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Mrs. Johari Bi Vs. K. Vinayagym (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1976)1MLJ220
AppellantMrs. Johari Bi
RespondentK. Vinayagym (Died) and ors.
Cases ReferredKaku Chenchuramana Reddy v. Polapu Arunachalam
Excerpt:
- .....an application shall be filed within 30 days from the receipt of the summons in the suit, is not a period of limitation, but a condition precedent, and that, therefore, there is no scope for applying section 5 of the limitation act. this was not accepted by the first appellate court and it said that section 5 of the limitation act applies, and there was sufficient cause shown by the tenant to excuse the delay in filing the application under section 9. therefore, it set aside the judgment and decree of the trial court and remitted the matter to the trial court for a fresh disposal. the landlord has filed this civil miscellaneous appeal questioning the said remand.3. it is contended on the basis of the decision of raghavan, j., in c.r.p. no. 2354 of 1972, dated 28th april, 1973, that the.....
Judgment:
ORDER

N.S. Ramaswami, J.

1. This appeal is against an order of remand in a suit, in which one of the questions was whether the defendant is a tenant entitled to the benefits of Section 9 of the City Tenants Protection Act, hereinafter referred to as the Parent Act. The trial Court held, on the basis of a particular covenant in the written lease agreement that the proviso to Section 12 of the Parent Act would apply, and that, therefore, he was not entitled to the benefits of Section 9 thereof. So, a decree for possession was granted. The landlord had asked for arrears of rent also. That also been decreed by the trial Court.

2. When the appeal filed by the tenant was before the first Appellate Court, Act IV of 1972 had come into force and that Act had deleted the proviso to Section 12. That meant, that inspire of the covenant in the lease deed, the tenant was entitled to file an application under Section 9 of the Parent Act. However, the application had been filed by the tenant in the trial Court only after a delay of 60 days. It had been contended before the first Appellate Court, on behalf of the landlord, that such delay cannot be excused, because Section 5 of the Limitation Act has no application. The contention was that the provision under Section 9 that an application shall be filed within 30 days from the receipt of the summons in the suit, is not a period of limitation, but a condition precedent, and that, therefore, there is no scope for applying Section 5 of the Limitation Act. This was not accepted by the first Appellate Court and it said that Section 5 of the Limitation Act applies, and there was sufficient cause shown by the tenant to excuse the delay in filing the application under Section 9. Therefore, it set aside the judgment and decree of the trial Court and remitted the matter to the trial Court for a fresh disposal. The landlord has filed this civil miscellaneous appeal questioning the said remand.

3. It is contended on the basis of the decision of Raghavan, J., in C.R.P. No. 2354 of 1972, dated 28th April, 1973, that the period of 30 days mentioned in Section 9 of the Parent Act is a condition Precedent and not a period of limitation. In view of Section 29(2) of the Limitation Act, 1963, which is different from the corresponding provision in the Limitation Act, 1908, there can be no dispute that if the period of 30 days mentioned in Section 9 is one of limitation, then Section 5 of the Limitation, Act is attracted as there is no specific exclusion. Section 29(2) of the Limitation Act says that when the special or local law prescribes a different period of limitation, than what is contained in the schedules to the Limitation Act, unless the special or local law expressly excludes the operation of Sections 4 to Section 24 of the Limitation Act, all these sections would apply even to proceedings coming under the special or local law in determining the period of limitation. However, undoubtedly, the proceedings must be before a civil Court for invoking Section 5 of the Limitation Act. In the present case, the matter is before a civil Court and, therefore, if what is contained in Section 9 of the Parent Act, is a period of limitation for filing an application for getting the benefits under that Act, then undoubtedly Section 5 of the Limitation Act is applicable, and if the Court is satisfied that there is sufficient cause for excusing the delay, it shall excuse. But the contention is, as 1 said, that Section 9 does not prescribe a period of limitation for filing an application for getting the benefits of the Patent Act, but it is a condition-precedent. A reading of the section itself does not indicate that it is a condition-precedent. All that Section 9 says is that an application shah; be filed within one month after the service of the suit summons.

4. Raghavan, J., has referred to several decisions of this Court, including the one reported in Syed Ibrahim and Ors. v. Jalma and Ors. : (1968)2MLJ83 In none of these cases, the question arose whether the period prescribed in Section 9 is one of limitation or whether it is a condition-precedent. So, those decisions have no bearing. The learned Judge (Raghavan, J.), has also referred to the Full Bench decision in Kaku Chenchuramana Reddy v. Polapu Arunachalam : (1935)69MLJ283 . That was a case where a creditor presented an insolvency petition beyond the period of three months provided under Section 9 of the Provincial Insolvency Act, from the date of the act of insolvency. In that case also, the question whether Section 5 of the Limitation Act had application did not arise for consideration, for the simple reason that under the Limitation Act of 1908, there is no scope for applying Section 5 of the Limitation Act with regard to a proceeding where any special or local law prescribed a different period even if such a period is one of limitation. But, Section 9(1) of the Provincial Insolvency Act has really not prescribed a period of limitation. It says that a creditor, shall not be entitled to present an insolvency petition against a debtor unless the act of insolvency on which the petition is granted has occurred within three months before the presentation of the petition. It is in a negative form. In other words, it prohibits a creditor from presenting an insolvency petition beyond the period of three months from the date of the act of insolvency. Therefore, it was said that it was a condition-precedent for the petitioning creditor that he should present the petition within three months of the alleged act of insolvency. That would have no bearing on the present question for two reasons. One is, here the language employed in Section 9 of the Parent Act, is not negative in character as in the case of the Provincial Insolvency Act. Further, as I said, when the Full Bench decision was rendered, there was no scope for invoking Section 5 of the Limitation Act in a proceeding under the Provincial Insolvency Act. Even if there was any such scope, because the language employed in Section 9 of the Provincial Insovlency Act made it clear that it was a condition precedent for the creditor to present the petition within three months of the act of insolvency, he cannot be heard to say that the delay is to be excused.

5. Raghavan, J., has referred to the above decisions and without further discussion has stated that he was of opinion that Section 9(1) of the Madras City Tenants Protection Act provides only a condition precedent and not a period of limitation.

6. With respect to the learned Judge, I am not in a position to readily agree to this view. Under such circumstances, my duty would be to refer the matter to a Division Bench, but in the present case, that would not be necessary, because of the provision contained in the Amending Act, Act XXIV of 1973. As I said earlier, the Amending Act IV of 1972, deleted the proviso to Section 12 of the Parent Act. It is because of such deletion, the tenant in this case gets a right to apply under Section 9 for relief. NO doubt, he had applied even before the amendment. Under the present definition of the word 'tenant' in Sub-section 4 of Section 2, as amended by Act XXIV of 1973, a person who gets a right to the benefits of the Act because of the deletion of the proviso to Section 12 is also included, provided he continues in actual physical possession of the land and buildings. The amendment made by Act XXIV of 1973 to Section 9 of the Parent Act says that any such person as is referred to above, is entitled to file an application for the necessary relief under the Parent Act within two months from the date of the publication of the said Amendment Act. The pie-sent application having been filed very much prior to the coming into force of the Amending Act, Act (XXIV of 1973), there is no difficulty in holding that such application is maintainable, even without an application to excuse the delay. Therefore, the order of remand has to be upheld.

7. However, the first Appellate Court, is not right in setting aside the entire decree of the trial Court. One part of the decree is regarding the possession and the other part of the decree is with regard to arrears of rent. There is no ground to set aside the decree for arrears of rent, as there was no dispute regarding the same. The First Appellate Court ought to have confirmed that part of the decree. Therefore, the civil miscellaneous appeal, is partly allowed in that the decree of the trial Court regarding arrests of rent is confirmed. Otherwise, the appeal is dismissed.

8. It is made clear that if the landlord chooses to file any additional counter to the application under Section 9, he may be allowed to do so by the trial Court. Parties to bear their own costs.

9. It is brought to my notice that the tenant, by way of abundant caution has filed a separate petition in O.P.No. 491 of 1973 before the City Civil Court for relief under Section 9, as amended by Act XXVI of 1973. That becomes unnecessary in view of what I have said earlier. Mr. K.N. Balasubramaniam, the learned Counsel for the tenant says that he would not press that O.P., as there cannot be duplicate proceedings.


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