SK MUZIBUL HAQUE Vs. SUDARSAN PAL

JUDGEMENT

(1.) THE plaintiff-petitioner filed Suit No. 247 of 1931 for eviction against the defendant-opposite party on the ground of default and reasonable ment. The suit was instituted on August 25,1981. Summons was served upon the defendant opposite-party no. 1 on September 8,1981 and he appeared on December 23, 1981 and prayed for'time for filing wiitten statement. Thereafter on January 15,1982 the defendant no. 1 filed an application before the court stating that he had deposited rent upto November 1981 with the Rent Controller and he had deposited in court from December 1981. On February 3,1982 the defendant no. 1 filed an application under section 17 (2a) of the Premises Tenancy Act praying for instalment. On'the same date he filed another application under section 5 of the Limitation Act and in this application he prayed for condonation of the delay in depositing all arrears of rent on account of wrong legal advice. The said application under section 5 of the Limitation Act was subsequently amended by another application. The applications were opposed by the plaintiff-petitioner. The learned Munsif, 3rd Court, tamluk by the impugned order dated July 26, 1982 allowed the application under section 5 of the Limitation Act and condo-ned the delay and gave liberty to the defendant to deposit the arrears of rent under section 17 (1) of the West Bengal Premises Tenancy Act. The learned Munsif has directed the hearing of the application under section 17 (2a) of the West Bengal premises Tenancy Act (hereinafter referred to as the Act.)

(2.) MR. Roy, learned Advocate for the petitioner has argued that the learned Munsif has acted illegally and with material irregularity and the impugned order should be set aside. His argument is that the defendant no. 1 did not show any cause as to why there was delay in filing the application require under section 17 (2a) of the premises Tenancy Act. The defendant no. 1 has to explain each day's delay as the application under section 17 (2a) should have been filed within one month of the service of the writ of summons. Mr. Roy has argued that the delay in making deposits cannot be condoned under section 5 of the Limitation Act.

(3.) MR. Sahu, learned Advocate for the opposite party has argued that the application under section 5 of the Limitation Act was for condonation of delay in filing the application under section 17 (2a) of the Act. The learned Munsif had every jurisdiction to consider the said application and he was satisfied about the grounds urged and this Court should not, in exercise of the power under section 115 of the Code of Civil procedure, interfere with the said order. It has been further argued that the plaintiff has not at all been prejudiced as the application under section 17 (2a) is awaiting decision. Mr. Sahu has referred to the case of State of Bihar vs. Birla Gwalior p. Ltd. and Ore. A. I. R. 1974 Calcutta 202 and the case of Shanti Prosad Gupta vs. Deputy Director of Consolidation Camp at Meerut and Ors. 1981 (Supra) S. C. C. 73 in support of his contention. Mr. Sahu has further argued that the defendant has given reasons why he could not file the application during the prescribed period but through mistake the prayer portion had not been properly made. The defendant should be given an opportunity to nuke further amendment of the application under section 5 of the Limitation Act to make a proper prayer therein.