P. Premchand Bandhia vs Mrs. Yashbala R. Prohit

Ratnam, J.

4.9.1992

This civil revision petition, at the instance of the tenant, has been preferred against the order of eviction passed against the petitioner, by the

Appellate Authority, on an application taken out by the respondent herein, u/s 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control)

Act 18 of 1960 as amended by Act 23 of 1973 (hereinafter referred to as ''the Act''). Briefly stated, the circumstances giving rise to this C.R.P.,

are as follows : The premises bearing door No. 60, Ellis Road, Madras-2, belongs to the respondent and the petitioner is in occupation of the first

floor in that property, as a tenant, on a monthly rent of Rs. 625. The respondent was in occupation, as a tenant, of door No. 4, IV Cross Road,

C.I.T. Colony, Madras-4, belonging to one Sri T.A. Ramachandran and the furniture and other house-hold articles belonging to her, were kept in

the rented premises, when the landlady was obliged to be away from Madras and the respondent as well as the other members of her family,

stayed in the rented premises, whenever they were in Madras. In order to secure her own premises for her use and occupation, as she did not

have any other residential premises of her own in the -city of Madras, the respondent issued a notice to the petitioner on 16.9.1984 calling upon

him to vacate and hand over vacant possession, for which, the petitioner sent a reply declining to comply with the demand. The respondent stated

that she requires the premises in the occupation of the petitioner for her own use and occupation, viz., residence for herself and other members of

her family whenever they are at Madras and also for keeping her furniture and other household articles, valuables, etc., and that she bona fide

requires the first floor in the occupation of the petitioner for her own use and occupation. Accordingly, she prayed for an order of eviction against

the petitioner u/s 10(3)(a)(i) of the Act.

In the counter filed by the petitioner, he put forward the plea that the petitioner was not residing as a tenant at Door No. 4, IV Cross Road,

C.I.T. Colony, Madras-4 and further denied that the respondent did not own any other property in the city of Madras. That the respondent was

bona fide in need of the building, was also denied by the petitioner. Stating that the respondent belongs to Gujarat and her husband was employed,

in the Sultanate of Oman and she is permanently settled with her husband at Muscat, the petitioner questioned the bona fides of the requirement of

the respondent and prayed for the dismissal of the eviction petition.

Before the Rent Controller (XIII Judge, Court of Small Causes), Madras, on behalf of the respondent, Exs. P-1 to P-4 were marked and

P.Ws. 1 and 2 gave evidence, while, on behalf of the petitioner, Exs. R-1 to R-6 were filed and R.Ws. 1 and 2 were examined. In the course of

the proceedings before the Rent Controller, the petitioner also raised an objection that the application for eviction filed by the respondent, was

defective, in that, it did not conform to the requirements of Rule 11(3) of the Rules framed under the Act. On a consideration of the oral as well as

the documentary evidence, the learned Rent Controller took the view that the eviction petition filed by the respondent had been signed by the

power of attorney agent of the respondent and not by herself and that would render the application for eviction not maintainable. Dealing with the

question of bona fides of the requirement of the respondent, the Rent Controller found that the inaction of the respondent from 1981-82 to 1984

and again between 1984 and 1986, in the matter of taking proceedings against the petitioner seeking his eviction, would throw doubts on the bona

fides of the requirement of the respondent and that, therefore, the respondent was not entitled to an order of eviction as prayed for by her.

Ultimately, the Rent Controller dismissed the eviction petition filed by the respondent, against which, the respondent filed R.C.A. No. 1080 of

1990, before the Appellate Authority (VII Judge, Court of Small Causes), Madras. On a consideration of the definition of the word ''landlord'' u/s

2(6) of the Act and the contents of the power of attorney, the Appellate Authority took the view that the power of attorney empowered the agent

to initiate action for eviction and the verification of the application having been made in accordance with the terms of the power, the conclusion of

the Rent Controller that the application was not maintainable, as there was no compliance with Rule 11 (3) of the Rules framed under the Act, was

not correct. In addition, the Appellate Authority, on a consideration of the evidence of P.Ws. 1 and 2 and R.W.1, found that the respondent did

not own any other residential premises of her own, but that she was a tenant in Door No. 4 IV Cross Road, C.I.T. Colony, Madras-4 and that she

and the members of her family, whenever they visited Madras, stayed in the rented premises and the respondent cannot be denied the relief of

eviction against the petitioner on the ground that such a claim lacked in bona fides. On the conclusions so arrived at, the Appellate Authority

reversed the order of the Rent Controller and ordered eviction of the petitioner from the premises in his occupation, the correctness of which is

questioned in this C.R.P.

In support of the revision, learned Counsel for the petitioner, inviting attention to Rule 11(3) of the Rules framed under the Act, contended that

the eviction petition had been signed, verified and presented by the power of attorney agent of the respondent and this is in violation of Rule 11 (3)

of the Rules, which requires the application to be signed by the applicant and his counsel. Elaborating this, learned Counsel pointed out that the

signing of the application should be done by the applicant and his counsel, though the presentation of the application to the Controller or the officer

authorised by him, may be either by the applicant personally or by his recognised agent or counsel and that, in this case, there has been a violation

of the first part of Rule 11(3) of the Rules, requiring the signing of the application by the landlady. On the other hand, learned Counsel for the

respondent, referring to the power of attorney, marked as Ex.P-1 and Sections 2(6) and 10(8) of the Act, submitted that the power of attorney

himself is the landlord for the purposes of the Act, in this case, as there was no restriction on the scope of his authority, as contemplated u/s 10(8)

of the Act and that there was no violation whatever of Rule 11(3) of the Rules, under those circurnstances. Maintaining that the signing and

verification of an application, are matters collateral to the main application, and would not in any manner affect the jurisdiction of the court to

entertain the application, learned Counsel invited attention to the decisions reported in Basdeo v. John Smidt ILR 22 All. 55 and A.S. Subbaraj

Vs. M. Muthiah and Others, . In addition, reference was also made to the decisions reported in Pahalajmal Khatumal v. K Govindarajulu, Power

of Attorney Agent of T. V. & Bros. and Abhaichand Vendavan 74 L.W. 828 : (1961)1 M.L.J. 150, Abdul Ravoof v. South Indian Tanners &

Dealers Association, Ranipet 76 L.W. 589, S.A.M. Jameema Beevi and Another Vs. Easwarlal Patel and Others, .

From the eviction petition filed, it is seen that Mr. M. Subramania Rao, in his capacity as the power of attorney agent of the respondent, has

signed the application as well as the verification and had also presented it. Ex.P-1, dated 4.1.1984 is the general power of attorney executed by

the landlady in favour of the power of attorney agent. From the provisions of Ex.P-1, it is seen that the agent has been authorised to receive rents,

damages for use and occupation, in respect of the property bearing Door No. 60, Ellis Road, Madras-600002, issued valid receipts and

discharges for the payments received, induct tenants, execute lease deeds and receive advance of rents, in respect of whole or portions of the

property, to institute suits, petitions and proceedings for ejectment and possession of whole or portions of the property, to sign and verify plaints,

petitions, pleadings, for the purpose of institution of suits, petitions and proceedings, to levy execution of decrees, obtained in suits, petitions and

proceedings and take delivery of possession, to take possession of properties and be in actual possession of whole or portions of the property and

to do all other acts incidental to secure the aforesaid objects. Further, the landlady has also undertaken to ratify all the acts done by the agent

within the scope of the power. u/s 2(6) of the Act, which contains an inclusive definition of the expression ''landlord'', a person receiving or is

entitled to receive the rent of a building, whether on his own account or on behalf of another, or as an agent, trustee, etc., would also be a landlord.

Section 10(8) of the Act provides that a person, who is receiving or is entitled to receive the rent of a building, merely as an agent of the landlord,

shall not, except with the previous written consent of the landlord, be entitled to apply for the eviction of a tenant. Considering the scope of the

power executed by the landlady in favour of the agent, that cannot be construed to be one executed merely for the receipt of rents of a building,

without anything more. In other words, in view of the wide scope of the authority conferred on the agent by the landlady in this case, under the

terms of Ex.P-1, he would himself be the landlord, for the purposes of the Act u/s 2(6) of the Act and the signing and verifying of the application

for eviction by the agent, has to be regarded as having been done by the landlady herself.

In Pahalajmal Khatumal v. K. Govindarajulu, Power of Attorney Agent of T.V. & Bros. and Abhaichand Vendavan (1961)1 M.L.J. 150 : 74

L. W. 828, the order of eviction was assailed on the ground that the agent of the landlord, who filed the eviction petition, was not authorised to file

such a petition. The learned District Judge took the view that the general power of attorney conferred the necessary power upon the agent and was

not against the tenor of Section 7(7) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1949. In dealing with the contention that the

eviction petition was not maintainable because the agent was only collecting the rent, Srinivasan, J. pointed out that the argument that

notwithstanding that the agent holds a general power of attorney, which specifically includes the power of attorney agent to take steps in eviction

proceedings, on behalf of the landlord, even then, there should be a separate written consent for that purpose, could not be accepted and that the

power of attorney rendered the agent competent to appear, continue, prosecute and defend all the legal proceedings and that included a right to

take eviction proceedings and therefore, the application filed by the agent, was maintainable. In V. Bichawa v. M. Venkatesan 92 L.W. 589, a

Division Bench has approved of the view taken by Srinivasan, J. in Pahalajmal Mutumal v. K. Govindarajulu Power of Attorney Agent of T.V. &

Bros, and Abhaichand Vendavan (1961)1 M.L.J. 150 : 74 L.W. 828.

In Abdul Ravoof v. The South Indian Tanners & Dealers Association, Ranipet 76 L.W. 43 (S.N.), it was held that an application laid by a non-

member paid secretary authorised by a resolution of the Executive Committee of the Association, responsible for carrying on the administration,

according to the objects of the Association to sign applications for eviction and to engage counsel for the conduct of proceedings before, the

appropriate forums, was not in any way repugnant to the provisions of the Madras Buildings (Lease and Rent Control) Act 18 of 1960, as the

application was competently laid by the Secretary acting as the representative of the registered Society. In S.A.M. Jameema Beevi and Another

Vs. Easwarlal Patel and Others, . Ramprasada Rao, C.J., had occasion to consider the question of the maintainability of an application filed by a

power of attorney agent under the terms of the power of attorney, which enabled the agent to initiate proceedings for eviction of the tenants,

fixation of fair rent, etc., before the competent authorities. It was held that the definition of the word ''landlord'' u/s 2(6) of the Act, would include a

power of attorney agent and so long as such agent was not merely an agent for collection of rent, proceedings in eviction could be initiated and that

an undertaking given by the power of attorney in that case, satisfied the requirements of Section 14(2)(b) of the Act. It is thus seen from Sections

2(6) and 10(8) of the Act as well as the Rules, that a general power of attorney agent, as in this case, duly empowered to initiate proceedings in

eviction, can also sign and present applications for and on behalf of the principal and such an application cannot be said to be not maintainable for

the reason that it has not been signed by the landlady herself. The signing of the application as well as the verification therein, by the general power

of attorney, as in this case, cannot be regarded as a defect, which affects the jurisdiction of the Controller to entertain the application. It would be

useful in this connection to refer to Rajitram v. Kateswarnath 18 All. 396 (M), where a Full Bench of the Allahabad High Court observed that it

would be difficult to imagine any case in which a defective verification of a plaint could affect the merits of the case or the jurisdiction of the Court.

Again in Basdeo v. John Smidt ILR 22 All. 55, the learned Judges, quoted with approval the following passage from Mr. Venfleet ''s Law of

Collateral Attack on Judicial Proceedings. The statutes require many kinds of petitions to be verified. This includes generally all complaints and

petitions in special proceedings, the bill in equity, the libel in admiralty and in some States, complaints or petitions in all cases. Such verification

adds no allegation to the pleadings and tenders no issue. Its only object is to show the good faith of the petitioner...Like any other formal merits, its

absence is waived by a failure to object and if its entire absence does not affect the jurisdiction, of course, more defects in it cannot''. The

observations to similar effect in A.S. Subbaraj Vs. M. Muthiah and Others, , may also be referred. Venkatarama Ayyar, J. dealing with the

question of the need to dismiss an election petition for defective verification, took the view that defective verification is a mere irregularity and does

not affect the jurisdiction of the court to entertain the proceeding, notwithstanding the fact that the rule provided that the verification shall be in the

manner prescribed therein. Even on the footing that the application for eviction and the verification therein had been made by the general power of

attorney and not the landlady, that would at best be a mere irregularity and would not in any manner affect the jurisdiction of the Rent Controller to

entertain the petition. It is also significant that while the first part of Rule 11(3) refers to signing by the applicant and his counsel, the latter part

relating to presentation speaks of the same by the applicant himself personally or by his recognised agent. The difference in the language employed

in the first and latter parts of the rule is also not without significance, as, in the latter part, the presentation should be by the applicant personally or

by recognised agent, while, with reference to the signing by the applicant, it has not been stated that it should be signed personally by the applicant.

In other words, a! general power of attorney agent, as in this case, when he signs the application for eviction, under Rule 11(3) of the Rules, it shall

be as good as having been signed by the applicant herself. Thus, on a due considerations of the provisions of the Act, the contents of the power

executed by the landlady in favour of the agent and on the facts of this case, it cannot be said that there was any violation of Rule 11(3) of the

Rules framed under the Act and the application for eviction was rightly entertained.

Learned Counsel for the petitioner next contended that the application for eviction filed by the landlady lacked in bona fides. According to

learned Counsel, the landlady is a citizen of United Kingdom and cannot at her will, visit this country and if she is not able to obtain the necessary

visa, there is no question of her coming down to India for the purposes of staying in the premises in the occupation of the petitioner and this would

establish that the requirement is not bona fide, but oblique and motivated. On the other hand, learned Counsel for the respondents submitted that

the evidence of P.Ws.1 and 2 clearly established that the respondent as well as the members of her family were living here in a rented house and

had also kept their furniture, valuables and other belongings in the rented house and the respondent desired only to have her own premises for

keeping her house-hold articles and other valuables and to use the same whenever she came down to this country. Indeed, learned Counsel drew

attention to the specific evidence of P. W.2 to the effect that she was preparing to come down to this country once and for all with bag and

baggage and that would necessitate her staying permanently in this country and contended that when her husband is already here and she desires to

join him along with her children, the requirement of that purpose, cannot at all be characterised to be lacking in bona fides.

The premises in the occupation of the petitioner is the only residential building in the City owned by the landlady. There is no dispute regarding

this. Though the. petitioner denied that the landlady was in occupation of a tenanted premises, Ex.P-2 clearly establishes that she was in occupation

of the first floor of Door No. 4, IV Cross Road, C.I.T. Colony, Madras-4, as a tenant under one Mr. T.A. Ramachandran. The husband of the

landlady, examined as P.W. 1, has also spoken to this. The petitioner, examined as R.W. 1, had also accepted that the husband of the landlady is

living in Door No. 4, IV Cross Road, C.I.T. Colony, Madras-4 and that he was permanently staying in Mylapore and whenever he was in

Madras, he used to stay at that place in C.I.T. Colony. R.W. 1 also accepted that from 196S, the landlady had let out her premises and was living

in a rented premises. From this, it is seen that the landlady was in the occupation of a rented premises only. Though in the course of his evidence,

the petitioner, as P.W. 1, stated that the husband of the landlady owned door No. 58, he admitted that that building was a non-residential building.

The landlady or any member of her family, is thus established to be not occupying a residential building of their own in the City of Madras. The

only other requirement to be made out is the bona fides of the claim. In this connection, the evidence of P.Ws. 1 and 2 is relevant. P.W. 1 in his

evidence, had stated that he had retired in 1984, after serving in Muscat in 1980. He had also spoken to the landlady and his second son having

come down to India in 1986, to enable his son to complete his studies in Ahmedabad. Referring to his coming down to Madras in 1989. P.W.2

stated that he intended to stay here permanently and that his wife and second son were expected to come down in August or September, 1989.

P.W. 1 also referred to his temporary stay in a room in the house belonging to his brother and stated that he cannot stay there permanently. P.W. 1

had also referred to his wife having stayed for 25 years in the building from 1956 till 1981 and that his wife and another daughter had also decided

to come down to this place. Asuggestion that his wife and second daughter are going to permanently stay in U.K. was denied by him. Yet another

suggestion that the application for eviction was the outcome of a refusal to accede to the demand for payment of enhanced rent, was also denied

by P.W. 1. P.W. 1 had also stated that whenever his wife and other children desired to come, they could do so. Examined as P.W.2, the landlady

stated that she came down to India on 26.11.1989 and that she was proceeding to London on 21.3.1990 to bring back the family with bag and

baggage. In the course of her cross examination, P. W.2 stated that at the time of her examination in Court on 20.3.1990 she was a tenant of door

No. 44, Habibullah Road, T. Nagar, Madras-17 and its owner was one A.R. Srinivasan, P. W.2 further stated that the premises in the occupation

of the petitioner, was required for her own use and the use of her husband and family. She also stated that she cannot permanently stay in the

U.K., but that she can go out. A suggestion that she did not have any idea whatever of coming down and staying at Madras, was denied by her.

Yet another suggestion that the refusal of the petitioner to pay a higher rent occasioned in the filing of the eviction petition, was denied by her. The

petitioner, examined as R. W. 1, stated that P.W. 1 was living permanently in Mylapore as a tenant in Door No. 4, IV Cross Road, C.I.T.

Colony, Madras-4 and that he used to stay in that place in C.I.T. Colony, Madras-4, whenever he came down from Muscat. R. W. 1 also stated

that there was a demand for enhanced rent and that he was not agreeable, though he also accepted that he had not stated so in his counter. The

brother-in-law of the petitioner examined as R.W.2, in his evidence stated that in 1982, the landlady was residing as a tenant in C.I.T. Colony and

that she and her husband used to come down. He had also referred to the demand for enhanced rent and the refusal of the petitioner to pay that. In

his cross examination, he admitted that he had not received summons for giving evidence and that at the instance of his uncle, he came and gave

evidence.

On a consideration of the evidence thus made available, it is seen that though P.W. 1 earlier was outside this country in connection with his

work, he has since retired and is now permanently in Madras, living in a small room belonging to his brother. The landlady has also in her evidence

as P.W.2, stated that she is desirous of coming down to Madras along with her children. The evidence also discloses that the landlady and the

members of her family, whenever they are in Madras, have been staying only in a rented premises, either in C.I.T. Colony or in some other place.

The need of the landlady, wife of P.W. 1 to join her husband along with her children, in a premises of her own, cannot be characterised to be

lacking in bona fides. Though it was said that the landlady and her children may not be permitted to come down to India, that in my view, is not

really decisive of the question of bona fides, especially when the evidence clearly establishes that on a prior occasion, the landlady and her children

had been here along with P.W. 1 and had stayed here also. The only other circumstance that was sought to be put against the respondent as

showing lack of bona fides, was that there was a demand for a higher rent and the petitioner refused to pay the same. To support this, there is

absolutely no material. The petitioner had not even raised a plea to this effect in the counter filed by him, though something about that had been

stated in the oral evidence. There is no other material at all to doubt the bona fides of the requirement of the landlady. A consideration of the

available materials, clearly establishes that the landlady, whose husband is now permanently in Madras, is desirous of joining him along with the

children or other members of the family, and to come to live with her husband permanently in Madras and that requirement of the landlady is

clearly established to be genuine and bona fide and not oblique or motivated. The appellate authority was, therefore, quite right in its conclusion in

this regard. No other point was urged. The C.R.P., is, therefore, dismissed with costs.

At the conclusion of the hearing of the revision, counsel on both sides were asked to inform the court about the time that may be required in the

event of the order of eviction passed by the appellate authority being upheld. Learned Counsel for the respondent was fair enough to agree to grant

four months'' time to the petitioner for vacating and handing over vacant possession of the premises in the occupation of the petitioner, but learned

Counsel for the petitioner wanted a year''s time, to which, learned Counsel for the respondent was not agreeable. Under those circumstances, the

petitioner is granted four months'' time from today to vacate and hand over vacant possession of the premises in his occupation to the respondent,

but this will be subject to the petitioner filing an affidavit of undertaking to that effect before this Court within 10 days from to-day, failing which, the

order of eviction can be put into execution forthwith. The Court made the following

ORDER

25-9-7992

While disposing of C.R.P. No. 1840 of 1992 on 4.9.1992, four months time from that date was granted to the petitioner to vacate and hand over

vacant possession of the premises in his occupation to the respondent, but that was made subject to the filing of an affidavit of undertaking by the

petitioner in the civil revision petition to that effect before this Court within ten days from 4.9.1992. What was intended was the filing of an affidavit

of unconditional undertaking by the petitioner, as a condition precedent for the grant of time. The affidavit now filed does not conform to the order

passed. Therefore, that part of the order in the C.R.P. granting time, will stand deleted.