V.N. Sudheer v. S. Raman Menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU THURSDAY, THE 30TH DAY OF NOVEMBER 2017 / 9TH AGRAHAYANA, 1939 RCRev..No. 304 of 2017 AGAINST THE ORDER/JUDGMENT IN RCA 16/2016 of ADDL.D.C. & SESSIONS COURT - VI, THIRUVANANTHAPURAM DATED 19-08-2017 AGAINST THE ORDER/JUDGMENT IN RCP 18/2012 of RENT CONTROL COURT, TVM DATED 31-10-2015 REVISION PETITIONER(S) V.N.SUDHEER, AGED 52 YEARS, S/O.LATE NARAYANAN NAIR, "VAHINI PRINTERS", TC25/272, PULIMOODU, GOP, THIRUVANANTHAPURAM-695001. BY ADVS.SRI.K.B.PRADEEP SMT.J.HARIPRIYA RESPONDENT(S): S.RAMAN MENON AGED 56 YEARS, S/O.SREEDHARA MENON, RESIDED AT 'PADMASREE', OPP. RAJ BHAVAN, KOWDIAR P.O., THIRUVANANTHAPURAM, NOW DOING BUSINESS AND RESIDING AT 114-A, ARTHUR ROAD, 04-03, KATONG PARK TOWER, SINGAPORE REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SURESH M.PILLAI, AGED 51 YEARS, S/O.K.G.MADHAVAN PILLAI, RESIDING AT 12-Q, AASHIYANAN, HORIZON PARK, ALTHRA ROAD, THIRUVANANTHAPURAM-695010. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 30-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **K.HARILAL & A.M.BABU, JJ. “CR” ................................................. RCR Nos 304, 312 and 394 of 2017 ................................................. Dated 30[th] November, 2017** ## **COMMON ORDER** ## **K.HARILAL, J.** The learned counsel for the petitioner in RCR 312/2017 advanced arguments challenging the maintainability of the Rent Control Petition itself. According to the learned counsel the Rent Control Petition was filed through a power of attorney holder without even producing the power of attorney. Therefore the Rent Control Petition should have been dismissed in limine. Secondly, it is contended that the power of attorney was not in the proper form. Therefore no presumption can be drawn as regards the genuineness of the power of attorney. Thirdly, it is contended that no order of eviction under Sec.11(4) (iv) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short)would have been passed, unless the original landlord was examined to prove the bona fides of the need. The power of attorney holder is incompetent to swear on bona fides of the need and the non-examination of the landlord is fatal. Lastly, it is contended that the proposed construction is a joint venture comprised in 9.5 cents of property belonging to the petitioner and 2 RCR Nos 304, 312 and 394 of 2017 4 cents of property belonging to one Nandan Menon, the brother of the petitioner. The said Nandan Menon is not a party in the Rent Control Petition. Since he is not made a party in the Rent Control Revision, the right of induction under the proviso cannot be effected or enforced and thereby they will be deprived of their valuable right of induction provided in the proviso to Sec.11 (4) (iv) of the Act. Further it is contended that the power of attorney was not proved as required under Sec.72 of the Indian Evidence Act. 2. On the other hand, the learned counsel for the petitioner advanced arguments to justify the concurrent findings of the courts below. Further, it is contended that the power of attorney was produced along with the Rent Control Petition itself and no objection was raised in the counter statement challenging the genuineness or the form of power of attorney. According to the learned counsel for the petitioner, in view of the statutory requirements under Sec.11 (4) (iv) of the Act it cannot be said that unless the landlord himself is examined in evidence the bona fides of the need for reconstruction could not be proved. Further it is contended that the petitioner himself has made an 3 RCR Nos 304, 312 and 394 of 2017 undertaking before the appellate court expressing his willingness to put the tenant back in possession of the shop room having area equal to the tenanted premises in the newly constructed building. According to him, there is no landlord-tenant relationship between the said Nandan Menon and the respondents. Therefore the said Nandan Menon was not a necessary party in the Rent Control Petition. In the Rent Control Petition itself the petitioner has specifically stated that the petitioner is ready to complete the reconstruction within the period fixed by the court and the tenant who is occupying the building in the property owned by Nandan Menon has already agreed to surrender the tenanted premises for reconstruction. Therefore at any point of view the right of reinduction provided under the proviso will not remain unenforced. 3. Coming to the arguments revolving around the power of attorney, we have verified the date of production of the power of attorney before the Rent Control Court and we found that the power of attorney was filed along with the Rent Control Petition on 1.3.2012. It follows that the non-production of the power of attorney was raised in the objection and in the arguments without noticing the production of the power of attorney along with the 4 RCR Nos 304, 312 and 394 of 2017 Rent Control Petition in the Rent Control Court. As rightly contended by the learned counsel for the respondent, the genuineness of the power of attorney or the form of power of attorney, was not challenged in the objection filed before the Rent Control Court. We have meticulously examined the contents of the power of attorney and we find that as rightly contended by the learned counsel for the petitioner, no authentication was made in the power of attorney. Therefore we find that the presumption under Sec.85 of the Indian Evidence Act cannot be drawn as such but we are of the opinion that the said document can be considered as an unattested document as provided under Sec.72 of the Indian Evidence Act. In the above context, the decision in **2014 (4) KLT 776 (DB) (Azeez vs. Muhammad)** this Court held that when power of attorney was produced before the Rent Control Court and parties raised no challenge to the said documents and when the court acts on the documents, it follows that the power of attorney holder was fully competent to file petition for eviction. In the absence of any challenge against the contents of the power of attorney in the objection or in the evidence the Rent Control Court is justified in proceeding with the 5 RCR Nos 304, 312 and 394 of 2017 Rent Control Petition on the basis of the power of attorney. 4. Coming to the second point, according to the learned counsel, the non-examination of the landlord is fatal and the bona fides of the requirements for reconstruction could not be proved unless the landlord himself is examined in evidence. Bona fide means the state of mind. The bona fides of a desire can be perceived from the sense from the evidence on record and the examination of the person who nurtures the desire in mind. In English language the same word can be used with different sense under different situations. On an analysis of the scheme granting order of eviction under Sec.11 it could be seen that the order of eviction is provided to the landlord under different grounds constituting entirely different and distinct situations. The word bona fide is seen employed under Sec.11 (3), 11(4), 11(7) and 11 (8) of the Act. On a close reading of the aforesaid provisions in juxtaposition we are of the opinion that the word bona fide is to be interpreted in view of the statutory requirements under which the said word bona fide is employed in the section. In the case of Sec.11 (3) bona fide need may be an honest and sincere desire kept intact in the mind of the landlord alone. So it can be tested 6 RCR Nos 304, 312 and 394 of 2017 by examining the landlord who entertained such a desire only. But in the case of Sec.11(4)(iv) the statutory requirements are (i) the condition of the building which requires reconstruction, (ii) possession of licence and plan for reconstruction and (iii) the ability to reconstruct the building. If the landlord satisfies the aforesaid requirements, he would get an order of eviction. So on analysis of the statutory requirement under Sec.11 (4) (iv) we are of the opinion that unlike bona fide employed under Sec.11 (3), 11 (7) and 11 (8) the bona fides of the requirement for reconstruction can be manifested through other material evidence which would satisfy the requirements under the said provisions. The condition of the building which requires reconstruction can be proved by the commission report. The production of licence and plan is sufficient to satisfy the second requirement. Similarly, the ability to reconstruct the building can be proved by production of document showing financial capacity for reconstruction. Thus we are of the opinion that the bona fides of the facts constituting the statutory requirements under Sec.11 (4) (iv) can be provided by other evidence without examining the landlord himself. The above view is fortified by the decision of this Court in **2009** 7 RCR Nos 304, 312 and 394 of 2017 ## **(1)KLT 425 (Subramaniyan Pillai vs. Shamsar Jihan)** **Para 39** - It cannot be said that it is the invariable rule of law that the bona fide requirement for reconstruction of the building can be proved only by examining the landlord or landlady. For that reason alone, a petition cannot be dismissed. The bona fide requirement is a matter to be inferred from the various circumstances as proved to be existing in the case and it is for the court to record its satisfaction that the requirement pleaded is bona fide. In other words, even if the landlord/landlady come forward and say that he/she bona fide require the building for reconstruction, the court is not bound to order eviction unless it adjudges and finds about the bona fide requirement on an assessment of the materials produced in the case. Thus, it is a matter where an inference is to be drawn from the materials produced. The provision is clear that it puts the duty on the court to satisfy itself of the bona fide requirement before ordering eviction. 5. The learned counsel for the petitioner cited **2005 (2) KLT 669 (Ratheesh Kumar vs Jithendra Kumar)** and invited our attention to paragraph 12 to substantiate the point that power of attorney is incompetent to depose for and on behalf of the principal. We have carefully gone through para 12 in the above decision. But, there, the question was whether a power of attorney holder can depose in the place of principal and instead of the principal for the acts done by the principal. As rightly contended by the learned counsel for the petitioner in the said decision this Court held that the power of attorney holder cannot 8 RCR Nos 304, 312 and 394 of 2017 depose for the principal in respect of the matters of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. But in the instant case the act done was not a matter in dispute, but, here reconstruction is an act to be done in future, after getting an order of eviction and it is the issue. Here, when the statutory requirement was satisfied by producing other evidence nothing was required to be elicited or pulled out from the personal knowledge of the landlord. Therefore we find that the nonexamination of the landlord in a Rent Control Petition seeking an order of eviction under Sec.11 (4) (iv) of the Act is not fatal if the landlord succeeds in proving the statutory requirements under Sec. 11 (4) (iv) by other evidence on record to the satisfaction of the court. 6. The last contention was that the power of attorney was not proved as required under Sec.72 of the Indian Evidence Act. We have already held that no presumption under Sec.85 can be drawn as to authentication of the power of attorney as such an authentication was not made in the power of attorney. According to Sec.72 of the Indian Evidence Act an attested document not 9 RCR Nos 304, 312 and 394 of 2017 required to be attested may be proved as it was unattested. No specific mode of proof was specified under Sec.72 of the Indian Evidence Act. Here, the grantee of the power of attorney was examined to prove the power of attorney and no question was put to him while he was in the witness box challenging the genuineness or any kind of legal infirmities in the power of attorney. 7. In the above view, the contention raised by the learned counsel for the petitioner in this respect also would stand repelled. No other contention was raised in this revision petition. Therefore this Court is not inclined to reappraise the other findings whereby the courts below granted an order of eviction under Sec.11(4) (iv). 8. The learned counsel for the petitioner vehemently contended that the non-impleading of Nandan Menon with whom the petitioner intended to reconstruct the building as a joint venture is fatal. As rightly submitted by the learned counsel for the respondent, we are of the opinion that in the absence of landlord-tenant relationship the said Nandan Menon was not a necessary party in the Rent Control Revision. Further, it is 10 RCR Nos 304, 312 and 394 of 2017 contended by the learned counsel for the respondent that since the proposed construction is a joint venture, the right to reinduction provided under the proviso to Sec.11(4) (iv) cannot be effected. We find some force in the apprehension expressed by the learned counsel for the petitioner. But, we further find that the right of re-induction provided under Sec.11 (4) (iv) is a statutory right and that landlord cannot escape from the statutory mandate after obtaining an order of eviction. But to ensure the right of the tenants the Court can impose necessary conditions in the order of eviction also. 9. In the above analysis, we find that there is no illegality or impropriety in the impugned judgment under challenge. The respondents shall vacate the respective tenanted premises within three months from today or on vacation of tenanted premises in the 4 cents of property belong to Nandan Menon, whichever is later. It is made clear that the respondents shall be accommodated in the portion of the building which would be reconstructed in the 9.5 cents of property itself. The respondents shall file an affidavit within two weeks from today expressing their willingness to surrender the respective petition schedule shop 11 RCR Nos 304, 312 and 394 of 2017 room in accordance with the conditions prescribed by this Court in this order. All the three Rent Control Revisions are dismissed. sd/- **K.HARILAL Judge** sd/- **A.M.BABU Judge** _sks/1.12.2017_