ORDER
1. 1. An important question to be considered in this revision is, whether Section 5 of the Limitation Act is applicable when there is a delay in filing petition by the tenant under Section 9(1)(a)(i) of the Madras City Tenants Protection Act, 1922, (in short “the Act”) after a period of one month as prescribed therein.
2. Aggrieved by the order of the learned Additional District Munsif dated 15.2.1999 made in I.A.No.1168 of 1997 in O.S.No.722 of 1996, allowing the application filed under Section 9(1)(a)(i) of the Act, the plaintiff therein has filed the present revision.
3. The petitioner/plaintiff filed a suit in O.S.No.722 of 1999 before the Principal District Munsif, Cuddalore against the respondent/defendant, directing her to vacate and surrender possession of the suit property either with the superstructure and trees after receiving the compensation for the same. The defendant filed a written statement disputing various averments made in the plaint. Pending suit, the respondent herein – defendant, filed I.A.No.1168 of 1997 under Section 5 of the Limitation Act, to condone the delay of 278 days in filing the petition under Section 9(1)(a) of the Act.
4. In the affidavit filed in support of the said application it is stated that, she was served with the summons and she engaged an Advocate. She is an old lady and suffering from Asthma and other ailments due to her old age she had been bed ridden and she could not move about. She requested her Advocate to take time for filing written statement and when she felt some what better only a week back she met her Advocate to give instructions to prepare the written statement. Her Advocate told her that, a separate application has to be filed under Section 9 of the Act. She was not negligent or indifferent.
5. In the counter statement filed by the respondent therein, it is stated that all the allegations mentioned in the affidavit are invented just for the purpose of filing the application under Section 9 of the Act. The petitioner entered appearance through her Advocate even on 21.8.1996 and on that date her Advocate offered to file vakalath for herself. Summons in the suit was served on her even prior to that date. The petitioner must have filed the petition under Section 9 of the Act, within 30 days from the date of receipt of the summons. But, no proper explanation has been given in the above application for the delay. The petitioner is squatting on the property from 1975 without paying any rent. There is no val;d reason to condone the delay.
6. Before the learned District Munsif, the petitioner therein got herself examined as P.W.1 and also produced and marked O.P. Chit dated 7.1.1997 issued by the Government Hospital, Pondicherry as Ex.P.1. The respondent therein was examined as R.W.1 and also marked two documents as Exs.R.1 and R.2. The learned Principal District Munsif, after considering the materials
placed, directed the petitioner to pay cost of Rs.200.00 to the respondent and condoned the delay in filing petition under Section 9(1)(a)(i) of the Act, against which the present revision is filed.
7. Heard the learned counsel appearing for the petitioner as well as for the respondent.
8. Mr.S.K. Raghunathan, learned counsel appearing for the petitioner by drawing my attention to a specific provision, namely 9(1)(a)(i) of the Act, would contend that, in the light of the prescribed period therein and in the absence of any other provision for condonation of delay, the application filed by the respondent herein for condoning the delay of 278 days is not maintainable and liable to be dismissed.
9. On the other hand, Mr.R. Muralidharan, learned counsel appearing for the respondent would contend that, in view of the intention of the enactment and in the absence of any specific exclusion of Limitation Act, particularly Section 5 of the Limitation Act, the learned Principal District
Munsif is right in entertaining the application and condoning the delay; accordingly prayed for dismissal of the revision.
10. I have carefully considered the rival submissions.
11. In order to appreciate the rival contentions and to resolve the question in issue, it is, but proper to refer the relevant provision, namely Section 9(1)(a)(i) of the Act.
“9. Application to Court for directing the landlord to sell land. – (1) (a) (i) Any tenant who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted or proceeding under Section 41 of the Presidency Small Cause Courts Act, 1882, taken by the landlord, may (within one month of the date of the publication of Madras City Tenants Protection (Amendment) Act, 1979 in the Tamil Nadu Government Gazette or of the date with effect from which this Act is extended to the municipal town township or village in which the land is situate) or within (one month) after the service on him of summons apply to the court for an order that the landlord shall be directed (to ell for a price to be fixed by the court, the whole or part of, the extent of land specified in the application.)”
It is clear that any tenant who is entitled compensation under Section 3 of the Act or against whom ejectment suit has been instituted within one month after the service on him of summons, can apply to the court for an order that the landlord shall be directed to sell for a price to be fixed by the court, the whole or part of the extent of land specified in the application. Among those conditions mentioned therein, we are concerned with condition (1), namely that an application for direction to the landlord is to be filed within one month, after the service of the summons. Admittedly, in our case the defendant therein did not file an application under Section 9(1)(a)(i) of the Act within time. Except the period “one month after the service of summons” there is no other provision in the Act for filing an application after the expiry of the said period
and condonation of the same, if sufficient cause is shown. In view of the fact that the defendant has not filed an application within 30 days from the date of summons and there is a delay of 278 days in filing the same, the question to be considered is whether in the absence of any provision regarding applicability of the Limitation Act, the Court is competent to condone the delay or not?
12. Mr.S.K. Raghunathan, learned counsel appearing for the petitioner has straight-away relied on two decisions of this court, namely, in the cases of (i) Nagammal v. Govindarajulu Naicker, 1958 (71) L.W. 163 and (ii) Gulam Mohamood v. Ammani Ammal, 1960 (73) L.W. 688 respectively. In Nagammal v. Govindarajulu Naicker, 1958 (71) L.W. 163, the tenant therein filed an application for an order that the landlord be directed to sell the land for the price to be fixed by the court. The tenant’s application MP.No.2082 of 1956 had not been made within one month period. Since the application came to be made after coming into force of the Amendment Act, 1955, it was contended before the learned Judge that the rule that the application should be made within one month is a mere rule of pleading which need not be enforced. Rejecting the said contention, Subrahmanyam, J., has held that, the rule is a rule of limitation, which the Court does not have power to relieve a person against, in the absence of express jurisdiction conferred on the court to grant such relief for sufficient cause. The learned Judge after holding that no such jurisdiction is conferred on the Court to extend the time for applying for relief under Section 9, dismissed the revision filed by the tenant. The effect of the judgment is that the Court has no power to deal with the application filed after one month after the service of summons on him.
13. In the latter case, namely Gulam Mohamood v. Ammani Ammal, 1960 (73) L.W. 688, Anantanarayanan, J., (as he then was) in similar circumstance has observed,
“Here, we have a case of a tenant, who actually could not obtain the benefit of S.9 of the Act, because his application was out of time. The Court has no power to condone such a delay. Vide observations of Subrahmanyam, J., in Nagammal v. Govindarajulu, 1958 (71) L.W. 163. The result is that the tenant was not able to exercise any option and to obtain the benefits of S.9 of the Act.”
Both the decisions show that if the tenant was to exercise the option, namely to purchase the suit property, he has to make an application within one month from the date of service of summons on him and beyond one month the court has no power to consider his application.
14. Subsequent to the above decisions, this Court is consistently taking the view that in the absence of any specific exclusion of the application of Section 5 of the Limitation Act, even after one month, if sufficient cause is shown, the application of the tenant under Section 9(1)(a)(i) of the Act can be considered. Before considering the latter decisions, it is also relevant to refer Section 29(2) of the Limitation Act.
“29. Savings – (1)
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Section 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.”
Section 3(1) of the Limitation Act speaks about “Bar of Limitation”.
“3. Bar of Limitation – (1) Subject to the provisions contained in Section 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after prescribed period shall be dismissed although limitation has not been set up as a defence.”
It is clear from these provisions that, in the absence of specific provision expressly excluding the provisions of the Limitation Act, particularly Section 3, it is presumed that Section 5 of the Limitation Act is applicable.
15. The first leading judgment on this aspect is of N.S.Ramaswami, J., in the case of Mrs. Johari Bi v. Vinayakam (Died), 1976 (89) L.W 108. The said decision arose in an appeal, which is filed against an order of remand in a suit where the defendant is a tenant entitled to the benefits of Section 9 of the Act. The trial court held, on the basis of a particular covenant in the written lease agreement that the provision to Section 12 of the Parent Act would apply, and that, therefore, he was not entitled to the benefits of S.9 thereof. So, a decree for possession was granted. 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 S.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 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, therefore, there is no scope for applying S. 5 of the Limitation Act. This was not accepted by the first appellate court and it said that S. 5 of the Limitation Act applied, 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 a civil miscellaneous appeal questioning the said remand. The learned Judge has observed,
“3. It is contended on the basis of the decision of Raghavan, J., in C.R.P.2354 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 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 S.9 is one of limitation, then S. 5 of the Limitation Act is attracted as there is 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 is before a civil court and, therefore, if what is contained in S.9 of the Parent Act, is a period of Limitation for filing an application for getting the benefits under that Act, then undoubtedly S. 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 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 is 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 field within one month after the service of the suit summons.”
4. ……..
“5. Raghavan, J., has referred to the above decision and without further discussion has stated that he was of opinion that S.9(1) of 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 24 of 1973. As I said earlier, the Amending Act of 1972 (Act 4 of 1972) deleted the proviso to S.12 of the Parent Act. It is because of such deletion, the tenant in this case gets a right to apply under S.9 for relief. No doubt, he had applied even before the amendment. Under the present definition of the word “tenant” in Sub-S.4 of S.2, as amended by Act 24 of 1973, a person who gets a right to the benefits of the Act, because of the deletion of the proviso in actual physical possession of the land and buildings. The amendment made by the Act 24 of 1973 to S.9 of the Parent Act says that any such person as is referred 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 amending Act. The present application having been filed very much prior to the coming into force of the Amending Act, Act 24 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.
It is clear that, in view of Section 29(2) of the Limitation Act, if the period of 30 days mentioned in Section 9 of the Act is exceeded then Section 5 of the Limitation Act is attracted, as there is no specific exclusion.
16. Similar question came up before Kailasam, J., (as he then was) in the case of P.S. Angalya Raja v. A.K.D. Algaraja, 1976 (89) LW 362. The
question before the learned Judge was, whether the application of Section 5 of the Limitation Act, 1963 has been expressly excluded by the special or local law, namely, by the provisions of S.9 of the Tamil Nadu City Tenants’ Protection Act. After referring the relevant provisions of the Act as well as the Limitation Act and judgment of N.S.Ramaswami, J., in P.S. Angalya Raja v. A.K.D. Algaraja, 1976 (89) LW 108, the learned Judge has held that,
“On a careful reading of S.9(1) of the City Tenants Protection Act, I am unable to construe the wording of S.9 as imposing a condition precedent or expressly excluding the operation of S. 5 of the Limitation Act.”
The learned Judge further held that,
“Therefore, the provisions of Section 5 of the Limitation Act, 1963 will apply to an application under Section 9(1) of the City Tenants’ Proteciion Act.”
17. In the case of G. Venkataswamy v. Thangammal, 1977 T.L.N.J. 417, A. Varadarajan, J., (as he then was), following the decision of N.S. Ramaswami, J., in P.S. Angalya Raja v. A.K.D. Algaraja, 1976 (89) L.W. 108 and K.P. Kailasam, J., (as he then was) in 81 L.W. 362 has held that,
“The period of one month mentioned in Section 9(1) of the Act, is one of the limitation and not a condition.”
18. In the case of R. Govindaswamy v. Bhoopalan and others, 1977 (1) M.L.J. 206, V. Ramaswami, J., (as he then was) had an occasion to consider the very same question. After referring Amendment Act XXIV of 1973, the learned Judge has observed,
“4. ……. Thus, in a case where an Act was extended for the first time, the
right to file arises by reason of the extension of the Act to the Municipal town and in other cases on receipt of the summons and if we test it with reference to such cause of action, certainly it would be a period of limitation from the date when the cause of action arose and it could not be said that it is a condition for the applicability of Section 9. Therefore, even in a case where the application is filed after receipt of the summons, it would be case of limitation and not a condition for invoking section 9. I am, therefore, of the opinion that it will be a period of limitation prescribed by Section 9. Under Section 29(2) of the Limitation Act, 1963 where any special or local law prescribes for any application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 of the Act shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for such application, the provisions contained in Sections 4 to 24 shall apply, unless the applicability of any of those provisions is excluded or modified. Section 5 of the Limitation Act is, therefore, clearly applicable to an application under Section 9 of the Act. I may add that this was also the view taken by Kailasam, J., (as he then was) in
CRP.Nos.1762 and 1763 of 1973 dated 2nd January, 1976. (since reported in P.S. Angalya Raja v. A.K.D. Algaraja, 1976 (89) L.W. 362)”
19. In the case of M/s. Jayabharatham & Co., v. Susila Chari, 1985 (I) M.L.J. 63, similar question was considered by M.A. Sathar Sayeed, J. The learned Judge has held that, since under the Limitation Act, 1963, section 5 is specifically made applicable by section 29 sub-section (2) it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law if the application can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of Section 5, that it would stand displaced. A petition under Section 5 of the Limitation Act, 1963, is not barred to seek condonation of the delay in filing the petition under Section 9(1) of the Madras City Tenants’ Protection Act.
20. Though in the earlier two decisions, namely Nagammal v. Govindarajulu Naicker, 1958 (71) L.W. 163 and Gulam Mohamood v. Ammani Ammal, 1960 (73) L.W. 688, the learned Judges therein had taken a specific view that the court had no power to entertain an application filed under Section 9(1) (a) (i) of the Act, after one month after the service of summons on him, it is clear that their Lordships have not considered the provisions of the Limitation Act, particularly, saving provision, Section 29(2) of the Act. In the subsequent decisions, starting from N.S. Ramaswami, J., in P.S. Angalya Raja v. A.K.D. Algaraja, 1976 (89) L.W., 108, ending with Sathar Sayeed, J., in M/s. Jayabharatham & Co., v. Susila Chari, 1985 (I) M.L.J. 63, all the learned Judges after noting that there is no express exclusion of the applicability of the provisions of Limitation Act and in view of Section 29(2) of the Limitation Act held that, Section 5 of the Limitation Act is applicable even for application filed under Section 9(1)(a)(i) and if there is sufficient cause, the court is competent to condone the delay and consider the claim of the tenant in an ejectment suit filed by the landlord. It is also clear that, even in a case where application is filed after receipt of summons, it would be the case of Limitation and not a condition for invoking Section 9 of the Act. In other words, it will be a period of limitation prescribed by Section 9 of the Act and in view of Section 29(2) of the Limitation Act, 1963, where any special or local law prescribes for any application within the limitation prescribed from the schedule of provisions of Section 3 of the Act shall apply as for such period where the period prescribed by the schedule for the purpose of determining any period of limitation prescribed if such application the provisions contained in Sub- Section 4 of Section 24 shall apply, unless the applicability of in all those provisions are excluded or modified. I have already observed that there is no specific provision excluding the applicability of Limitation Act. Accordingly, I hold Section 5 of the Limitation Act is applicable to an application filed under Section 9(1)(a)(i) of the Act.
21. Now, the other question to be considered is, whether the petitioner therein had sufficient cause for condonation of delay of 278 days in filing the application. Apart from the affidavit, in her evidence as P.W.1 she deposed that, due to her ill-health she could not file application immediately on receipt of summons from the Court. She also deposed that, at the relevant time she was taking treatment in the Hospital at Pondicherry. She also produced O.P. Chit dated 7.1.1987 issued by the Government Hospital Authorities, Pondicherry, which has been marked as Ex.P.1. Though the delay is on the higher side, namely 278 days, I am satisfied that the petitioner therein has established her absence by placing acceptable legal evidence. In this regard it is useful to refer to the following objection of the Supreme Court. As observed by their Lordships of the Supreme Court in the case of Balakrishnan, N. v. KM Krishnamurthy, 1999 (1) L.W. 739,
“9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisions jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse.”
I have already held that the learned Principal District Munsif after considering the oral and documentary evidence and after satisfying herself, condoned the delay. Inasmuch as the court below has exercised its discretion, normally the revision court should not disturb such finding unless the exercise of direction was on wholly untenable grounds, arbitrary and frivolous. Inasmuch as the delay has been sufficiently explained and rightly condoned, even on merits, there is no case for interference.
22. In the light of what is stated above, I do not find any merit in the revision; consequently, the same is dismissed. No costs.
23. In view of the dismissal of the main revision, connected CMP is also dismissed.