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1976 Supreme(Mad) 4
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.S. Kailasam, J.
P. S. Angaiya Raja a firm represented by its partner Suhramania Raja .....Appellant(s)
Versus
A.K.D. Alagaraja Huqdar of the Rajapalayam Chatram Charities 1st Schedule properties, Rajapalayam and others .....Respondent(s)
C.R.P. Nos. 1762 and 1763 of 1973.
Decided On : 02 January 1976
S.V. Jayaraman, for Petitioners.
S. Padmanabhan, R.Nadanasabapathy and Govardhan, for Respondents.
Applicability of the provisions of Limitation Act, 1963.
Headnote:Tamil Nadu City Tenant’s Protection Act, 1922-Section 9-Wrong advice given by counsel if is sufficient cause for filing delayed application by tenant.
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 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 5 of the Limitation Act (XXXVI 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 Tenant’s 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 Chenchura-mana Reddi v. Palepu Arunachalam1, held that section 9 (1)(c) of the Provincial Insolvency Act was a condition precedent to the filing of 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 de
