P.S. Angaiya Raja vs A.K.D. Alagaraja and Others

Kailasam, J.—These two revision petitions arise out of two interlocutory applications filed by the petitioners in two different suits for

excusing the delay in filing the original petitions for applying u/s 9 of the City Tenants'' Protection Act. The summons in the suits for ejectment was

served on the petitioners on 26-6-1971 and 28-6-1971, and the suits were posted for appearance on 7-7-1971. According to the petitioners,

they were informed by their Advocates that the original petition u/s 9 of the City Tenants'' Protection Act had to be filed within thirty days from the

date of their appearance in court. As the section required that the petition should be filed within one month after service on them of summons and

not from the date of appearance in court, there was a delay of four days and two days.

On the merits, there can be no difficulty in excusing the delay, for the learned advocates who appeared for the petitions have filed affidavits to he

effect that they had advised their clients wrongly; and as the explanation to Section 5 of the Limitation Act provides that the fact the applicant was

misled in computing the prescribed period for filing the application will be sufficient cause within the meaning of Section 5.

But the objection to the petition for excusing the delay was based on the ground that Section 5 of the Limitation Act is not applicable, as the

period of one month prescribed u/s 9(1) of the City Tenant Protection Act is a condition precedent, thereby excluding the application of Section 5

of the Limitation Act.

Section 9(1) of the City tenants'' Protection Act provides that the tenant who is entitled to compensation u/s 3 and against whom a suit in

ejectment has been instituted may, within one month after the service on him of summons, apply to the court for an order that the landlord shall be

directed to sell that and for a price to be fixed by the Court. Under this section the application will have to be made within one month after the

service on him of summons. Section 5 of the Limitation Act, 1963, (Act 36 of 1963) provides that any application may be admitted after the

prescribed period, if the applicant satisfies the court that he had sufficient cause of not making the application within such period. The application

u/s 9(1) of the City Tenants'' Protection Act is before a civil court and it is not disputed that Section 5 of the Limitation Act would be applicable to

an application u/s 9(1) of the City Tenants'' Protection Act, unless Section 9(1) is construed as a condition precedent. In other words, the

contention of the learned counsel for the respondents is that, as the right of the landlord is taken away, the section enabling the tenant to have resort

to that provision should be strictly construed. Relying on a decision of a Full Bench of this court relating to Section 9(1)(c) of the Provincial

Insolvency Act, Mr. Padmananbhan, learned counsel for the respondents, submitted that Section 9(1) of the City Tenants'' Protection Act should

be construed as meaning that, unless the application under that section was filed within one month after service on him of summons, the court

would have no jurisdiction to entertain such an application. Section 9(1)(c) of the Provincial Insolvency Act is in the following terms:

9(1) A creditor shall not be entitled to present an insolvency petition against a debtor, unless--

(a)................

(b)................

(c) the act of insolvency on which the petition is grounded has occurred within three months before the presentation of the petition.

Construing the language of this section, a Full Bench of this Court in Kaku Chenchuramana Reddi Vs. Palapu Arunachalam, held that Section 9(1)

(c) of the Provincial Insolvency Act was a condition precedent to the filing of a petition; that is to say, the petitioning creditor must, on the day

when he presents his petition, have in view some act of insolvency which the debtor had committed within the preceding three months; he had to

see on that date, and that date only, what acts of insolvency were available to him; and he could not make use of any act of insolvency which had

been committed outside the period of three months, as that had ceased to be an act of insolvency. Holding that Section 9(1)(c) did not provide a

period of limitation the court observed that the requirements under that section were in the nature of a condition precedent. It may be noted that at

the time when this decision was rendered by the Full Bench, Section 5 of the Limitation Act had not been made applicable to the Provincial

Insolvency Act. The section, as it then stood, provided that any application to which Section 5 might be admitted after the period of limitation

prescribed therefore, if the applicant satisfied the court that he had sufficient cause for not making the application within such period. Therefore,

according to the wording of Section 5 of the Limitation Act of 1908, it applied only to applications to which if had been made applicable by or

under any enactment. If Section 5 had not thus been made applicable, the applicant before the court could not have the benefit of that section of

the Act of 1908. But the wording of Section 5 of the present Limitation Act of 1963 is different, in that it makes that provisions of Section 5

applicable to all applications made before the court. The requirement that Section 5 ought to have been made applicable by or under any

enactment has been omitted in the new section. After the Limitation Act of 1963 came into force, the rule is that Section 5 will be applicable to all

applications before the court, though the perdition may be opposed on the ground that Section 5 of the Limitation Act is not applicable, for the

period prescribed under any particular section is in the nature of a condition precedent. In this connection, it may be useful to refer to Section 29 of

the Limitation Act, which provides that in an application under any special or local law the provisions contained in Sections 4 to 24 shall apply only

in so far as and to the extent to which they are not expressly excluded by such special or local law. The question therefore that would arise for

consideration is whether the application of Section 5 of the Limitation Act of 1963 has been expressly excluded by the special or local law, viz., by

the provisions of Section 9 of the City Tenants'' Protection Act, with which we are now concerned. On a careful reading of Section 9(1) of the

City Tenants'' Protection Act, I am unable to construe the wording of Section 9 as imposing a condition precedent or expressly excluding the

operation of Section 5 of the Limitation Act. The decision of the Full Bench in Kaku Chenchuramana Reddi Vs. Palapu Arunachalam, cannot be of

much help, as the wording Insolvency Act is different and, as the law then stood. Section 5 of the Limitation Act had not been made applicable.

The decisions of single Judges of this Court were cited at the Bar. In C. R. P. No. 2354 of 1972 (Mad) (Sri Venugopalaswami Devasthanam v.

Narayana Gounder) arising out of an application u/s 9(1) of the City Tenants'' Protection Act, it was held that Section 5 of the Limitation Act

would not be applicable to an application u/s 9(1) of the City Tenants'' Protection Act. While observing that admittedly there was no exclusion,

under the City Tenants'' Protection Act, of the application of the provisions of the Limitation Act, as contemplated u/s 29(2) of the Limitation Act,

the learned Judge held that Section 9(1) of the City Tenants'' Protection Act prescribed a condition precedent, strict compliance of which was

necessary in order to invoke the benefits flowing thereunder.

In a later decision, in C. M. A. No. 522 of 1974 (reported in AIR 1976 Mad 267) (Mrs. Johari Bi v. K. Vinayagam (died) and his L. Rs.) N.

S. Ramaswami, J., held that Section 5 of the Limitation Act was applicable to an application u/s 9(1) of the City Tenants'' Protection Act. The

learned Judge after referring to the decision of the Full Bench in Kaku Chenchuramana Reddi Vs. Palapu Arunachalam, and the decision of the

single Judge in C. R. P. No. 2354 of 1972 (Mad). (Sir Venugopalaswami Devasthanam v. Naryana Gounder) referred to above, expressed his

opinion that he was unable to agree with the view expressed in C. R. P. No. 2354 of 1972, (Sir Venugopalaswami Devasthanam v. Narayana

Gounder), but found it unnecessary to refer the question to a Bench, as on the facts of the case before him, the petition could be maintained as

because of the Amending Act 24 of 1973, the application could be made within two months from the date of the publication of the amendment

Act, and as the petition was filed within the time, it was maintainable.

The attention of the learned Judge, who decided C. R. P. No. 2354 of 1972 (Mad) was not drawn to the difference in the wording of Section

9(1)(c) of the Provincial Insolvency Act and Section 9(1) of the City Tenants'' Protection Act. The decision of the Full Bench was based on the

wording of Section 9(1)(c) of the Provincial Insolvency Act, which excluded any application unless it was in accordance with Section 9(1)(c) of

the Provincial Insolvency Act. In this view, I agree with the learned counsel for the petitioners that the provisions of Section 5 of the Limitation Act

of 1963 apply to an application u/s 9(1) of the City Tenants'' Protection Act. Both the civil revision petitions are allowed, but, under the

circumstances, there will be no order as to costs.

Revision allowed.