Dipankar Datta, J.:— In a suit for eviction of tenant (Ejectment Suit No. 48/07), the petitioner is the defendant. After receipt of certified copy of the plaint from the trial Court, the petitioner entered appearance in the suit and filed his written statement on September 8, 2009. It has been alleged by him that summons along with the plaint has not been served upon him.
2. On or about January 7, 2010, the plaintiff (opposite party herein) filed a petition under Section 7(3) of the West Bengal Premises Tenancy Act, 1997 (hereafter the Act) urging the trial Court to strike out the defence of the petitioner. While the said petition was pending, the petitioner filed a petition under Section 7(2) of the Act on March 25, 2010. This petition was accompanied by an application under Section 5 of the Limitation Act for condoning the delay in filing the petition under Section 7(2) of the Act.
3. The petition under Section 7(2) of the Act as well as the application under Section 5 of the Limitation Act was opposed by the plaintiff in the trial Court Upon hearing the parties, the trial Court by its order dated August 18, 2010 rejected the same, without costs. The trial Court was of the view that there were serious laches on the part of the petitioner and the delay, which was largely unexplained, cannot be condoned. Mr. Chakraborty, learned senior advocate representing the petitioner, contended that the trial Court failed to consider that while considering an application seeking condonation of delay under Section 5 of the Limitation Act the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice, which in the facts of the present case, could have been achieved by awarding compensatory costs to the plaintiff. In support of his submission Mr. Chakraborty placed reliance on the decision reported in (2001) 6 SCC 176 (M.K Prasad v. P. Arumugam.). The trial Court, according to him, failed to exercise jurisdiction vested in him by not accepting the plea set up by the petitioner for condonation of delay and accordingly he prayed for quashing of the order dated August 18, 2010.
4. Mr. Routh, learned advocate appearing for the opposite party contended that the trial Court did not commit any error worthy of interference. Apart from the fact that the trial Court was right in not believing the plea set up by the petitioner seeking condonation of delay in filing the petition under Section 7(2) of the Act, it was contended that the provisions of the Limitation Act have no application to proceedings under Section 7(2) of the Act. In support of such submission, the decision of a learned single Judge of this Court reported in AIR 2009 NOC 191 (Cal) (Md. Safique v. Chowdhury Abdul Kader) was relied on. Reliance was also placed by Mr. Routh on the decisions reported in (2011) 1 WBLR (SC) 440 [Balwant Singh (dead) v. Jagdish Singh] and (1997) 7 SCC 556 : AIR 1998 SC 2276 : [1998 (4) ICC (S.C) 445] [P.K Ramachandran v. State of Kerala] to contend that discretion was rightly not exercised by the trial Court in favour of the petitioner.
5. Countering the submission of Mr. Routh on the point as to whether a petition under Section 7(2) of the Act could be received by the trial Court for adjudication after condoning the delay in its presentation, Mr. Chakraborty referred to Section 40 of the Act. According to him, attention of the learned single Judge was not drawn to this provision while the case of Md. Safique (supra) was decided. He urged the Court to declare the decision in Md. Safique (supra) per incuriam.
6. While replying to a query of Court as to whether exercising co-ordinate jurisdiction it is open to this Court to declare a decision rendered by another single Judge of this Court per incuriam, Mr. Chakraborty placed reliance on the decision of a learned single Judge of this Court reported in AIR 1994 Calcutta 205 (Murari Kumar Shroff v. Jagannath Shaw) wherein the decision of another learned single Judge of this Court reported in 1988 (1) CLJ 389 (Gyan Singh & Ors. v. Guljar Singh & Ors.) was held to be per incuriam. He also contended that the application under Section 5 of the Limitation Act was not rejected by the trial Court on the ground that it is not maintainable; on the contrary, the same was rejected on merits and, therefore, this Court ought to confine its scrutiny as to whether there was failure or not on the part of the trial Court to exercise discretion and thereby scuttle substantial justice.
7. I have heard learned advocates for the parties.
8. The point raised by Mr. Routh regarding applicability of the provisions of the Limitation Act to proceedings under the Act has to be examined first.
9. I have perused the decision in Md. Safique (supra) i.e C.O 4216 of 2006, after calling for the relevant file. Therein, the learned Judge observed, inter alia, as follows:
“In the facts of the instant case, the contention of the learned advocate for the defendant was specifically dealt with by the learned court below and the learned judge, after considering the entire factual gamut, came to the finding that the defendant tenant had failed to file the applications under Section 7 of the West Bengal Premises Tenancy Act, 1997 within the statutory period as contemplated in the said Act. The learned court below was also of the opinion that since the said Act itself prescribes the time limit for filing the application under Section 7(1) & (2), the provisions of the Limitation Act was not at all applicable to adjudicate the case. The learned court below opined that the delay caused by the defendant-tenant in filing the two applications under Section 7 of the West Bengal Premises Tenancy Act, 1997 could not be condoned by considering the bonafideness of the defendant-tenant as there was no specific provision under the said Act of 1997 in that regard.”
10. However, Section 40 of the Act which went unnoticed in Md. Safique (supra) reads thus:
“Application of the Limitation Act, 1963 to proceedings and appeals.-Subject to the provisions of this Act relating to limitation, the provisions of the Limitation Act, 1963 (36 of 1963), shall apply to proceedings and appeals under this Act.”
11. It is therefore clear that far from excluding applicability of the provision of Section 5 of the Limitation Act to appeals and proceedings under the Act either expressly or by necessary implication, there is express provision in the Act to the contrary.
12. In my view, a belated petition under Section 7(2) of the Act could well be entertained after expiry of the period of limitation prescribed in Section 7(1) thereof, provided sufficient cause for condoning the delay is established.
13. I am, however, not in agreement with Mr. Chakraborry that I may proceed treating the decision in Md. Safique (supra) as delivered per incuriam.
14. In its decision reported in (2001) 2 SCC 247 [Dr. Vijay Laxmi Sadho v. Jagdish.], the Supreme Court had the occasion to observe as follows:
“33. As the learned Single Judge was not in agreement with the view expressed in Devilal case it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress than the said course was not followed. It is well settled that if a Bench of co-ordinate jurisdiction disagrees with another Bench of co-ordinate jurisdiction whether on the basis of ‘different arguments’ or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs.”
(Underlining for emphasis by me)
15. The said decision has been followed in a subsequent decision reported in (2003) 5 SCC 448 (State of Bihar v. Kalika Kuer). The law was reiterated in the following words:
“……we would like to say that an earlier decision may seem to be incorrect to a Bench of a co-ordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the court or more aspects should have been gone into by the court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the later Bench of co-ordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways — either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits.”
(Underlining for emphasis by me)
16. Law laid down in Vijay Laxmi Sadho (Dr.) (supra) and Kalika Kuer (supra) is clear. If a bench feels disinclined to agree with the decision of an earlier bench of co-ordinate jurisdiction on a question of law, it must, in keeping with principles of judicial propriety and decorum, either follow the decision with which it disagrees or refer the issue for resolution by a larger bench. To accept as a matter of principle that a bench is competent to hold that a decision of an earlier bench of co-ordinate jurisdiction would not operate on it as a binding precedent would be contrary to the law laid down in the aforesaid two Supreme Court decisions.
17. Experience has shown that the trial Courts at regular intervals are called upon to consider belated petitions under Section 7(2) of the Act together with a prayer for condonation of delay.
18. If I proceed to hold that delay in filing a petition under Section 7(2) of the Act could be condoned under Section 5 of the Limitation Act, that would give rise to conflicting decisions rendered by learned single Judges of this Court and the trial Courts would be faced with an uncertain legal position and compelled to perform the embarrassing task of preferring one view to the other. Uniformity and consistency being the core of judicial discipline, the same are to be maintained at any cost.
19. I have, therefore, no other option but to refer the matter to the Hon'ble the Chief Justice for constituting an appropriate Bench for deciding the following issue:
“Whether provisions of Section 5 of the Limitation Act, 1963 would be applicable for condoning the delay in presentation of a time-barred petition under Section 7(2) of the West Bengal Premises Tenancy Act, 1997”.
20. The cause papers shall be transmitted to the Secretariat of the Hon'ble the Chief Justice at once.
21. Records of C.O 4216 of 2006 shall remain tagged with the records of the application until the reference is decided.
22. Till such time the revisional application is disposed of, all further proceedings of Ejectment Suit No. 48/2007 shall remain stayed.
23. Urgent photostat certified copy of this order, if applied for, be supplied to the applicant at an early date upon compliance with requisite formalities.