This civil revision petition is directed against the judgment dated 20.8.2008 in RCA No.675 of 2007 on the file of VII Court of Small Causes, Chennai confirming the order dated 4.7.2007 in M.P.No.170 of 2007 in RCOP No.1004 of 2006 on the file of XIV Court of Small Causes, Chennai.
2. The petitioner is a tenant in respect of a non-residential building situated at Door No.13 First Cross Street, United India Colony, Kodambakkam, Chennai-24. The said property was in the ownership of one T.S.M.Haja Mohideen and it was taken assignment by the landlord Mrs.Sunitha as per sale deed dated 12.12.2005. The petitioner was informed of the change of ownership and he attorned the said tenancy and he has been paying rent to the landlady.
INITIATION OF PROCEEDINGS:
3. While the matter stood thus, the respondent/landlady through her power agent filed a petition under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 before the XIV Small Causes Court, Chennai directing the petitioner to pay fair and reasonable rent at the rate of Rs.8,565/- per month. The petition was filed on the basis of a power of attorney executed by the landlady in favour of Mrs.P.Suguna.
DEFENCE:-
4. The Rent Control Original Proceedings was contested by the revision petitioner by filing counter statement. According to the petitioner there was no justification in enhancing the rent to Rs.8565/- per month and he has been paying the market rent at Rs.1,100/- per month. In short, it was the contention of the petitioner that the respondent was not entitled for fixing the reasonable rent at the rate claimed by her.
5. Before the commencement of trial, the respondent marked the power of attorney as Ex.P.3. When the matter was posted for trial, the petitioner filed an application in M.P.No.170 of 2007 to reject the Rent Control Original Petition on the ground that the power agent was not entitled to institute the proceedings.
CONTENTS OF PETITION:-
6. In the affidavit filed in support of the application in M.P.No.170 of 2007, it was contended that the power of attorney produced and marked as Ex.P.3 does not contain the power to initiate Rent Control proceedings and it was only a power given for availing loan from financial institutions and to operate the bank accounts. There was no express authority given to the power agent for initiating Eviction proceedings and as such the application filed at the instance of the power agent was not maintainable.
COUNTER:-
7. The application was resisted by the respondent. In the counter filed by the power agent, it was contended that as per the general power of attorney issued in her favour, she was entitled to maintain the proceedings before the Rent Control Court. By way of an alternative submission, it was the contention of the respondent that the petitioner having participated in the proceedings, it was not open to him to turn round and allege that she was not competent to initiate proceedings.
DECISION:-
8. The learned trial Judge on a consideration of the general Power of Attorney ,was of the opinion that it was open to the respondent to conduct Rent Control Proceedings on the strength of the General Power of Attorney and it was always possible for the landlady to ratify the action taken by her agent and dismissed the application. Aggrieved by the said order, the petitioner preferred an appeal before the VII Court of Small Causes, Chennai. However the said appeal was also dismissed confirming the order passed by the trial Court. Aggrieved by the judgment of the Appellate Court, the unsuccessful tenant is before this Court.
ARGUMENTS:-
9. The learned counsel for the revision petitioner contended that though the power of attorney was described as a General power of attorney there was no authorisation given to the power agent to initiate proceedings for eviction. It was a power of attorney authorising the power agent to open bank accounts and to receive money on her behalf and for purchase of immovable property. When there was no express authority for the power agent to initiate proceedings for eviction, the very proceedings initiated by the power agent was not maintainable. The learned counsel also relied on the judgment of this Court reported in 1992 TLNJ 51 (B. PREMCHAND BANTHIA v. YASHBALA R.PROHIT REP. BY POWER OF ATTORNEY M. SUBRAMANIA RAO) in support of his contention that there should be express authorisation for initiating Rent Control Proceedings.
ANALYSIS:-
10. The power agent has initiated proceedings on the basis of a power of attorney executed by the landlady on 20.5.2005. The said power of attorney is a general power of attorney and the power agent was authorised to receive money due to the principal and to give valid acknowledgement for the same. The revision petitioner has been sending rent in favour of the landlady and it was received only by the power agent on the strength of the power of attorney.
11. The proceedings initiated by the power agent is governed by the provisions of the Tamil Nadu Buildings (Lease and Rent) Control Act, 1960. Section 2(6) defines "landlord" , which reads thus:-
"Landlord" includes the person who is receiving or is entitled to receive the rent of a building,whether on his own account or on behalf of another or on behalf of himself and others or as agent, trustee,executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent if the building were let to a tenant."
12. The expression "landlord" as contained in Section 2(6) of the Tamil Nadu Buildings (Lease and Rent Control) Act is an inclusive definition and as such any person receiving or is entitled to receive rent of the building whether on his own or on behalf of another is deemed to be a "landlord". The power agent was authorised by the landlady to receive the rent on her behalf and admittedly the power agent has been receiving the rent on behalf of the landlady. The proceedings initiated by the respondent is not for the purpose of eviction. Written consent of the landlord is necessary only for filing an application for eviction.
13. Section 10 of the Act provides for eviction of tenants. As per Section 10(8) no person who is receiving or is entitled to receive the rent of a building merely as an agent of the landlord shall, except with the previous written consent of the landlord, be entitled to apply for the eviction of the tenant. Therefore the question of getting previous consent of the landlord arises only in case the proceeding was one for eviction. The proceedings now initiated by the power agent on behalf of the landlady is only a proceeding for fixation of rent as provided under Section 4 of the Act. When there was no statutory prohibition for filing an application for fixation of rent by the agent, who is entitled to receive the rent, it cannot be said that the application at the instance of the power agent was not maintainable.
14. The Rent Control Original Petition was filed as early as on 9.6.2006. The revision petitioner has filed his counter on 31.8.2006. The revision petitioner has not challenged the maintainability of the original proceedings in his counter and at the earlier point of time there was no averment to the effect that the power agent was not entitled to receive rent or she was not entitled to maintain the application for fixation of rent. It was only after marking the power of attorney and completing evidence on the side of the respondent, the petitioner has come up with an application in January, 2007 to reject the petition. The petitioner having participated in the proceedings knowing very well that the proceeding was initiated by the power agent, was estopped from contending at the fag end of the trial that the Rent Control Original proceeding was not maintainable. The course of action taken by the petitioner was only a delaying tactics intended to drag on the proceedings.
15. In B. PREMCHAND BANTHIA v. YASHBALA R.PROHIT REP. BY POWER OF ATTORNEY M. SUBRAMANIA RAO (1992 TLNJ 51) the issue before this court was regarding maintainability of an eviction petition preferred by the power agent. The power of attorney which was the subject matter of the said case, authorised the power agent to initiate proceedings for eviction of the tenants and in such circumstances the learned Judge held that the power agent was a landlord for the purpose of the Act and the signing and verifying of the application for eviction by the agent, has to be regarded as having done by the landlady herself. While deciding the matter, the learned Judge also relied on an earlier judgment of this court in PAHALAJMAL KHATUMAL v. K. GOVINDARAJULU POWER OF ATTORNEY AGENT OF T.V. & BROS & ABHAICHAND VENDAVAN (1961(1) MLJ 150). In the said case the argument was to the effect that the agent of the landlord, who filed an eviction petition was not authorised to file such an application. The contention that the eviction petition was not maintainable as the agent was only collecting rent, was repelled by holding that the eviction petition at the instance of the power agent was maintainable.
CONCLUSION:-
16. The revision petitioner was well aware of the execution of the power of attorney and the rent was received only by the power agent at all point of time. It was only on account of the said fact that the petitioner did not chose to agitate the issue of maintainability in the counter filed by him. The proceedings initiated by the power agent was permitted to be continued and the revision petitioner participated in the proceedings admitting the power agent as the "landlord" within the meaning of Rent Control Act. It was only after completion of evidence on the side of the respondent and after marking the power of attorney, that he has come up with a new case that the power agent was not authorised to file a petition. Admittedly the proceedings is only under Section 4 of the Act and it is not an eviction petition. The power of attorney, being the agent authorised to receive the rent on behalf of the landlady, has tobe considered as the "landlord" for the purpose of Tamil Nadu Buildings Lease and Rent Control Act and as such there was nothing wrong in her presenting the application for fixing the rent at the instance of the landlady. The application filed by the petitioner to reject the petition was clearly an after thought made up for the purpose of dragging the proceedings.
RESULT:-
17. Therefore I do not find any merit in the contention of the revision petitioner. In the result, the civil revision petition is dismissed. Consequently, the connected MP is closed. No costs.
Tr/ To VII Court of Small Causes, Chennai XIV Court of Small Causes, Chennai