SUDHEER Vs. RAMAN MENON

JUDGEMENT

(1.) 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 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 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 re- induction 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 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 Rent Control Petition on the basis of the power of attorney.