RAMENDRA KRISHNA BOSE Vs. SM. MANJUSHREE BHATTACHARYA

JUDGEMENT

(1.) This Rule is at the instance of the defendant and it is directed against Order No. 57 dated May 25, 1977, of the learned Subordinate Judge, 4th Court, Alipore. By that order, the learned Subordinate Judge has dismissed the application of the petitioner under section 5 of the Limitation Act read with section 151 of the Code of Civil Procedure praying for condonation of the delay in making the deposit of rent for the month of March 1975 a few days beyond the time prescribed by the provisions of section 17(1) of the West Bengal Premises Tenancy Act, 1956.

(2.) It appears that the petitioner has been regularly depositing the rent with the Rent Controller, Calcutta. During the suit for ejectment, the petitioner deposited the rent for the month of March, 1975 on April 21, 1975, that is, five days beyond the time prescribed therefor. The opposite party made an application under section 17(3) of the said Act praying for striking out the defence of the petitioner against delivery of possession as he failed to deposit rent for the month of March, 1975 within the prescribed period. The petitioner also made an application under section 5 of the Limitation Act read with section 151 of the Code of Civil Procedure praying for condonation of the delay in making the deposit of rent for the said month. In the said application, it was alleged that the petitioner fell ill at Madras at the residence of his son. He could not come back to Calcutta before April 26, 1975. His daughter, Sm. Jaya Biswas was contacted at Calcutta over the telephone of April 9, 1975 and on instruction she deposited the rent for the month of March 1975 on April 21, 1975. It is not disputed that the petitioner is a heart patient. The dispute is whether the petitioner had fallen ill while he had been to his sons house at Madras. The application under section 5 of the Limitation Act read with section 151 of the Code was sworn by his daughter, Sm. Jaya Biswas

(3.) Learned Subordinate Judge could not place any reliance on the statements made by the petitioners daughter in the said application on the ground that such statements were hearsay. It was held by the learned Judge that the daughter had no direct knowledge about the alleged illness of her father at Madras and the competent witness on this point would have been his son or the attending physician, but none of them had been examined. Further, the learned Judge observed that not a scrap of paper was filed to prove the alleged illness of the petitioner at Madras. In that view of the matter, the learned Judge dismissed the said application.