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P.S. ANGAIYA RAJA V/S A.K.D. ALAGARAJA & OTHERS, decided on Friday, January 2, 1976.
[ In the High Court of Madras, C. R. P. Nos. 1762 & 1763 of 1973. ] 02/01/1976
Judge(s) : KAILASAM
Advocate(s) : S.V. Jayaraman. M/s. S. Padmanabhan, R. Nadanasabapathy, G. Govardhan.
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  "1977 AIR (Mad) 142"  ==   "1976 (2) MLJ 80"  ==   "1976 (1) ILR(MAD) 247"  ==   ""  







    Kailasam J.1. 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 under Section 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 7-71971. According to the petitioners they were informed by their Advocates that the original petition under Section 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.2. On the merits there can be no difficulty in excusing the delay for the learned advocates who appeared for the petitioners have filed affidavits to the effect that they had advised their clients wrongly and as the explanation to section 5 of the Limitation Act provides that the fact that the applicant was misled in computing the prescribed period for filing the application will be sufficient cause within the meaning of Section 5.3. 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 under Section 9 (1) of the City Tenants Protection Act is a condition precedent thereby excluding the application of Section 5 of the Limitation Act.4. Section 9 (1) of the City Tenants' Protection Act provides that the tenant who is entitled to compensation under Section 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 the land 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 5of 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 for not making the application within such period. The application under Section 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 under Section 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. Padmanabhan 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 fort ' 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 Chenchuramana Reddi v. Palapu Arunachalam 69 Mad LJ 283 : (AIR 1935 Madras 857) (FB) 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 made applicable by or under any enactment for the time being in force might be admitted after the period of limitation prescribed therefor 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 it 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 petition 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 Chenchuramana Reddi v. Palepu Arunachalam 69 Mad LJ 283 : (AIR 1935 Madras 857) (FB) cannot be of much help as the wording of Section 9 (1) (c) of the Provincial Insolvency Act is different and as the law then stood Section 5 of the Limitation Act had not been made applicable.5. 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 under Section 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 under Section 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 under Section 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.6. In a later decision in C. M. A. No. 522 of 1974 (reported in AIR 1976 Madras 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 under Section 9 (1) of the City Tenants' Protection Act. The learned Judge after referring to the decision of the Full Bench in Chenchuramana Reddi v. Palapu Arunachalam 69 Mad LJ 283 : (AIR 1935 Madras 857) (FB) and the decision of the single Judge in C.R.P. No. 2354 of 1972 (Mad) (Sri Venugopalaswami Devasthanam v. Narayana 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 (Sri 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.7. 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 under Section 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.