Baburaj and Others vs Dr. M.T. Yacob and Others

Sankarasubban, J.—The original tenant is one Sukumaran. The rent control petition was filed subsequent to his death against the legal representatives of the original tenant. The petition was filed under Sec. 11(2)(b), 11(3) and 11(4)(iv) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as "the Act"). There are three petitioners in the rent control petition, who are the co-owners of the petition schedule building. The ground under Sec. 11(2)(b) of the Act was found against by both the courts but eviction was ordered under Secs. 11(3) and 11(4)(iv) of the Act. Learned counsel for the petitioners submitted that the Rent Control Petition was filed by three petitioners. The petition was signed by two of the petitioners. So far as third petitioner is concerned, it was signed by the power of attorney holder. According to him, it is against Rule 7(3) of the Kerala Buildings (Lease & Rent Control) Rules. Under Rule 7(3) of the Rules, it is stated that an application shall be signed by the applicant or by his counsel and presented to the Rent Control Court by the applicant himself personally or by his authorised agent or by counsel at any time during office hours on a working day. Learned counsel points out that so far as signing is concerned, it should be signed by the applicant and it should be presented by the applicant himself. A reading of the Rules shows that so far as signing is concerned, it should be signed by the applicant. But so far as the presentation is concerned, it says that the application shall be presented by the "applicant himself personally or by his authorised agent". The word "personally" is used only with regard to signing. Further, we are of the view that nothing in the Rule prevents the representation of the party through his authorised agent. Under Rule 23 of the Civil Rules of Practice, if any proceeding which under any provision of law or these rules, is required to be signed or verified by a party, is signed or verified by any other person on his behalf, a written authority in this behalf signed by the party, except in the case of persons under disability, shall be filed in court, with an affidavit by such person verifying the signature of the party, and stating the reasons for the inability of the party to sign or verify the proceeding". Rule 23 deals with presentation of documents in court, which is akin to Rule 7(3) of the Kerala Buildings (Lease & Rent Control) Rules. According to us, since the Rules do not prevent signing by an authorised agent, it cannot be said that since the party has not signed, there is no valid petition. The next contention is regarding Sec. 11(3) of the Act. The landlords require the building for the purpose of constructing a consultancy clinic. The need is that first petitioner has retired from service and his daughter is a doctor, who wants to start a clinic in the petition schedule building. Both the courts have found that this need cannot be said to be a ruse to evict the tenant. Even though it is contended that the landlord had a house at Sankar Nagar, we do not think that it may be proper to contend that they shall not conduct the clinic in this premises. Regarding the second proviso to Sec. 11(3) of the Act, it is stated that 6th respondent is conducting a bakery business in the building. The contention is that she is depending on the income from the business for her livelihood. Learned counsel for the landlord submits that the Section contemplate that tenant should be dependant on the income. The word "tenant" takes in tenants or body of tenants who become tenants on the death of a person. In this case, so far as other petitioners are concerned, no evidence is adduced to show that they are entitled to the benefit of the second proviso to Sec. 11(3) of the Act. Even regarding the sixth respondent, the courts below have found that she has other income. According to us, even supposing she is depending on the income from the business, that will not give the benefit to her because all the tenants are resisting the eviction on the basis that they are in possession of the building as tenants. Hence, they will not be entitled to claim the benefit of second proviso to Sec. 11(3) of the Act. So far as the alternate accommodation is concerned, we agree with the courts below. So far as the ground under Sec. 11(4)(iv) of the Act, we are of the view that it is raised to support the contention under Sec. 11(3) of the Act.

The C.R.P. is dismissed. Considering the circumstances of the case, we grant six months time to the petitioners to vacate the building on condition that they will execute an undertaking before the rent control court within three weeks from today that they will vacate the petition schedule building within six months and shall also pay the arrears of rent and the rent for the period for which they occupy the building. If this undertaking is not filed, the respondents will be entitled to evict the tenant forthwith.