IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 RCRev..No.167 of 2009(A) ----------------------------- RCA.11/2006 of RENT CONTROL APPELLATE AUTHORITY, TRIVANDRUM RCP.93/2004 of ADDL. M.C., TRIVANDRUM .................... REVISION PETITIONER/APPELLANT/PETITIONER ----------------------------------------------------- LALITHA RANI,AGED 60,D/O.LATE RTD.LT.COL P.S.SIVARAMAN,RESIDING AT SUMANGALI,KONDODI, RAMAPURAM P.O.PALA,REP.BY P/A.HR.S.KISHORE CHAND, AGED 51,S/O.T.SEKHARAN PILLAI,RESIDING AT T.C.NO. 39/333 (OLD T.C.NO.17/250-2) ASWATHY HOUSE, POOJAPURA,THIRUVANANTHAPURAM. BY ADV. SRI.NAIR AJAY KRISHNAN SRI.R.T.PRADEEP RESPONDENT(S)/RESPONDENT/COUNTER PETITIONER: ------------------------------------------------------------- SAROJINI AMMA, AGED 66,W/O.LATE SREEDHARAN NAIR, REISIDING AT KUZHIVILA VEEDU,T.C.17/250, CHADIYARALANE,POOJAPURA,THIRUVANANTHAPURAM. ADV. SRI.RAM MOHAN.G. FOR R1 SRI.G.P.SHINOD FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ R. C. R. No.167 of 2009 ------------------------------------------------ Dated this the 16th day of September, 2009 ORDER Pius C. Kuriakose, J The landlady is in revision. The Rent Control Petition filed by the landlady invoking the grounds of bona fide own occupation under Section 11(3) and arrears of rent under Section 11(2)(b) was concurrently dismissed by the Rent Control Court and the Appellate Authority on two reasons. The first reason was that the landlady did not mount the box and that it was her alleged power of attorney holder PW1 who gave evidence on her behalf. The second reason was that Ext.A1 power of attorney, on the strength of which the RCP was instituted does not R. C. R. No.167 of 2009 -2- appear to be a genuine power of attorney since it is the admitted case of the landlady that she is a graduate and the purported signatures of the landlady appearing on Ext.A1 do not appear to have been put by a literate person. In this memorandum of revision filed by the landlady, it is requested that she be afforded an opportunity to give oral evidence to establish the grounds invoked in the Rent Control Petition. 2. We have heard the submissions of Sri.R.T.Pradeep, the learned counsel for the revision petitioner and those of Sri.G.Ram Mohan, the learned counsel for the respondent. Sri.Pradeep submitted that if opportunity is given, the landlady will be willing to be examined on commission so that she herself can R. C. R. No.167 of 2009 -3- give oral evidence regarding the genuineness of the need and the claim projected by her. Sri.Pradeep submitted that even the controversy regarding the genuineness of Ext.A1 power of attorney can be properly settled, if landlady is allowed to give oral evidence. 3. The submissions of Sri.Pradeep were resisted by Sri.Ram Mohan who drew our attention to the findings of the Rent Control Court and Appellate Authority regarding the genuineness of Ext.A1 power of attorney. Sri.Ram Mohan submitted that Ext.A2 lawyer notice issued at a time when Ext.A1 was already executed was sent for the landlady not by the present power of attorney holder under Ext.A1, but by the landlady's father one Sri.Sivaraman Nair. Sri.Ram R. C. R. No.167 of 2009 -4- Mohan further submitted that even during the currency of Ext.A1, the landlady herself has personally issued Ext.A6 notice to the tenant. These are circumstances indicating very strongly that Ext.A1 is not a genuine power of attorney. There is no warrant for interference with the concurrent findings entered by the Rent Control Court and the Appellate Authority that Ext.A1 is not a genuine power of attorney and that the present RCP instituted on the strength of that power of attorney is not maintainable. The learned counsel submitted that the proper course to be adopted in the present circumstances is that the impugned judgment be confirmed and the landlady be permitted to issue a fresh Rent Control Petition on the same cause of action. R. C. R. No.167 of 2009 -5- 4. In reply Sri.Pradeep would submit that Sri.Sivaraman Nair, the former power of attorney holder and the father of the landlady is no more and the power of attorney, if any, in favour of Sivaraman Nair has obviously come to an end. Even the issue regarding the genuineness of Ext.A1 can be decided better after the landlady gives oral evidence, reiterated Sri.Pradeep. 5. We have anxiously considered the rival submissions addressed at the Bar. We feel that no prejudice will be caused to the respondent/tenant by affording an opportunity to the revision petitioner/ landlady to get herself examined orally. It will be open to the respondent to confront the landlady with Ext.A1, Ext.A2 and Ext.A6 and any other material and R. C. R. No.167 of 2009 -6- cross examine her on the basis of the various contentions raised in the statement of objections including the contention that Ext.A1 is not a genuine power of attorney and the contention that the need projected by the landlady is not a bona fide one. The power of attorney, if any, executed by the landlady in favour of her father Sivaraman Nair has obviously become inoperative due to demise of Sivaraman Nair. Ext.A1 is a registered power of attorney and it is to be seen whether the said power of attorney will be owned up by the landlady during cross examination. 6. The result of the above discussion is that the order of the Rent Control Court and the judgment of the Appellate Authority, to the extent they find that the Rent Control Petition is not maintainable, are set R. C. R. No.167 of 2009 -7- aside. The RCP is remanded to the Rent Control Court. The Rent Control Court is directed to favourably consider the application for issuance of a commission, if any, filed by the landlady within two weeks of the parties appearing before the Rent Control court pursuant to this order of remand. The Rent Control Court will appoint an Advocate of that court as Commissioner for recording the evidence of the landlady. Once the landlady is examined, one opportunity should be afforded to the tenant also for adducing the counter evidence, if any. Once the entire evidence is over, the learned Rent control Court will hear both sides and take a fresh decision in the RCP on its merits in accordance with law. Needful in compliance with the above directions will be done by R. C. R. No.167 of 2009 -8- the learned Rent Control Court, at the earliest, and at any rate, within three months of parties entering appearance pursuant to this order of remand. Parties are directed to enter appearance before the Rent Control Court on 30th September, 2009. 7. The RCR is thus, allowed by way of remand. No costs. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/-