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Judgment
Thomas P. Joseph, J.—Admit. 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?
Respondent appears through counsel.
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.
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.
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 Rs. 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 Rs. 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.
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.
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 1st appellant gave evidence as 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 Rs.
71,011/- with future interest at the rate of 6% per annum. That judgment and decree are confirmed by the first appellate court.
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 Rajghria Paper Mills Ltd. Vs. The General Manager, Indian Security Press and Another, .
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 CPC (16th Edition).
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.
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 XXIX of the CPC (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.
As per the above provision a principal officer to the Corporation 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 CPC 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 Caoutchoue Compagnie Vs. Mehta and Co., 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.
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.
Now the appellant is trying to take shelter under the statements 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.
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.
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.
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.
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,
no decree for eviction could have been granted.
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.
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.
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.
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 taking appropriate decision.
The learned counsel then contended that the trial court has granted a decree for recovery of Rs. 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 Rs.
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. 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 Rs. 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 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.