RASHAN AKTAR KHATOON Vs. KRISHNADAS ROY
HIGH COURT OF CALCUTTA
Rashan Aktar Khatoon
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Ramendra Nath Dutt, J. -
(1.)The opposite parties filed an application under Sec. 5 of the Calcutta Thika Tenancy Act against the Petitioner for ejectment. The application was allowed but possession had not till then been taken when the Petitioners filed an application under Sec. 7A of the Act for setting aside the order of ejectment. The Thika Controller made an order on September 2, 1970, directing the Petitioners to deposit Rs. 3,170 on account of arrears of rent, interest and costs within sixty days from that date. The Petitioners failed to make the deposit on the due date, namely, November 2, 1970, but on November 3, 1970, filed an application under Sec. 151 of the Code of Civil Procedure for condonation of the delay and for permission to deposit. The application was resisted by the opposite parties. The Thika Controller rejected the application. The Petitioners preferred an appeal, but the appeal was dismissed. The Petitioners thereafter obtained this Rule.
(2.)The Petitioners filed the application under Sec. 7A of the Act. The Thika Controller made an order directing the Petitioners to deposit Rs. 3,170 within sixty days from the date of the order. This was in terms of Sec. 7A(2)(b) of the Act. The deposit was not - made within time. The question for consideration is if the Thika Controller has the power to extend the time for making the deposit. The time within which the deposit is to be made is fixed by the Statute itself. The Controller can direct the tenant to make the deposit, 'within such time not exceeding sixty days from the date of the order'. Suppose the Thika Controller had at the initial stage given a period of thirty days. The Thika Controller can certainly extend that period upto the limit of sixty days from the date of the order. But here the question is, if he can extend the period for such deposit beyond the period of sixty days. On the face of it the Thika Controller cannot do this because that will be acting against the Statute. Mr. Jaiswal argues that in view of Sec. 29(2) of the Limitation Act, 1963, Sec. 5 of the said Act is attracted. Mr. Banerjee submits that the proceeding under Sec. 5 of the Thika Tenancy Act started before the new Limitation Act came into operation and so Sec. 5 of the Limitation Act is not attracted. Even apart from that question, neither Sec. 29(2) nor Sec. 5 of the Limitation Act has any manner of application in the instant facts. Sec. 29(2) says that where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the schedule, the provisions of Section5 will apply. Sec. 5 says that any appeal or any application may be admitted* after the prescribed period if the Appellant or the applicant satisfies the Court that he had sufficient case for not preferring the appeal or making the application within such period. So, the first requisite is the provision for an application. Here, there is no scope for an application, not to speak of any period of limitation for the application. The Petitioners were to comply with the Court's order. There is no provision for the Petitioners to make an application for extending the period for such deposit and there is no prescribed period of limitation for such an application. So, there is no scope for Sec. 5 to be attracted to the facts of the present case. There is, therefore, no substance in this argument of Mr. Jaiswal. He refers to the decision of the Rajasthan High Court in Bhonreylal v/s. Kunj Beharilal, A.I.R. 1969 Raj. 299. But there is a provision for application under Order 16, Rule 1 of the Code of Civil Procedure, and the Rajasthan High Court has held that Sec. 5 of the Limitation Act is attracted to such an application. But here, as I have said, there is no scope for an application and so Sec. 5 cannot be attracted. Mr. Jaiswal then refers to the decision of Salil Kumar Datta J. in Mrs. Gouri Bose v/s. Sukumar Ghosh : 75 C.W.N. 342. This decision appears to lay down some contradictory propositions of law. First, Salil Kumar Datta J. says that the provisions of Sec. 17(1) & (2) of the Premises Tenancy Act are mandatory and the Court has no power to extend the time limit thereby fixed. He then says that neither Sec. 148 nor Sec. 151 of the Code of Civil Procedure nor Order 47 of the Code is attracted for enlargement of time provided for in Sec. 17(1) or (2) of the Premises Tenancy Act. But, thereafter, he appears to have said that the tenant can make an application for condonation of delay in making payment or deposit of rent pursuant to an order under Sec. 17(2A) of the Act. Previous to the enactment of Sec. 17(2A) of the Act the Court could not extend the time fixed under Sec. 17(1) or Sec. 17(2) of the Act. But, after enactment of Sec. 17(2A) the Court has been given the power to extend time or to grant installments in certain circumstances for payment of the amounts due under Sec. 17(1) or Sec. 17(2) of the Act. But, there is no provision like Sec. 17(2A) in the Thika Tenancy Act and so there is no scope for extension of time for making the deposit beyond the statutory period under Sec. 7A(2)(b) of the Thika Tenancy Act. Mr. Jaiswal lastly refers to the decision of Chatterjee J. in Bireswar Choudhury v/s. Chandra Nath Basu : 65 C.W.N. 144, There Chatterjee J. held that the provisions of Sec. 6 of the Thika Tenancy Act were not directory but mandatory. But, in similar circumstances, Salil Kumar Datta J. has held in Mrs. Gouri Bose's case (2) that the provisions of Sec. 17 are mandatory and not directory. The facts in the instant case are different from the facts in those two cases and I do not think that the decision of those cases are attracted to the facts of this case. It seems to me that the Thika Controller is not competent to extend the time for deposit beyond sixty days from the date of the order, and in that view of the matter there is no reason to interfere with the orders of the Courts below.
(3.)In the result, the Rule is discharged.
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