The period of 30 days mentioned in S. 9 of the City Tenants Protection Act is not a condition precedent but a period of limitation.

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 S. 9 of the City Tenants Protection Act, hereinafter referred to as the percent Act. The trial court held, on the basis of a particular covenant in the written lease agreement that the proviso to S. 12 of the Parent Act would apply, and that, there, fore, he was not entitled to the benefits of S. 9 thereof. So, a decree for possession was granted. The landlord had asked for arrears of rent also. That also had been decreed by 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 S. 12. That meant, that in spite of the covenant in the lease deed, the tenant was entitled to file an application under 5.9 of the Patent 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 S. 5 of the imitation Act has no application. The contention was that the provision under S. 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, therfore, there is no scope for applying S. 5 of the Limitation Act. This was not accepted by the first appellate court audit said that S. 5 of the Limitation Act applies, and there was sufficient cause shown by the tenant to excuse the delay in filing the application under S. 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 bast of the decision of Raghavan J. in C.R.P. 2334 of 1972, dated 28th April, 1973, that the period of 30 days mentioned in S. 9 of the Parent Act is a condition precedent and not a period of limitation. In view of S. 29(2) of the Limitation Act 1963, which it different from the corresponding provision in the Limitation Act 1908, there can be no dispute that if the period of 30 days mentioned in S. 9 is one of limitation, then S. 5 of the Limitation Act is attracted at there it no specific exclusion. S. 29(2) of the Limitation Act says that when the special or local law prescribes a different period of limitation, then what is contained in the schedules to the Limitation Act, unless the special or local law expressly excludes the operation of S. 4 to S. 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 S. 5 of the Limitation Act. In the present case, the matter to before a civil court and, therefore, if what is contained in S. 9 of the Parent Act, in a period of Limitation for filing an application for getting the benefits under that Act, then undoubtedly S.S of the Limitation Act in applicable, and if the Court is satisfied that there is sufficient cause for excusing the delay, it shall excuse. But the contention in, as I said that S. 9 does not prescribe a period of limitation for filing an application for getting the benefits of the Parent Act, but it in a condition precedent. A reading of the section itself does not indicate that it is a condition precedent. All that S. 9 says is that an application shall be lied 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 v. Jalma (1968)-2. M.L.J. 33. In none of those cases, the question arose whether the period prescribed in S. 9 is one of limitation or whether it is a condition precedent. So, these decisions have