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Sigma Agencies Pvt. Ltd. Vs. P.V. Thomas - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 146 of 1980-D
Judge
Reported inAIR1981Ker43
ActsCode of Civil Procedure (CPC) , 1908 - Sections 23 - Order 32; Kerala Buildings (Lease and Rent Control) Act, 1965 - Sections 11
AppellantSigma Agencies Pvt. Ltd.
RespondentP.V. Thomas
Appellant Advocate T.L. Viswanatha Iyer, Adv.
Respondent Advocate P.N. Sankaranarayana Pillai, Adv.
DispositionPetition dismissed
Excerpt:
- - that capacity is made good only if he is represented in the manner provided by law......by a minor represented by his next friend (his mother) and after contest that was allowed by the rent control court the tenant filed an appeal before the appellate authority. that authority set aside the order and all the findings entered by the rent controller and remanded the case on the sole ground that an application filed by a minor represented by a next friend is not a valid application. this was reversed on revision. the revisional court remanded the case to the appellate authority after holding that the application filed by a minor represent-ed by a next friend is maintainable. the appellate authority was directed to take back the appeal on file and dispose of the same in accordance with law but subject to the finding of the revisional court. this is challenged in this revision.....
Judgment:
ORDER

G. Viswanatha Iyer, J.

1. The respondent in a Rent Control proceeding is the revision petitioner. An application for eviction was filed by a minor represented by his next friend (his mother) and after contest that was allowed by the Rent Control Court The tenant filed an appeal before the Appellate Authority. That Authority set aside the order and all the findings entered by the Rent Controller and remanded the case on the sole ground that an application filed by a minor represented by a next friend is not a valid application. This was reversed on revision. The Revisional Court remanded the case to the Appellate Authority after holding that the application filed by a minor represent-ed by a next friend is maintainable. The Appellate Authority was directed to take back the appeal on file and dispose of the same in accordance with law but subject to the finding of the revisional court. This is challenged in this revision petition.

2. The counsel for the petitioner contends that as Order XXXII C. P. C. has not been extended to proceedings under the Rent Control Act the petition in the manner filed is not maintainable. It is true that under Section 23 the Rent Control Authorities are given powers of a civil court only under certain provisions of the C. P. C. That does not mean that a minor represented by a next friend cannot file an application under the provisions of the Rent Control Act. Who can apply and in what manner are matters of procedure and do not relate to the powers of the Tribunal. This again will depend upon his capacity to enter into or terminate any legal relationship with another. Legal relationship will arise out of a contract or a conveyance. A minor has no capacity to enter into a contract or to transfer an immovable property. A proceeding for eviction is a method by which a legal relationship in respect of a property is sought to be terminated. For that a person competent alone can act. A minor can act only through a guardian ad litem or through a next friend. Hence a minor who is entitled to terminate a tenancy can do it only if he has the capacity. Indian Majority Act negatively states that he has no capacity when it provided in a non obstante clause that in certain matters the provisions of the Act will not apply. That capacity is made good only if he is represented in the manner provided by law.

3. The general principle which is embodied in Order XXXII is applicable in all proceedings where a separate provision is not provided for in the concerned Statute under which the proceeding is initiated. I am supported in this conclusion by the decision in (1979) 2 Andh WR 1 : (AIR 1979 NOC 195) and (1967) 2 Andh WR 479.

4. This conclusion of mine is further strengthened if one looks at the steps to be taken in the matter of engaging a counsel and executing orders of eviction in a Rent Control proceeding. Engaging a counsel is a matter of contract, execution bf an order which is deemed to bea decree can be done only under the C. P. C. So the deemed decree should conform to the provisions of the C. P. C. in the matter of parties who can enforce it.

5. For these reasons I hold that there is no substance in the contention put forward by the petitioner's counsel.

6. In the result the Civil Revision Petition fails. It is dismissed with costs.


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