Anis Rahim v. Kerala Tourism Development Corporation Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 27TH DAY OF MARCH 2018 / 6TH CHAITHRA, 1940 RSA.No. 1040 of 2016 (F) AGAINST THE JUDGMENT & DECREE DATED 19-01-2016 IN AS NO. 37/2014 of II ADDITIONAL SUB COURT,ERNAKULAM AGAINST THE JUDGMENT AND DECREE DATED 27.06.2014 IN OS NO.571/2013 of II ADDITIONAL MUNSIFF'S COURT, ERNAKULAM ## APPELLANT/APPELLANT/DEFENDANT: ANIS RAHIM AGED 41, S/O.M.A.RAHIM SHOP NO.31, K.T.D.C. SHOPPING COMPLEX, MARINE DRIVE, ERNAKULAM-682011. BY ADV.SRI.V.PHILIP MATHEWS ## RESPONDENT/RESPONDENT/PLAINTIFF: KERALA TOURISM DEVELOPMENT CORPORATION LIMITED., (GOVT. OF KERALA UNDERTAKING) CORPORATE OFFICE, MASCOT SQUARE, P.B.NO.5424, TRIVANDRUM-695033, KERALA REPRESENTED BY THE REGIONAL MANAGER, PRINCIPAL OFFICER OF REGIONAL OFFICE (CENTRAL) OF K.T.D.C., HOTELS AND RESORTS LTD., MR.MANOJ KUMAR P.N., AGED 43, S/O.P.R.NARAYANAN NAIR. BY ADV.SRI.THOMAS MATHEW NELLIMOOTTIL, STANDING COUNSEL, KTDC THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27-03-2018 ALONG WITH RSA NO.1216 OF 2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J. -------------------------------------R.S.A. Nos.1040 and 1216 of 2016 -------------------------------------Dated this the 27[th] day of March, 2018** ## **COMMON JUDGMENT** Appellant in these appeals is the tenant in respect of two buildings owned by the respondent Corporation. Respondent contended that it is a Government company and a public sector undertaking. It is represented in the suits by the Principal Officer, Regional Manager, Regional Office (Central) at Kochi. It is the case of the signatory to the plaints that he is competent to verify and sign for and on behalf of the Corporation. It is also contended that the plaint schedule buildings are exempted from the purview of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short, “the Act”). According to the averments in the plaints, the buildings mentioned therein were let out to the appellant for a period of five years with effect from 15.07.2006 to 14.07.2011 on the specific conditions set out in Ext.A6. Rent agreed to be paid by the appellant was `2,317/- per month for each building. There is a stipulation in Ext.A6 to pay interest for the defaulted payment of rent. It is the case that the appellant kept the rent in arrears and term of the leases had been expired. A notice was issued by the respondent Corporation demanding vacant possession of the buildings for which the appellant did not agree. 2 RSA Nos.1040 & 1216 of 2016 Hence the suits. 2. Appellant appeared in both the cases and contested. According to him, the suit is not filed in accordance with the provisions in Order XXIX of the Code of Civil Procedure, 1908 (in short, “the Code”). Since the buildings are situated in an area covered by the Act, the suits filed are incompetent. The signatory to the plaints was not properly authorised by the Board of Directors of the Corporation to file the suits. For that reason alone, the suits are not maintainable. No document is produced to show that the Board of Directors had passed a resolution in order to file the suits. Another contention raised is regarding the territorial jurisdiction of the court to entertain the suits. Going by Clause 23 in Ext.A6, courts at Thiruvananthapuram only have jurisdiction to try the suits. Further averments in the plaints are also denied by the appellant/defendant. 3. Trial court examined one witness each on the side of the appellant and the respondent. Exts.A1 to A11 and B1 to B4 were marked. Trial court decreed the suits directing the appellant to vacate from the plaint schedule buildings. Feeling aggrieved the appellant preferred two appeals before the Court of Subordinate Judge, Ernakulam as A.S.Nos.37 of 2014 and 38 of 2014. The lower appellate court after reconsidering the entire evidence dismissed the appeals confirming the decree for eviction 3 RSA Nos.1040 & 1216 of 2016 passed by the trial court. 4. At the time of admission a learned single Judge framed the following substantial questions of law: I. Whether the court below has erred in taking judicial notice of the gazette notification, which is said to have been published exempting the plaintiff from the provisions of the Kerala Building (Lease and Rent Control) Act? II. Whether the Regional Manager of the respondent is competent to act as Principal Officer of the respondent as provided under Order XXIX Rule 1 of the Code of Civil Procedure, 1908? 5. Heard the learned counsel on both sides. 6. After hearing the learned counsel on both sides, two additional questions are raised as follows: I. Whether the courts below had territorial jurisdiction to try and dispose of the case? II. Whether the Act applied to the buildings sought to be evicted? 7. All the above questions can be considered by referring to the following facts and legal issues. 8. Learned counsel for the appellant contended that the courts below were carried away by the impression that the claim for eviction being 4 RSA Nos.1040 & 1216 of 2016 made by a Government owned Corporation, the rights of the individual tenant need not be considered above the interest of the State. According to him, the trial court had no territorial jurisdiction to entertain the case since Clause 23 in Ext.A6 clearly shows that the courts at Thiruvananthapuram alone were having jurisdiction to try any suit or legal proceedings arising out of or concerning the terms of agreement. Trial court answered this point by holding that this Clause is inoperative for the reason that the agreement had come to an end by efflux of time. I think there can be a better reasoning for negativing this contention. The suits are relating to eviction of an immovable property and therefore they are covered by Section 16 of the Code. It is clear from Section 16 of the Code that a suit for recovery of immovable property with or without rent or profits shall be instituted in the courts within the local limits of whose jurisdiction the property is situate. Going by the phraseology employed in Section 16 of the Code, it is evident that in a suit of this nature, there is no option available to the parties to choose another forum. Merely because as per Clause 23 in Ext.A6 the parties have agreed to litigate on all the matters covered thereunder before the courts at Thiruvananthapuram, they cannot confer jurisdiction on a court which does not have any jurisdiction by the provisions of law. In other words, it is the settled legal principle that the 5 RSA Nos.1040 & 1216 of 2016 parties are not entitled to confer jurisdiction by agreement on a court if it does not have jurisdiction in accordance with the legal principles. It is therefore clear that Clause 23 in Ext.A6 cannot operate against the prescription in Section 16 of the Code. Therefore the plea regarding lack of territorial jurisdiction which was considered by the courts below and negatived is only to be confirmed, however, for a different reason. 9. Another contention raised by the learned counsel for the appellant is regarding the applicability of the Act to this proceedings. In paragraph 2 of the plaint it is averred that the Act is not applicable to the buildings owned by the respondent/plaintiff Corporation. It is apposite to note that the suits were originally filed by an entity called K.T.D.C. Hotels and Resorts Ltd. Later, as per order on I.A.No.4131 of 2014 dated 16.06.2014, name of plaintiff was changed as Kerala Tourism Development Corporation Ltd. The Standing Counsel appearing for the respondent Corporation contended that as per Government notification bearing No.8815/E2/81/PW dated 22.06.1981 by virtue of powers under Section 25(1) of the Act, the Government of Kerala has exempted the buildings owned by K.T.D.C. from all the provisions of the Act. It is a dispute raised by the learned counsel for the appellant that this notification was not produced either before the trial court or before the lower appellate court. 6 RSA Nos.1040 & 1216 of 2016 As per two interlocutory applications filed in these appeals, the respondent Corporation has produced a copy of the said notification. Appellant had filed a counter opposing reception of the notification. It is argued on behalf of the appellant that the courts below should not have accepted the contention raised by the respondent Corporation that its buildings are exempted from the application of the Act. It is seen from the judgment of the lower appellate court that Section 57 of the Indian Evidence Act, 1872 (in short, “the Evidence Act”) is relied on to find that the buildings owned by the Corporation are exempted from the purview of the Act. Learned counsel for the appellant relying on Section 57 of the Evidence Act contended that none of the materials mentioned therein would enable the Corporation to raise a contention that a gazette notification, which was not produced, can be inferred for arriving at a finding that exemption was available to their buildings. It can be seen from Section 78 of the Evidence Act that the notifications of the Central Government or of any State Government or any department of any State Government may be proved by producing the original or by a copy certified by the legal keeper thereof and by other means prescribed in the Section, which we are not concerned. The observation by the trial Judge and the lower appellate Judge that they were satisfied with reference to the gazette concerned RSA Nos.1040 & 1216 of 2016 7 cannot be disputed in a second appeal. Further, Section 74 of the Evidence Act would show that the notification mentioned above, passed in the favour of the Corporation, will be a public document as defined therein. It may be true that the Corporation could have produced the notification before the courts dealing with the facts. Even if I discard the document produced at the second appeal stage, having regard to the reasoning adopted by the courts below, I find no reason to enter a finding that the courts below committed a mistake in affirming the exemption claimed in respect of the buildings owned by the Corporation. Further, in the plaint itself they have claimed exemption which the appellant/defendant had understood perfectly well and replied appropriately in the written statement. It cannot be said that the appellant had suffered any prejudice on account of the non-production of the notification before the court below. Hence, this contention cannot be accepted. 10. Learned counsel for the appellant further contended that the suits are not maintainable for the reason that Ext.A3, a resolution purported to have been passed by the Board of Director of the Corporation, was not produced. Also, the valuation of the suit claim was not properly done. Further, the averments in the plaint and prayer would also show that the suit should have been one for recovery of property on 8 RSA Nos.1040 & 1216 of 2016 the strength of title. Per contra, learned counsel for the respondent Corporation contended that there is absolutely nothing wrong in the frame of the suits and the courts below considered this contention and repelled the same. 11. In the plaint, it is mentioned that the jural relationship between the respondent and appellant was that of landlord and tenant. After termination of the tenancy, it is contended in the plaints that the appellant/defendant became a trespasser as he was not entitled to possession of the buildings from the date of issue of notices for eviction. It is also seen from the prayer portion that the appellant was liable to pay damages for use and occupation at the rate of `7,050/- per month with 10% annual increase. It is seen that no court fee had been paid under Section 30 of the Kerala Courts Fees and Suits Valuation Act, 1959; instead, Section 43(2) of the Court Fees Act was invoked for paying the court fee. According to the learned counsel for the appellant, the court fee paid under Section 43 of the Court Fees Act is incorrect as the respondent has not specified the rent for the building payable for the year next before the suit. It is seen from the judgment of the trial court that the issue regarding valuation and court fee was raised and it was answered in paragraph 10. It is observed by the trial court that no material to establish 9 RSA Nos.1040 & 1216 of 2016 that there was a mistake in showing and computing court fee was brought out by the appellant. It is also found that going by Section 12(2) of the Court Fees Act, the court is bound to decide the issue regarding court fee before recording evidence as Section 12(5) of the Court Fees Act prohibits determination of such questions after evidence is recorded. It is seen from the appellate judgment that no such question was urged and considered by the lower appellate court. Therefore, in this second appeal, correctness of valuation and court fee paid cannot be decided. 12. In the plaint it is contended that the appellant is a trespasser after the expiry of lease. True, the plaint is not very happily worded. The draftsman of the plaint did not consider the legal implication of describing a tenant as a trespasser after expiry of the lease. It has come out in evidence that the appellant has paid amounts to the respondent, though it may not be treated as rent after termination of the tenancy. The appellant has no case, either in the written statement or at the time of evidence, that he has renounced his character as tenant and re-entered the property with a hostile animus to become a trespasser. Therefore the observation in the plaints, though legally incorrect and unsuitable to the other pleadings, cannot be taken as a ground to hold that there should have been a prayer for recovery of possession of the building on the strength of title and the 10 RSA Nos.1040 & 1216 of 2016 Corporation ought to have paid court fee under Section 30 of the Court Fees Act. 13. Learned counsel for the appellant further contended that the suit is not filed in accordance with the provisions in Order XXIX of the Code. Order XXIX of the Code says that in suits by or against a Corporation, any pleading may be signed and verified on behalf of the Corporation by the Secretary or by any director or other principal officer of the Corporation who is able to depose to the facts of the case. According to the averments in the plaints, the signatory to the plaints, viz., Manager, Regional Office (Central), Ernakulam is competent to verify and sign the plaints for and on behalf of the Corporation. Learned counsel for the appellant contended that Ext.A3, which is said to be a resolution taken by the Director Board of the Corporation authorising the Manager, Regional Office (Central), was not produced along with the plaints. According to him, the resolution should have been produced along with the plaints and the court should not have numbered the plaints without that document. It is true that the document should have been produced along with plaints. It is also contended that the said document should not have been received subsequently by an interlocutory application in the absence of pleadings to that effect. I agree with the argument of the appellant that the document 11 RSA Nos.1040 & 1216 of 2016 could have been better produced along with the plaints. However, the document was produced through an interlocutory application at a later point of time. It cannot be said that there is no pleading with reference to the authority of the signatory to the plaint to institute the suit because in paragraph (1) itself the signatory has asserted his authority to do so. Therefore this contention of the appellant cannot be accepted. 14. Ext.A3 was produced along with a separate application belatedly and that document was marked in the proof affidavit filed by the witness examined on the side of the respondent. It is the complaint raised by the appellant that without specifying the nature and purpose of the documents, simply certain documents were enlisted and they were marked without application of mind. This practice has to be deprecated. Filing of affidavit in lieu of chief examination itself is a facility provided to the litigant in order to avoid wasting of judicial time and also to attain clarity. It is seen that no serious attempt was made to raise any objection at the time of proving the document, although an objection had been filed to the interlocutory application by which the document was produced. It is also contended that most of the documents were photocopies and their originals were not produced. Endorsement by the Presiding Officer that the documents were marked with objection is also pointed out by the 12 RSA Nos.1040 & 1216 of 2016 learned counsel for the appellant. These aspects were considered by the courts below and Ext.A3 was accepted as a genuine document authorising the Manager of the Regional Office to institute proceedings for eviction of tenants. Even though Ext.A3 was not produced along with the plaint, from the evidence adduced by the appellant it is clear that he did not suffer any prejudice on account of the non-production of that document. Therefore this contention of the appellant has to fail. 15. Learned counsel for the respondent relying on the decision of the Supreme Court in **United Bank of India v. Naresh Kumar and others (AIR 1997 SC 3)** contended that suit instituted or defended by a public Corporation should not be defeated on mere technicality taking into account the fact that the public interest will be defeated on adhering to technicality. In paragraph 9 the following observations are made: _“In cases where suits are instituted or defended on behalf of a public corporation like bank, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should_ 13 RSA Nos.1040 & 1216 of 2016 _not be allowed to be defeated on account of a procedural irregularity which is curable.”_ 16. Relying on an unreported decision of this Court in R.S.A.No.1071 of 2012 dated 06.09.2012 it is contended by the learned standing counsel for the respondent that the competency of the Regional Manager to verify and sign the plaint has been upheld by this Court. The learned single Judge found that the suit as verified and signed by the Regional manager was maintainable with reference to the provisions in Order XXIX Rule 1 of the Code. 17. After considering the facts and circumstances and the submissions at the Bar, I find no reason to decide the substantial questions of law in favour of the appellant. Therefore, the appeals are to be dismissed. Having regard to the facts and circumstances and especially the fact that the appellant is doing business in the premises, I find that a reasonable time has to be given to him to vacate the premises. Hence the following directions: Appeals are hereby dismissed confirming the judgment and decree passed by the courts below. Appellant shall be allowed to continue in the buildings for a period of three months from today on the following conditions: 14 RSA Nos.1040 & 1216 of 2016 I. He shall file an undertaking affidavit before the trial court stating that he shall vacate the premises within three months from today and he will not make any further claim regarding the buildings. The affidavit shall be filed within a month. II. He shall pay the amounts covered by the decree and a sum of `7,020/- per month for three months, failing which the respondent is permitted to evict the appellant even before the expiry of three months. The entire amount shall be paid within a period of one month. Submission by the learned counsel for the appellant that this judgment shall not stand in the way of the appellant approaching the respondent for a further tenancy and the respondent considering the request is recorded. Appeals are disposed accordingly. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** **cks**