- (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 2 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. 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) 3 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.
(3.) 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.;