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TMI Blog1970 (8) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... ord, transferred and/or assigned and/or sub-let in whole or in part the said shop room to Chunilal Agarwalla and/or to Kamroop Transport Corporation and others. (2) The applicant has failed and neglected to pay and has made default in payment of rent to the plaintiff since September, 1967. 4. Prior to October, 1967, Mr. T. K. Ghose, Barrister-at-Law. was a Receiver of the premises in suit. The Receiver was discharged and by a letter dated the 28th September, 1967, the Receiver intimated the petitioner of the fact of his discharge and directed the applicant to pay rent to the plaintiff. The applicant tendered the rent for the month of October, 1967, to the plaintiff, who wrongfully refused to accept the same. The rent for the month of November, 1967, was also tendered by money order by the defendant applicant but was refused by the plaintiff landlord. Since then the applicant has been depositing the rent with the Rent Controller. The Writ of Summons in suit was served on the applicant on or about 17th July, 1969. On 23rd September. 1969, the applicant filed its written statement in the suit. The applicant admits that the time to deposit rent under Section 17(1) of the West Bengal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made although not prescribed by the Limitation Act, shall be deemed to have been prescribed under the Limitation Act by virtue of the provisions of Section 29(2) of the Limitation Act. 1963, which provides as follows:-- "29 (2). 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 Section 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as and to the extent to which, they are not expressly excluded by such special or local law." 8. Section 3 of the said Limitation Act which is thus attracted to the period of limitation prescribed under Section 17(2B) of the West Bengal Premises Tenancy Act is set out hereunder:-- "3. (1) Subject to the provisions in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l apply unless they are contrary to or repugnant to specific provisions relating to the same contained in the West Bengal Premises Tenancy Act, 1956. There is no provision contained in the West Bengal Premises Tenancy Act, 1956, which runs contrary to the provisions laid down in Section 5 of the Limitation Act 1963. In that view of the matter, in my opinion, Section 5 of the Limitation Act is applicable to the present application. 11. The provisions relating to limitation appear only in Sections 7(1), 17(1), 17(2A), 17(2B), 22, 27, 29(2) and 31. It is clear, therefore, that there is no provision similar to that contained in Section 5 of the Limitation Act, which is set out hereunder: "5. Any appeal or any application, other than an application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." 12. Mr. Kapur submitted that the words "subject to the provisions of this Act" excludes the application of the said provisions of Section 5 of the Limitation Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is not binding on me. It is also said that the provision of Section 39 of the West Bengal Premises was not placed before his Lordship, The said section as we have seen expressly makes all the provisions of the Limitation Act applicable inter alia to all applications under the said Act subject to the special provisions contained in the said Act with regard to the said applications. 16. It was contended that a judgment which had omitted to take note of a statutory provision applicable to the matter under consideration would be 'per incuriam' and would not be binding on any other learned Judge. (See The Young v. Bristol Aeroplane Co. Ltd. per Lord Green M. R., (1944) 2 All ER 293 at p. 300). The said conclusion of Ramendra Mohan Datta, J. it is contended, is directly contrary to the ratio decidendi of the Supreme Court in the case of . It was contended that ordinarily a decision of a single Judge should be followed by another single Judge unless the earlier decision was not given per incuriam---see Suresh v. Bank of Calcutta Ltd, (1950) 54 Cal WN 832; Virjibandas Mulji v. Bisseswarlal Hargobind, 24 Cal WN 1032 = (AIR 1921 Cal 169). See also in this connection the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng effect, viz., "The binding effect of a decision does not depend upon whether a particular argument was considered therein or not provided that the point with reference to which an argument was subsequently, advanced was actually decided." 19. In the said case of Jatindra Nath Samanta, Datta J. decided that Section 5 of the Limitation Act does not apply to the applications made under Section 17 of the West Bengal Premises Tenancy Act. In my opinion in view of the ratio in , I have to follow the said judgment of Ramendra Mohan Datta, J. 20. However, I must state here that the grounds made by the defendants for condonation of delay, viz., (1) Thus Rent Court lawyer made a bona fide mistake in thinking that all deposits with the Rent Controller were valid and therefore had advised the defendant that it was not necessary to make an application under Section 17(1) of the Act and (2) the said mistake was discovered at a conference held by the defendant with its High Court lawyer on 18th December, 1969 are not sufficient reasons within the contemplation of Section 5 of the Limitation Act. 1963 for condonation of delay in making the present application. Not every mistake or even bona f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntary affidavit affirmed on 27th February 1970. This affidavit was filed after the application was opened and was heard in part on a previous occasion. The alleged mistake is verified to be true to the knowledge of the deponent of the said affidavit, viz., a partner of the defendant firm in view of the information received from the lawyer. The aforesaid allegation in my opinion cannot be relied upon for the purpose of the present application under Section 5 of the Limitation Act. In any event in view of the Special Bench decision reported in Siddheswar v. Prakash, wherein it was decided that after the institution of the suit rents had to be deposited in Court under the provisions of the Rent Act the alleged advice given by the alleged lawyer seems to be given negligently and without due care. 24. The ground of invalidity of the deposits made is taken out by the plaintiff in the affidavit filed in the application under Chapt. XIIIA in August. 1969 and the said affidavit was read and replied to by the defendant but even then the defendant was careless enough not to enquire into the question as to why the plaintiff was alleging that the deposits which had been made by him were in-val ..... X X X X Extracts X X X X X X X X Extracts X X X X
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