Judgment:
1. This application is at the instance of the defendant and is directed against the order dated June 30, 2010 passed by the learned Judge, Presidency Small Causes Court, Calcutta in Ejectment Suit No.5 of 2007 thereby rejecting an application under Section 5 of the Limitation Act, an application under Section 7(1) of the West Bengal Premises Tenancy Act and allowing the application under Section 7(3) of the West Bengal Premises Tenancy Act, 1997 on contest.
2. The short fact is that the plaintiff/opposite party instituted an ejectment suit being Ejectment Suit No.5 of 2007 on the ground of default, reasonable requirement, etc. The petitioner was contesting the said suit by filing a written statement. Even it participated in the matter of amendment of the plaint by filing a written objection to the application for amendment of the plaint. But the petitioner did not take any step under Section 7(1) of the Act of 1997. For that reason, the opposite party filed an application under Section 7(3) of the said Act of 1997. It is only at that time when the petitioner filed an objection against the petition under Section 7(3) of the Act of 1997 denying that it is a defaulter in payment of rent, it filed an application under Section 7(1) of the Act of 1997 praying for permission to deposit the entire arrears of rent at a time along with an application under Section 5 of the Limitation Act for condonation of delay in filing the application under Section 7(1) of the said Act. All the three petitions have been disposed of by a composite order, at first, rejecting the application under Section 5 of the Limitation Act and the application under Section 7(1) of the Act of 1997 and then allowing the application under Section 7(3) of the said Act. Being aggrieved by the impugned order, the petitioner has preferred this application.
3. Mr. Banerjee, appearing on behalf of the petitioner, submits that a client should not suffer for default on the part of the lawyer. The defendant being a company it had to depend on the advice of the legal expert and since proper advice was not tendered, it could not take appropriate steps under Section 7(1) of the said Act within 30 days from the date of appearance. In appropriate cases, the Court may allow the prayer for condonation of delay. Mr. Banerjee also submits that though the provisions of Section 7(3) of the said Act lays down that in case of noncompliance of Section 7(1) and 7(2) of the Act, the Court shall strike out defence, according to the decision of the Apex Court, the exercise of such power is directory and not mandatory. So, the learned Trial Judge should have taken a liberal approach in disposing of the application under Section 7(1) of the Act along with the application under Section 5 of the Limitation Act. On the other hand, Mr. Sarkar appearing on behalf of the opposite party, submits that as per scheme of the Act, Section 7(1) must be complied with within 30 days from the date of service of summons/appearance. Since the petitioner did not comply with such provisions, according to the decision of the Apex Court, the defence against the delivery of possession shall be struck off. So, the learned Trial Judge has rightly passed the impugned order. So, the following questions have arisen for decision in this application :-
1. Whether the learned Trial judge was justified in rejecting the application under Section 5 of the Limitation Act;
2. Whether the learned Trial judge was justified in rejecting the application under Section 7(1) of the Act of 1997; and
3. Whether the learned Trial judge was justified in allowing the application under Section 7(3) of the said Act of 1997.
4. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the opposite parties filed the suit for recovery of possession on the ground of default, reasonable requirement, etc. It does not appear that summons was duly served upon the opposite party but the petitioner entered appearance in the suit on June 30, 2007; though vakalatnama on behalf of the petitioner was filed on August 17, 2007. Admittedly, the petitioner is contesting the said suit by filing a written statement. It took other steps such as filing a written objection against the petition for amendment of the plaint but it did not take any step in compliance with provisions of Section 7(1)(b) of the Act of 1997. It took steps under Section 7(1) of the said Act of 1997 along with an application under Section 5 of the Limitation Act at the time of filing a written objection against the petition under Section 7(3) of the said Act. From the date of appearance, if for arguments sake, it is held that 30 days are to be deducted for filing an application under Section 7(1) of the said Act, then there was a delay of 179 days in filing the application under Section 7(1) of the said Act. The petitioner contended that there was a delay of 162 days, possibly, it calculated the days from the date of filing the vokalatnama after deducting 30 days therefrom. Without going much into the technicalities of such calculation, it could well be decided that at least, as per admission, there was a delay of 162 days in filing the application under Section 7(1) of the said Act. Now, therefore, I should consider first, whether as per materials on record, the petitioner has been able to show sufficient cause for condonation of delay of 179/162 days.
5. The contention of the petitioner is that it being a company is a layman with regard to the law matters and as such it depended on the advice of the lawyer engaged by it. But the lawyer did not advise it properly and as such, there was such delay in filing the appropriate application under Section 7(1) of the said Act. For that reason, without praying for instalment it is willing to make deposit all the arrears of rent from May, 2003 till February, 2008 at a time. Admittedly, suit was filed for recovery of possession contending, inter alia, that the defendant is a defaulter in payment of rent since May, 2003. Thus, by the said application under Section 7(1) of the said Act, the defendant wanted to make deposit of a sum of Rs.1,62,690/- at a time.
6. Mr. Banerjee has referred to the following decisions in support of his contention:-
1. Decision of Mata Din v. A. Narayanan reported in AIR 1970 SC 1953, particularly paragraphs 6 & 7. Thus, he submits that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that a mistake of counsel by itself is always a sufficient ground.
2. Decision of M/s. Concord of India Insurance Co. Ltd. v. Nirmal Devi & ors. reported in AIR 1979 SC 1666, particularly paragraphs 6 & 7.
By referring to the above paragraphs of the said decision, Mr. Banerjee submits that a company relies on its legal advisor and the managers expertise is in company management and not law.
3. Decision of M/s. B. P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick and anr. reported in AIR 1987 SC 1010.
By referring to the paragraph 14 of the said judgment, Mr. Banerjee contends that the words shall order the defence against delivery of possession to be struck out occurring in Section 7(3) have to be construed as a directory provision and not a mandatory provision as the word shall has to be read as may. Such a canon of construction is warranted because otherwise the intendment of the legislature will be defeated and the class of tenants for whom the beneficial provisions were made by the mandatory and the Amending Act will stand deprived of them.
7. 4. Decision of Miss Santosh Mehta v. Om Parkash and ors. reported in AIR 1980 SC 1664.
8. By referring this judgment Mr. Banerjee submits that the striking out defence of a tenant is a harsh extreme and having regard to the benign scheme of the legislation, this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent. That is why, a discretion is vested, not a mandate imposed. Striking out a partys defence is an exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent; and 5. Decision of Sk. Maison & ors. v. State of West Bengal & ors. reported in 2009 (1) CLJ (Cal) 33. By referring to the paragraph 15 of the said decision, Mr. Banerjee submits that one of the Judges of this Honble Court has decided that this Court being bound by both the decisions would prefer to be guided by the law laid down in Ponnuswami (supra) not because of the numerical supremacy of dates constituting the Bench but to this Court it appears to be better in point of law.
9. Per contra, Mr. S. P. Sarkar, learned Advocate appearing on behalf of the opposite party, refers to the following decisions:
1. Decision of Salil Dutta v. T. M. And M.C. Pvt. Ltd. reported in (1993) 2 SCC 185.
He submits that an Advocate is the agent of the party. He acts and statements made within the limits of authority given to him are the acts and statements of the principle, i.e., the party who engaged him. He also submits that by putting the entire blame upon the Advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted, and
2. Decision of Manju Choudhary & anr. v. Dulal Kumar Chandra reported in AIR 1988 SC 602.
10. He submits that for failure of a tenant to deposit arrears of rent within 15 days, the Court is duty bound to strike off defence.
11. Having gone through the abovenamed decisions cited by the parties and in consideration of the materials on record for practical purposes for disposal of this application, I hold that in appropriate situations, Court may condone the delay in filing an application under Section 7(1) of the said Act when a tenant is able to justify for not taking steps in accordance with the provisions of the Section 7(1) of the said Act. There is no doubt that as per catena of decisions of the Apex Court though the word shall is appearing in Section 7(3) of the Act of 1997, the use of the word shall, keeping in view the object of the Act of 1997 shall be construed as directory and not mandatory.
12. The cause for delay in filing the application under Section 7(1) of the Act appears to be because of the contention that the petitioner being a company is a layman and its Advocate did not render appropriate legal advice though the company is contesting the suit. In appropriate situations, non-taking of proper steps by a lawyer, delay in taking appropriate steps as per provisions of a law could be condoned. The decision reported in Mata Din (supra) refers to extension of period for filing an appeal when the learned counsel on behalf of the appellant committed a mistake for choosing a wrong forum to prefer an appeal. In that situation, the delay was condoned. But it is not the situation in the instant case at all. Here no application for tendering current rent or arrears of rent was filed at all initially. A step under Section 7(1) of the said Act was taken when the opposite party filed an application under Section 7(3) of the Act. At that time by filing a written objection against the petition under Section 7(3) of the Act, the petitioner contended that there is no arrear of rent at all. At the same time, while an objection is filed against the said petition contending such a stand, the petitioner filed an application under Section 7(1) of the said Act praying for deposit of arrears of rent from May, 2003 to February, 2008 amounting to Rs.1,62,690/- at a time after condoning the delay. Such inaction on the part of the tenant for not complying with Section 7(1) for a period of 179 days or 162 days, cannot be said to be bona fide at all but to adopt a dilatory tactics to make delay in disposal of the said ejectment suit. Therefore, such delay/inaction for such long period can be termed as nothing but gross negligence on the part of the petitioner. Therefore, the decision of Mata Din (supra) is not applicable in the instant situation.
13. The decision of M/s. Concord of India Insurance Co. Ltd. (supra) lays down that a company relies on a legal advisor and so if no proper advice is tendered, the delay could be condoned. But this decision also lays down that if there is gross delay too patent even for layman or if there is incomprehensible indifference the shield of legal opinion may still be vulnerable. In the instant case, since the petitioner did not take any step for a long time its contention that its lawyer did not give proper advice for such long period cannot be accepted. The ground of mistake on the part of the counsel as taken by the petitioner cannot be accepted in the situation. Therefore, the decision of M/s. Concord of India Insurance Co. Ltd. (supra) will not be of much help to the petitioner.
14. The decision Miss Santosh Mehta (supra), I hold, will not be much help to the petitioner because in that case the tenant, a working lady paid rents to her advocate regularly but the learned Advocate did not deposit the same in Court or paid to the landlord. This is not also the situation. So, this decision will be of no help to the petitioner.
15. In consideration of the above facts situations and the proposition of law, it is crystal clear that the petitioner took steps under Section 7(1) of the said Act only at the time of filing a written objection against the petition under Section 7(3) of the said Act. That too after a lapse of 179/162 days. Since Section 7(1) gives protection in favour of the tenant in case of first default, in taking such benefit of such section, it must be complied with as per provisions of Section 7(1)(b) of the said Act, i.e., within 30 days from the date of appearance. Condonation of delay could be made in appropriate cases but in the instant case there being no step for such long period though the petitioner was contesting the suit on other points, it could well be decided that inaction on the part of the petitioner was not bona fide at all. The ground assigned by the petitioner for non12 taking steps for such a long period cannot be believed.
16. Therefore, it could well be held that there was gross negligence on the part of the petitioner to take appropriate steps under Section 7(1) of the said Act and that it showed wilful default in complying with Section 7(1) of the said Act.
17. In the case of Mrs. Manju Chaudhary & anr. (supra) the Apex Court upheld the order of striking out of defence for failure of the tenant to deposit arrears of rent within 15 days in accordance with the Bihar Building (L.R.& E.) Control Ordinance, 1982. So, there being gross negligence on the part of the petitioner in taking appropriate steps under Section 7(1) of the Act at the appropriate time, I am of the view that the learned Trial Judge was justified in rejecting the application under Section 5 of the Limitation Act. Causes shown by the petitioner cannot be considered as sufficient for condonation of the delay. Consequently, the application under Section 7(1) of the said Act was also liable to be rejected. So, the learned Trial Judge was justified in allowing the application under Section 7(3) for noncompliance of Section 7(1) of the Act of 1997.
18. The learned Trial Judge has come such findings making discussion elaborately in the impugned judgment and on scrutiny of the same, I do not find that there is any perversity in the said findings. The learned Trial Judge has not committed any errors of law in arriving at a conclusion. The impugned order does not call for any interference at all. Therefore, I am of the view that this application is devoid of merits.
19. Accordingly, this application is dismissed. Considering the circumstances, there will be no order as to costs.
20. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.