JOHARI BI Vs. K. VINAYAKAM

JUDGEMENT

(1.) THIS appeal is against on 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 had been decreed by the trial court.

(2.) WHEN the appeal filed by the tenant was before the first appellate court, Act 4 of 1972 had come into force and that Act had deleted the proviso to Section 12. That meant, that in spite 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 1st 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.) RAGHAVAN J. has referred to several decisions of this court, including one reported in Syed Ibrahim v. Jalma, 1968 -2 Mad LJ 83. In none of those cases, the question arose whether the period prescribed in Section 9 is one of limitation or whether it is a condition precedent. So, these decisions have no bearing. The learned Judge (Raghavan J.) has also referred to the Full Bench decision in Kaku Chenchuramana Reddi v. Palapu Arunachalam, 69 Mad LJ 382: 42 Mad LW 330 : (AIR 1935 Mad 857) (FB). 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 proceeds 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 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, where 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 of invoking of 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 Insolvency 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.