the delay in filing the applications under Ss. 7(1) and 7(2) of the said Act. Upon coming to such finding, the learned trial judge allowed the application under Sec. 7(3) of the said Act filed by the landlord/plaintiff, thereby striking out the defence of the defendant/tenant, against delivery of possession. The defendant/tenant filed the civil revisional application challenging the said order on the grounds that the word 'shall' appearing in Sec. 7(1) of the said Act was directory and not mandatory. That the averments in the application under Sec. 5 of the Limitation Act ought to have been appreciated and the delay should have been condoned on the causes that were shown. The severity of the illness of the petitioner No.1, who had to undergo a surgery and the difficulty faced by the petitioner No.2, who was the constant care-giver, were sufficient reasons for the delay in filing the applications. The delay in filing the said application should be condoned.