A.P. Bhattacharya, J. - (1.) This Rule is directed against the order of Sri S.K. Banerjee, Munsif, 1st Court of Midnapore, striking out the defence against delivery of possession filed by the defendant-petitioner. The order is impugned as without any basis and in clear contravention of the provisions of S- 17(3) of the West Bengal Premises Tenancy Act, 1956. The present petitioner while objecting to the plaintiff's petition under Section 17(3) of the Act has made an application under Section 17(2A) of the West Bengal Premises Tenancy Act, 1956 supported by an application under Section 5 of the Indian Limitation Act for condonation of the delay in making the application under Section 17(2) read with Section 17(2A) of the West Bengal Premises Tenancy Act, 1956.
(2.) Mr. Panda appearing in support of the Rule contends that the learned court below was wrong in rejecting the application under Section 5 and the application under Section 17(2) and (2A) of the West Bengal Premises Tenancy Act, 1956. It has been contended that Indian Limitation Act would apply to an application under Section 17(2A) of the Act. The relevant facts are as follows:- A suit for ejectment was filed on 13th February, 1973. The date of appearance of the petitioner in that suit was 13th March, 1973. The petitioner made an application under Section 17(2A) of the W. B. Premises Tenancy Act, 1956 on 17th February, 1973 and a petition under Section 5 of the Limitation Act was presented on 6-7-74. The provision of Section 17(1) makes it obligatory on the tenant to deposit in court within one month of appearance in the suit the rent in respect of which the tenant,may have made default together with some statutory interests. This the petitioner has net done nor did he raise any dispute under Section 17(2) within the period of one month, as provided in Section 17(1). In fact, the petitioner made an application under Section 17(2A) of the Act long after the expiry of one month on 17-12-73 and invited the court to accept the deposit by extending the time specified in Section 17(1). The court held that the petition could not be entertained under Section 17(2A). It will appear from the provision of Section 17 (2A) of the Act that the court may by order extend the time specified in sub-section (1) or sub-section (2) of Section 17 for deposit of the money. But this power of the court is controlled by Section 17(2B) which provides as follows:- "No application for extension of time for the deposit or payment of any amount under Clause (a) of sub-section (2A) shall be entertained unless it is made before the expiry of the time specified therefor in sub-section (1) or sub-section (2).........."
(3.) Thus the power of the court under Section 17(2A) is, by express provision in Section 17(2B) controlled and is directed to be exercised subject to the conditions imposed in Section 17 sub-section (2B). The condition precedent for exercise of the said power is incorporated in the provisions of Section 17, sub-section (2B). It is therefore, not a question of merely applying the provisions of Section 5 of the Limitation Act. Mr. Panda learned Counsel for the petitioner, relies upon a decision reported in 76 CWN 486, M/s. Pokarmal Gurudayal v. Sagarmal Bengani , where it has been held that though the provisions of Section 17B(1) provides for making of an application thereunder a period of 60-days from the relevant date, this period may be s extended and an application thereunder beyond the period can be condoned by applying Section 5 of the Limitation Act. It is the established principle of law that Section 5 of the Limitation Act could apply for condonation of delay where there is any period of limitation provided in the West Bengal Premises Tenancy Act, 1956. But, as I have already observed, it is not a question of limitation in the instant case-The power of the court under Section 17(2A) which is invoked on behalf of the petitioner is to be exercised by express provisions under the statute on the conditions laid down in Section 17(2B) of the Act itself. The application under Section 17(2A) cannot be entertained unless the said condition as imposed by sub-section (2B) is fulfilled. The court has, therefore, no power under Section 5 of the Limitation Act to extend the period in the absence of fulfilment of the condition under Section 17(2B). The trial court has, accordingly, very rightly dismissed the application of the petitioner under Section 17(2A) of the West Bengal Premises Tenancy Act, 1956.;