w w w . L a w y e r S e r v i c e s . i n



Debabrata Dutta v/s Joy Gopal Saha & Others


Company & Directors' Information:- J N GOPAL AND CO PRIVATE LIMITED [Active] CIN = U74899DL1981PTC012476

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- H K DUTTA & COMPANY PVT LTD [Active] CIN = U36911WB1994PTC066006

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- R D DUTTA AND CO PRIVATE LIMITED [Active] CIN = U74899DL1982PTC014209

Company & Directors' Information:- GOPAL CO PVT LTD [Strike Off] CIN = U00513MP1948PTC000460

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    C.O. No. 2203 of 2019

    Decided On, 24 July 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SABYASACHI BHATTACHARYYA

    For the Petitioner: Sounak Bhattacharya, Advocate. For the Opposite Parties: Probal Kumar Mukherjee, Supratik Shyamal, Advocates.



Judgment Text

1. The defendant/tenant in an eviction suit, filed by the opposite parties only on the ground of default in payment of rent, have preferred the instant revisional application.

2. By the impugned order, the petitioner's application under Section 5 of the Limitation Act, for condonation of delay in filing applications under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "the 1997 Act") was dismissed on contest. Accordingly the applications under Section 7(1) and under Section 7(2) were held to be not maintainable, being barred by limitation. By the same order, the trial court also struck out the defence of the defendant/petitioner against delivery of possession, as a consequence of the dismissal of the other applications.

3. The facts of the case in a nutshell are as follows. The opposite parties filed the eviction suit on November 16, 2016. The defendant entered appearance on February 16, 2017, but submitted his written statement on November 29, 2017. Such written statement was, however, accepted by the court.

4. The defendant/petitioner waited for about two years from the date of entering appearance and filed two applications, respectively under Section 7(1) and under Section 7(2) of the 1997 Act, coupled with an application under Section 5 of the Limitation Act for condonation of delay in filing those.

5. By the impugned order, being Order No.19 dated May 27, 2019, the trial Judge dismissed the application for condonation of delay and consequentially the applications under Section 7(1) and 7(2)of the 1997 Act. The trial Judge thereafter went on to strike out the defence of the defendant/petitioner against delivery of possession by suo moto invoking the provision of Section 7(3) of the said Act.

6. Learned counsel for the petitioner argues that the trial Judge acted without jurisdiction in striking out the defence of the petitioner under Section 7(3) without adjudicating the application under Section 7(2)on merits. It is argued that, since an application under Section 7(2) of the 1997 Act was filed by the petitioner raising certain issues, it was the duty of the trial court to decide upon such contentions first, before striking out the defence of the petitioner.

7. Learned counsel for the petitioner submits that the trial court adopted a strict view on condonation of delay, contrary to the well-settled liberal view reiterated by the Supreme Court and various High Courts. In this context, learned counsel cites the judgment of Sarat Chandra Nanda vs. Puspalata Nanda reported at 2009 SCC OnLine Ori 288. In the said case, a learned Single Judge of the Orissa High Court relied upon a judgment of the Supreme Court, reported at (1998) 7 SCC 123 [N. Balakrishnan vs. M. Krishnamurthy], wherein it was observed that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy, the court must show utmost consideration to the suitor.

8. Learned counsel for the petitioner next cites the judgment of Concord of India Insurance Co. Ltd. vs. Nirmala Devi (smt) and others, reported at (1979) 4 SCC 365, wherein it was observed that the law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay, although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question, it was held, whether the mistake was bona fide or was merely a device to cover an ulterior purpose, such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The court must, of course, see whether in such cases there is any taint of mala fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under Section 5 of the Limitation Act is being considered.

9. Learned counsel next cites a judgment reported at (1972) 1 SCC 366 [State of West Bengal Vs. Administrator, Howrah Municipality and others], for the proposition that if a party had acted in a particular manner on a wrong advice given by his legal adviser, he cannot be held guilty of negligence so as to disentitle the party to plead sufficient cause under Section 5 of the Limitation Act. If the appellant acted on legal advice, it cannot be considered to be a circumstance showing negligence on the part of the litigant, in that case the State. At the utmost what could be said is that it was misguided by a wrong advice by its counsel. The appellant having shown sufficient cause and it not being possible to impute to the appellant want of bona fides or such inaction or negligence as would deprive them of the protection of Section 5 of the Limitation Act, the delay ought to have been condoned.

10. On the strength of such authority, it is submitted that the petitioner ought to have been given a chance to comply with the provisions of Section 7(2) upon a proper adjudication of such application, instead of adopting a hyper technical view, as done by the court below.

11. Controverting such submissions, learned senior counsel appearing for the plaintiffs/opposite parties argues that the only ground on which the eviction suit was filed was default in payment of rent and as such, the plaintiffs/opposite parties would be non-suited for no fault of theirs, if the gross negligence shown by the petitioner is condoned.

12. It is submitted that the trial court acted within its jurisdiction in striking out the defence of the petitioner as a consequence of dismissing the applications under Section 5 of the Limitation Act and Sections 7(1) and 7(2) of the 1997 Act. There was no bar to the court suo moto striking out such defence for non-compliance of Section 7(1) and Section 7(2), as is evident from the language of sub-section (3) of Section 7 itself.

13. It is further argued that the only ground taken by the petitioner in his application for condonation of delay was ignorance of law, which is not a valid ground in law for condonation of delay. In this context, learned senior counsel cites a judgment reported at (1975) 4 SCC 378 [The Swadeshi Cotton Mills Co. Ltd. Vs. The Government of U.P. and others], wherein it was held that ignorance of law was not an excuse for not taking appropriate steps within limitation. The explanation given by the petitioner in the said case for the long delay was that he did not know the correct legal position and came to know about the same after a decision of the Allahabad High Court. The Supreme Court held that every individual is deemed to know the law of the land and courts merely interpret the law and do not make law. Therefore, the argument that the appellant did not know the true legal position, was not one that could be accepted in law.

14. Learned senior counsel next cites a judgment of a single bench of the Allahabad High Court reported at 1983 SCC OnLine ALL 254 [Ram Prasad Vs. D.D.C. and others], wherein a learned Single Judge held that ignorance of law was no excuse and the benefit of Section 5 of the Limitation Act was not available on the ground of ignorance of law. It was further held that if the appellant in that case did not know the law, it was necessary for him to communicate all the facts to his counsel so that he might take all the legal steps.

15. Learned senior counsel next cites a judgment of the Punjab and Haryana High Court, reported at 2013 SCC OnLine P&H 22717 [Vijay Kumar Vs. Swarna Rani & others], for the same proposition, that ignorance of law is not an excuse for condoning delay. The petitioner in the said case was having the services of a lawyer at his disposal and the court held that it did not lie in his mouth that he was ignorant about the period of limitation.

16. Lastly, learned senior counsel cites the judgment of a co-ordinate bench of this court, reported at (2018) 3 CHN 461 [Mithun @ Akhtar Ali vs. Sk. Aziz Haque & Ors.], wherein it was reiterated that ignorance of law cannot be an excuse for the litigant. In the said case, it was further held that Section 5of the Limitation Act had no applicability to Section 7(1) of the 1997 Act and the court was justified in striking out the defence under Section 7(3) of the said Act.

17. In this context, the provisions of Section 7 of the 1997 Act are relevant and are set out below:

"S 7. When a tenant can get the benefit of protection against eviction. - (1) (a) On a suit being instituted by the landlord for eviction on any of the grounds referred to in section 6, the tenant shall, subject to the provisions of sub-section (2) of this section, pay to the landlord or deposit with the Civil Judge all arrears of rent, calculated at the rate at which it was last paid and up to the end of the month previous to that in which the payment is made together with interest at the rate of ten per cent per annum.

(b) Such payment or deposit shall be made within one month of the service of summons on the tenant or, where he appears in the suit without the summons being served upon him, within one month of his appearance.

(c) The tenant shall thereafter continue to pay to the landlord or deposit with the Civil Judge month by month by the 15th of each succeeding month, a sum equivalent to the rent at that rate.

(2) If in any suit referred to in sub-section (1), there is any dispute as to the amount of the rent payable by the tenant, the tenant shall, within the time specified in that sub-section, deposit with the Civil Judge the amount admitted by him to be due from him together with an application for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of the application, the Civil Judge shall, having regard to the rate at which rent was last paid and the period for which default may have been made by the tenant, make, as soon as possible within a period not exceeding one year, an order specifying the amount, if any, due from the tenant and, thereupon, the tenant shall, within one month of the date of such order, pay to the landlord the amount so specified in the order.

Provided that having regard to the circumstances of the case, an extension of time may be granted by the Civil Judge only once and the period of such extension shall not exceed two months.

(3) If the tenant fails to deposit or pay any amount referred o in sub-section (1) or sub-section (2) within the time specified therein or within such extended time as may be granted, the Civil Judge shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.

(4) If the tenant makes deposit or payment as required by sub-section (1) or sub-section (2), no order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant, shall be made by the Civil Judge, but he may allow such cost as he may deem fit to the landlord:

Provided that the tenant shall not be entitled to any relief under this sub-section if, having obtained such relief once in respect of the premises, he again makes default in payment of rent for four months within a period of twelve months or for three successive rental periods where rent is not payable monthly. "

18. In the present case, it is seen that the petitioner was a habitual defaulter. Even after entering appearance on February 16, 2017, he filed his written statement after more than nine months, on November 29, 2017.

19. Not stopping there, the petitioner waited for an inordinately long period thereafter and filed the applications under Section 7, sub-sections (1) and (2) as late as on February 13, 2019, along with an application for condonation of delay.

20. Although it is well-settled that the principle, that ignorance of law is no excuse for not complying with a statutory provision, is diluted by the settled juristic view that wrong advice of a counsel can be set up as a defence, the former, rather than the latter principle, applies to the present case. It is seen from the application for condonation of delay that the only ground for delay, repeatedly iterated in the application, was the ignorance of law of the petitioner, which is not a valid ground in law.

21. Nowhere in the application for condonation did the petitioner plead that he was wrongly advised by the counsel about filing the applications under Section 7, sub-sections (1) and (2) in time.

22. Despite filing his written statement on November 29, 2017 (which was also considerably late), the petitioner took a chance for over one-and-half years thereafter and only then filed the applications under Sections 7(1) and (2) of the 1997 Act.

23. As is evident from the affidavits supporting the applications filed by the petitioner in the court below as well as in this court, the petitioner was represented by a constituted attorney who runs a business by way of occupation and is sufficiently educated to sign the applications in English.

24. Moreover, since the petitioner was assisted by legal advice to file his written statement and also prayed for acceptance of such belated written statement, it cannot not be presumed that the petitioner was wrongly advised by his counsel to wait for one-and-half years more to file the applications-in-question.

25. Alleviating factors such as illiteracy, poverty or other components which could indicate that the petitioner was underprivileged and did not have proper legal assistance or the means to be appropriately advised, or was rustic or nave, are entirely absent in the present case. Thus the petitioner has to own up to the delay caused in filing the applications-in-question.


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26. As regards the suo moto power of the trial court to strike out the defence of the petitioner against delivery of possession, sub-section (3) of Section 7 of the 1997 Act makes it amply clear that such power is vested in the court as a corollary of the dismissal of applications under Section 7(1) and Section 7(2) of the said Act and non-compliance of such provisions, and need not be predicated on a prior application. 27. The argument, that the trial court acted without jurisdiction in striking out the defence by invoking Section 7(3) without adjudicating the application under Section 7(2) on merits, does not hold good, since there was no scope for such adjudication on merits as the defendant/petitioner lost such chance by occasioning an inordinate delay in filing the said application. Since the applications under Section 7(1) and Section 7(2) were dismissed as time-barred upon a consideration of the condonation application on merits, it did not lie in the mouth of the petitioner that there was no adjudication of the said substantive applications on merits. 28. As such, the trial court was justified in rejecting the condonation application and the connected applications under Section 7(1) and 7(2) of the 1997 Act, and consequentially in striking out the defence of the petitioner. 29. Accordingly, C.O. No.2203 of 2019 is dismissed without, however, any order as to costs. 30. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
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