Omana Manoharan v. Kerala Tourism Development Corporation

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH THURSDAY, THE 6TH DAY OF SEPTEMBER 2012/15TH BHADRA 1934 RSA.No. 1071 of 2012 () ----------------------AS.83/2009 of I ADDL.DISTRICT COURT, ERNAKULAM OS.345/2007 of II ADDL.SUB COURT,ERNAKULAM APPELLANT(S)/APPELLANT/DEFENDANT: -------------------------------- MRS.OMANA MANOHARAN, W/O.MANOHARAN,AGED 66 YEARS, SHOP NO.15, KTDC, SHOPPING COMPLEX, KOCHI. BY ADVS.SRI.K.J.KURIACHAN SRI.SUNIL JACOB RESPONDENT(S)/RESPONDENT/PLAINTIFF: ----------------------------------- KERALA TOURISM DEVELOPMENT CORPORATION, (GOVERNMENT OF KERALA UNDERTAKING) CORPORATE OFFICE, YATHRI NIVAS, THYCAUD, TRIVANDRUM-6954014, KERALA, REPRESENTED BY ITS REGIONAL MANAGER SAMRAJ M.JOSEPH. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, STANDING COUNSEL FOR KTDC THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------R.S.A. No.1071 of 2012** **-------------------------------------Dated this the 6[th] day of September, 2012.** ## **JUDGMENT** Admit. 2. The following substantial questions of law are framed for a decision: i. Whether the suit as framed and instituted is maintainable in view of the contention raised by the appellant regarding competency of the person who has verified and signed the plaint? ii. In the absence of payment of court fee under Sec.43 of the Court Fees and Suits Valuation Act (for short, “the Act”), whether the respondent is entitled to get eviction of the appellant from the schedule room? 3. Respondent appears through counsel. 4. Since copy of the relevant records are given to me for perusal and in view of the decision I propose to take in the second appeal it is not necessary to call for the entire records of the case. 5. The second appeal arises from the judgment and decree of the II Additional Sub Court, Ernakulam in O.S.No.345 of 2007, confirmed by the I Additional District Court, Ernakulam in A.S.No.83 of 2009. 2 RSA No.1071/2012 6. The respondent is the Kerala Tourism Development Corporation which owns the shop room referred to in the plaint schedule. It was given on lease to the appellant for a period of five years as per agreement dated 03.11.1998 obliging the appellant to pay `1,135/- per month by way of rent, the electricity/water charges and further that in case of default in payment of rent, requiring the appellant to pay the same with interest at the rate of 18% per annum. The rate of rent was enhanced to `1,185/- per month from 30.01.2003 onwards. The appellant did not opt for renewal of the lease on expiry of the period of lease agreement dated 03.11.1998. It appears that the respondent reduced the rate of rent. But, in spite of that, there was no move from the side of the appellant for renewal of the rental arrangement. The respondent issued Ext.A4, notice terminating the tenancy and demanding vacant possession of the shop room. That notice went unanswered. That was followed by the respondent filing O.S.No.345 of 2007 seeking eviction of the appellant from the shop room with rent arrears. 7. The appellant contended that the suit is barred by res judicata in view of dismissal of O.S.No.434 of 2005 for the very same relief. She also raised certain contentions regarding the rent payable and her right to continue in the shop room. A further contention is that the suit is not maintainable as it is not properly framed. It is contended that the person who verified and signed the plaint is not competent to do so. 8. Before the trial commenced, the Chief Executive Officer of the respondent filed vakalath on behalf of the respondent. The Regional Manager was examined as PW1. The husband of the 1[st] appellant gave evidence as 3 RSA No.1071/2012 DW1. Based on the oral and documentary evidence, the trial court found that the respondent is entitled to get eviction of the appellant from the shop room but, fixed liability of the appellant to pay rent arrears at `71,011/- with future interest at the rate of 6% per annum. That judgment and decree are confirmed by the first appellate court 9. The learned counsel for the appellant would contend that the suit is not maintainable in the manner in which the plaint is verified and signed by one Samraj M.Joseph claiming to be the Regional Manager of the respondent. According to the learned counsel, a Regional Manager of the respondent is not its principal officer competent and authorised to verify and sign pleadings on its behalf. The learned counsel has also invited my attention to the proof affidavit of PW1 where, in paragraph 3, it is stated that there is a change of vakalath for the respondent as the counsel engaged for filing the suit has relinquished vakalath on the request of the respondent. It is further stated in paragraph 3 that in view of the contention taken up by the appellant in her written statement that the person who verified and signed the plaint is not competent to represent the respondent, the Chief Executive Officer filed fresh vakalath who in turn authorised PW1 to conduct the case and give evidence on behalf of the respondent. The learned counsel contends that the above statement in paragraph 3 of the proof affidavit of PW1 bear testimony for the contention of the appellant that the Regional Manager who verified and signed the plaint is not competent to do so, not being a principal officer of the respondent. Reliance is placed on the decision in **M/s.Rajghria Paper Mills Ltd. v. General Manager, Indian Security Press and another (AIR 2000 Delhi** 4 RSA No.1071/2012 **239)** . 10. In response it is contended by the learned counsel for the respondent that though a plea was raised in the written statement as to the competency of the person who verified and signed the plaint, that plea was not pursued in the trial court as revealed by the observations in paragraph 8 of the judgment of the first appellate court. In the circumstances, the appellant cannot raise that contention in the second appeal. It is further pointed out by the learned counsel that the person who has verified and signed the plaint is one of the three Regional Managers of the respondent, he is a principal officer of the respondent and hence competent and authorised to represent the respondent. The learned counsel has also invited my attention to the Commentaries at page 3326 of the Mulla's Code of Civil Procedure (16[th] Edition). 11. I stated that the plaint, (a copy of which is given to me for perusal) is verified and signed by the Regional Manager of the respondent. In the affidavit filed along with the plaint, the said officer has deposed that he is the Regional Manager of the respondent, aware of the facts affirmed by him in that affidavit. He has also stated that he is competent to swear the affidavit. 12. True that a contention is raised by the appellant in the written statement that the said officer is not competent to represent and sign the plaint. Rule 1 of Order XXI _X_ of the Code of Civil Procedure (for short, “the Code”) states 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 the Director or other principal officer of the Corporation who is able to depose facts of the case. 13. As per the above provision a principal officer to the Corporation 5 RSA No.1071/2012 who is able to depose the facts of the case is competent to verify and sign the plaint. The expression 'principal officer' is not defined in the Code. At page 3326 of Mulla's Code of Civil Procedure referred above, the Author that in a case, the Manager at Lucknow of the local branch of the Delhi and London Bank was authorised by a power of attorney to manage the affairs of the bank and to substitute any person for himself. In pursuance of that power, the said Manager of the bank gave a power of attorney to the Accountant of the bank to manage the affairs of the bank but, the power omitted words giving the authority to sue. It was held that the respondent in that case was under the circumstances the principal officer of the bank and that he could as such sign and verify the plaint in a suit filed by the bank. It is also pointed out by the Author that the Calcutta High Court in **International Continental Coutchoue Campagnie v. Mehta (AIR 1927 Calcutta 780)** has held that as regards every pleading on behalf of a company or corporation, the fitness of the person purporting to verify it must be proved by the affidavit. 14. In this case I stated that the Regional Manager who verified and signed the plaint has sworn the affidavit that he is aware of the facts which is deposed (which is reproduced in the plaint as well). I must notice that when PW1 was in the box, no question was put to him on behalf of the appellant that the Regional Manager is incompetent to do so is not a principal officer of the respondent. A perusal of evidence of PW1 would show that there was no challenge to the competency of the Regional Manager to verify and sign the plaint. 15. Now the appellant is trying to take shelter under the statements 6 RSA No.1071/2012 made by PW1 in paragraph 3 of his proof affidavit. There, what is stated is only that in view of the contention the appellant has taken in her written statement as to the competency of the person who has verified and signed the plaint, the Chief Executive Officer of the respondent has filed a fresh vakalath. I am unable to understand the said statement as meaning or indicating that the Regional Manager who has verified and signed the plaint was incompetent to do so being not a principal officer of the Corporation. 16. As rightly observed by the learned Additional District Judge in paragraph 8 of his judgment, the contention regarding competency of the person who verified and signed the plaint was not pursued by the appellant in the trial court. The said contention taken up in the first appellate court was considered and decided by the learned Additional District Judge referring to the provisions of Order XXIX of the Code. 17. Having regard to Rule 1 of Order XXIX of the Code as explained by Mulla in the authority referred to above and in the circumstances stated above, I find myself unable to accept the contention of the appellant that the Regional Manager who verified and signed the plaint is incompetent to do so and hence the suit is not maintainable. 18. The learned counsel for the appellant has raised a contention that the amount of arrears of license fee assessed by the trial court is not correct. However, that being a finding of fact confirmed by the first appellate court, I do not find any substantial question of law involved in that. 19. The next contention raised is that since the respondent has not paid the court fee for the relief of eviction as required under Sec.43 of the Act, 7 RSA No.1071/2012 no decree for eviction could have been granted. 20. In response the learned counsel for the respondent contended that the question of court fee is a matter between the respondent and the State and hence the appellant has no say in that. 21. No doubt, insufficiency of the court fee is by and a large a matter between the plaintiff and the Sate. But, it is not as if a defendant could not point out the fact that there is no court fee paid. I have gone through the copy of plaint and find that the relief of recovery of possession is not valued, nor, court fee paid thereunder. But, for that reason alone the decree for eviction need not be set aside, nor there be a remand of the case. It is sufficient that the defect is cured by the respondent by paying the court fee if required under Sec.43 of the Act. I say so also for the reason that at the appropriate time appellant is not seen to have alerted the trial court about the alleged nonpayment of court fee for the relief of eviction. Hence I am inclined to permit the respondent to pay court fee for the relief of eviction sought for if such court fee is not already paid. 22. The learned counsel for the appellant has submitted that appellant has already made an application before the respondent for renewal of the lease arrangement and that the said application is pending before the respondent. According to the learned counsel, the judgment of this Court may not stand in the way of the respondent considering the application for renewal. 23. So far as the said request is concerned, I make it clear that if any such request for renewal is made, the decision of this Court shall not stand in the way of the respondent considering the said application on its merit and 8 RSA No.1071/2012 taking appropriate decision. 24. The learned counsel then contended that the trial court has granted a decree for recovery of `71,011/- with interest at the rate of 6% per annum. The learned counsel submits that pursuant to the conditional order of stay granted by the first appellate court, the appellant has paid `70,000/- to the respondent. The payment and receipt of the said amount is accepted by the learned counsel for the respondents as well. The learned counsel for the respondent submits that the said amount will be credited in the amount payable by the appellant as per the decree of the trial court as confirmed by the first appellate court. The said submission of the learned counsel is recorded. 25. The learned counsel for the appellant then requested that appellant may be granted three months time to vacate the shop room. It is submitted that in case the respondent does not favourably consider the application for renewal, appellant has to make alternative arrangements. Having heard the learned counsel on both sides I am inclined to allow the request. Resultantly, the second appeal is dismissed with the following directions: i. The sum of `70,000/- (Rupees seventy thousand only) paid by the appellant as per order of the first appellate court to the respondent shall be credited in the amount due from the appellant to the respondent as per the decree of the trial court as confirmed by the first appellate court. ii. The respondent shall pay court fee for the relief of eviction prayed for in the trial court (in case no court fee for the said relief has 9 RSA No.1071/2012 been paid), as provided under the Act before the decree for eviction is executed. iii. The appellant is granted three (3) months time to vacate the shop room. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**