Pradyot Kumar Banerjee, J. - (1.) This Rule is directed against an order passed by the learned Judge, City Civil Court under Section 17(2) of the west Bengal Premises Tenancy Act. It appears that the summons was served on the usual process and by registered post.
(2.) The postal acknowledgement shows that the defendant got the summons on 6th of October, 1975 and he entered appearance on 2nd of January, 1976. While appearing in the suit he did not say that the copy of the plaint was not given by the plaintiff but was admittedly given on the 8th of March, 1976. An application under Section 17(2) of the Act wag filed eighteen days after 2nd of January, 1976 when he entered appearance and there was a delay for eighteen days after one month. Curiously enough the learned Judge found that even on application under Section 5 of the Limitation Act is not necessary as the copy of the plaint was served on the 8th of March, 1976. The period of Limitation was countered under Section 17(1) from the said date and not earlier. This finding, in my opinion, is contrary to the statutory provision itself. The statute under Section 17(1) makes it clear that on the suit or proceeding being instituted by the landlord on any ground referred to in Section, 13 the tenant shall subject to the provision of Sub-section (2) within one month from the date of service of writ of summons on him or where he appears in the suit or proceeding without the writ of summons being served on him within one month from the date of appearance , deposit in court etc. Therefore, there is no option on the part of the court to extend the statutory provision by saying that the copy of the plaint was not served with the writ of summons, or on the date of appearance of the defendant, Section 17(1) will have no application. In my opinion, the learned Judge is wholly wrong in taking that view. This is a statutory provision and cannot in any circumstances be extended unless there is a statutory power to do so. Under Section 17(1) there is no power to the Court, except an application is made under any other provisions of the Act or under Section 3 of the Limitation Act if the Court feels that .sufficient cause has been made out for such purpose. After saying that no application under Section 5 of the Limitation Act is necessary the Court has no power to extend the time under the statutory provision.
(3.) The Rule is therefore made absolute. The order of the learned Judge is set aside. There will be no order as to costs.;