Dismissed

M.Nagarajan v. Kumudhavalli

Madras HC11 Nov 2013CRP/4111/2013

Case brief

AI extract

What is this about?

The High Court dismissed a civil revision petition challenging an order allowing a power of attorney agent to conduct rent control proceedings. The court held the lack of prior recognition of the POA defect was curable and not prejudicial to the tenant, citing precedent as a curable post-institution defect.

What did the court decide?

The civil revision petition is dismissed; the connected miscellaneous petition is also dismissed.

M.Nagarajan Vs Kumudhavalli — Landlord and Tenant | Madras HC (2013)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

DATED : 11-11-2013

¶4

CORAM :

¶5

THE HONOURABLE MR.JUSTICE S.TAMILVANAN

¶6

C.R.P (PD).No.4111 of 2013 and M.P.No.1 of 2013

¶7

M.Nagarajan

¶8

............ Petitioner

¶9

¶10

Kumudhavalli

¶11

.......... Respondent

¶12

Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decretal order, dated 17.11.2012 made in I.A.No.113 of 2012 in R.C.O.P.No.213 of 2011 on the file of the Principal District Munsif Court, Coimbatore.

¶13

For Petitioner : Mr.N.Manokaran For Respondent : Mr.M.Sanjaiyen

¶14

ORDER

¶15

This Civil Revision has been preferred under Article 227 of the Constitution of India, challenging the order, dated 17.11.2012 made in I.A.No.113 of 2012 in R.C.O.P.No.213 of 2011 on the file of the Principal District Munsif Court, Coimbatore.

¶16

It is an admitted fact that the petitioner is a tenant and the respondent, Kumudavalli is the landlady. The Rent Control Original Petition in R.C.O.P.No.213 of 2011 was filed by her under Section 10 (2)

¶17

¶18

(i) and 14 (1) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, seeking eviction of the petitioner / tenant. In the said RCOP, Interlocutory Application in I.A.No.113 of 2012 was filed under Order III Rule 1 of the Code of Civil Procedure, seeking an order to recognise the father of the landlady, A.Arunachalam as power of attorney of the landlady and conduct the said RCOP proceeding.

¶19

As per the impugned order, the Court below permitted the landlady, the respondent herein to proceed with the RCOP, as petitioner through her said power of attorney. Aggrieved by the said order, the revision has been preferred by the petitioner / tenant.

¶20

Mr.N.Manokaran, learned counsel appearing for the petitioner / tenant submitted that though RCOP was filed in the year 2011, the respondent herein filed the aforesaid Interlocutory Application only in the year 2012 to recognize her power of attorney agent under Order III Rule 1 of the Code of Civil Procedure. Learned counsel for the petitioner further submitted that even at the time of filing the RCOP, the respondent could have obtained permission / leave of the Court but without getting any such order, the respondent / landlady is not entitled to seek an order, recognising the power of attorney deed and according to him, which amounts to ratifying the act of the landlady, which is not permissible in law. In support of his contention, the learned counsel for the petitioner

¶21

¶22

relied on the decision, The Lakshmi Mills Co., Ltd., v. R.Ramajaam , reported in 2010 (1) MWN (Civil) , wherein this Court

¶23

( K.K.Sasidharan, J ) has held as follows :

¶24

"15. The fourth respondent has file the Suit in his capacity as agent of respondents 1 to 3. Obviously, he was claiming to be an attorney within the meaning of Rule 2 (a) of Order 3. A conjoint reading of the provisions of Order 3, Rules 1 and 2 along with Rule 16 of the Civil Rules of Practice clearly shows that the power of attorney has to be produced before the Trial Court and a specific order has to be passed by the Judge permitting the power agent to appear on behalf of the party. There is no question of permitting the party to represent the interest of another in a Civil Suit unless such authorization was produced before the Court. In case a person was permitted to represent the plaintiffs in a Suit without there being a document within the meaning of Order 3, Rule 2 (a) it would ultimately result in a serious situation to the plaintiffs inasmuch as any decree passed in such Suit would be binding on the plaintiffs on account of the permission granted by the Court to the agent to file the Suit and to conduct the proceedings."

¶25

¶26

Per contra, Mr.M.Sanjaiyen, learned counsel appearing for the respondent / landlady submitted that even in the RCOP field by the respondent, the landlady has specifically stated in paragraph number 1 itself that her father A.Arunachalam was appointed by her as power of attorney to conduct the case. Further, the learned counsel for the respondent referred to Document No.1 available in the list of documents, wherein copy of the power of attorney deed, dated 25.02.2008 is available, whereby the respondent / landlady has appointed her father, A.Arunachalam as her power of attorney, to conduct the case. According to the learned counsel for the respondent, after the counter being filed by the petitioner herein as tenant, the Interlocutory Application was filed by the respondent / landlady to recognise her power of attorney, that was ordered subsequently. According to the learned counsel for the respondent, it was only a curable defect and that would not affect the rights of the petitioner / tenant and therefore, considering the facts and circumstances, the Court below has allowed the Interlocutory Application filed by the respondent / landlady. In support of his contention, the learned counsel relied on the decision in Vairavan, M v. R.V.Periannan Chettiar , reported in 2006 (3) CTC 486 , wherein this Court ( S.R.Singharavelan, J ) has held that Application filed under Order III Rule 1 and 2 of the Code of Civil Procedure at the stage of trial or arguments, to permit one of the plaintiffs to act as power agent of other plaintiffs could be allowed. In the said case, no permission was sought for

¶27

¶28

at the time of institution of the suit, however, this Court held that it was a curable defect and hence an application could be filed at any stages of suit and there was nothing improper for trial Court to allow the same, when there was no prejudice caused to the defendant.

¶29

In the aforesaid decision, this Court has also relied on the decision of the Hon’ble Apex Court in Uday Shankar Triyar v. Ram Kalewar Prasad Singh and another , reported in 2006 (1) SCC 75 , wherein the Hon’ble Apex Court has held as follows :

¶30

"Here again it has always been recognized that if a plaint is not signed by the plaintiff or his duly authorised agent due to any bonafide error, the defect can be permitted to be rectified either by the Trial Court at any time before judgment,or even by the Appellate Court by permitting appropriate amendment, when such defect comes to its notice during hearing."

¶31

It is seen that Order III Rule 1 of the Code of Civil Procedure reads as follows :

¶32

" Appearance, etc., may be in person, by recognized agent or by pleader :Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court may, except where otherwise expressly provided by any law for the

¶33

¶34

time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader (appearing, applying or acting, as the case may be) on his behalf :

¶35

Provided that any such appearance shall, if the Court so directs, be made by the party in person."

¶36

It cannot be disputed that any party could contest the case through power of attorney and for which, seek permission to recognise the power of attorney, by producing the power of attorney deed. In the light of the decision rendered by the Hon’ble Apex Court in Uday Shankar Triyar v. Ram Kalewar Prasad Singh and another , reported

¶37

in 2006 (1) SCC 75 and in Vairavan, M v. R.V.Periannan Chettiar , reported in 2006 (3) CTC 486 , this Court, it is held as a curable defect. Hence, the impugned order could not be prejudicial to the other party and the error could be rectified, since it has to be construed only as curable defect.

¶38

In the instant case, admittedly, the petitioner is a tenant and the respondent, Kumudavalli is a landlady. Even in the RCOP, it has been averred that the landlady has appointed her father, Arunachalam, as her power of attorney to conduct RCOP on behalf of the respondent / landlady. It is seen that allowing the petition would not change the cause

¶39

¶40

of action or legally affect the petitioner, therefore, the impugned order is not prejudicial to the rights of the petitioner / tenant. Hence, it has to be construed by the Court that it is a curable defect and the decision rendered in Vairavan, M v. R.V.Periannan Chettiar , reported in 2006 (3) CTC 486 is squarely applicable to the facts and circumstances of this case.

¶41

Having gone through the facts and circumstances, in the light of decisions referred to by both the learned counsel, I am of the view that there is no error or infirmity in the impugned order, so as to warrant any interference by this Court under Article 227 of the Constitution and accordingly, the same is liable to be dismissed.

¶42

In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.

¶43

11-11-2013

¶44

Index : Yes Internet : Yes

¶45

tsvn

¶46

¶47

The Principal District Munsif Court Coimbatore.

¶48