1. This Civil Revision Petition arises out of a proceeding for eviction under S. 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965, the Act for short. The landlord the applicant for eviction is the revision petitioner. Two grounds were taken for eviction, one the tenant had kept the rent in arrears and two, he had sub-let the premises to another who was carrying on tobacco business in the premises for which he had obtained a licence from the Central Excise Authority, marked as Ext. A2 in the case I might first note that the question of arrears of rent does not now arise. The Rent Controller had come to the conclusion that there was no arrears of rent and the tenant subsequently also was paying the rent so that neither before the Appellate Authority nor before the Revisional Authority under the Act, that question did not come into the fore. In the objection the tenant had filed (he had filed the same along with the sub-lessee who was the second counter petitioner before the Rent Controller's Court) it had been stated that he was conducting the business in the remises from 1-3-1963 in the name of Hameed and Company, on the request of the petitioner, the rent was enhanced and a lease deed was executed on 12-8-1970, that a licence had been obtained for Hameed and Company in the alleged sub-lessee's name but, he, the tenant himself was conducting the business under the licence obtained for Hameed and Company and also under the licence obtained in his name. The objection as originally filed proceeded on the basis that though there was a licence in the alleged sub-lessee's name he was only a name lender. The tenant himself was doing the business in the premises Subsequently, the objection was amended, producing a partnership deed marked as Ext. B3 in the case where a plea was taken that the tenant was carrying on a partnership business in tobacco with alleged sub-tenant and the creation of a partnership with a third person would not constitute a sub tenancy. It may be noted here that in the reply notice Ext. A5 issued by the tenant through his lawyer to the landlord who had sent Ext. B1 notice, his case was that he himself was doing the business in the premises under two licences, a licence in the alleged sub-tenant's name for Hameed and Co. and another licence in his own name.
2. In the nature of the questions raised in the C.R.P, I may note here two other contentions that the tenant had raised before the Rent Controller and then before the appellate and revisional authorities. One such contention was that Ext. B1 notice is not in sufficient compliance with S. 11(4)(i) of the Act Ext. B1 notice was issued on 22-1-1976 and is acknowledged by the tenant on 23-1-1976. As under the statutory provision, proceedings for eviction could be initiated only on the expiry of 30 days of the receipt of notice or the refusal thereof. However, the petition was filed on 13-2-1976, undoubtedly well within thirty days. Therefore, a contention is raised that the Rent Control Court had no jurisdiction to entertain the petition.
3. The other contention is also in regard to the notice. Ext. B1, though issued by an Advocate on behalf of the landlord is not signed by the Advocate. Hence, the tenant contends that there is no notice at all as required by law in the matter.
4. The Rent Control Court came to the conclusion that Ext. B3 does not evidence a genuine transaction and it was created for the purpose of the case. The court also held against the contentions regarding notice. It was held that the thirty days provided in the statutory provision is for the purpose of giving the tenant a period within which he could rectify the breach of contract he made in sub-letting or transferring possession of the let out premises. Therefore, in the circumstances of the case, it could not be contended that the Rent Control Court had no jurisdiction to entertain the case.
5. However, in appeal the Appellate Authority accepted the tenant's case that Ext. B3 is a genuine partnership deed and there is no sub-letting if the tenant was carrying on business in partnership with a third person. The Sub Court also held that the Rent Control Petition having been filed within 30 days of the receipt of notice by the tenant, is defective in this respect also. Regarding the question of the invalidity of the notice because it was not signed, no opinion as such was expressed.
6. The Revisional Authority under the Act, the District Court agreed with the Rent Controller, that Ext. B2 was a subsequent creation. However, the learned District Judge held that there was no sufficient evidence to show that the tenant had sub-let the building. That court also found against the maintainability of the petition on account of the initiation of the proceedings before the expiry of the statutory period of 50 days from the date of receipt of notice by the tenant. The court also expressed the opinion that Ext. B1 notice cannot be taken as a proper notice because it is not signed either by the landlord or his Advocate.
7. This decision is attacked by the landlord in this revision to this Court under S. 115 C.P.C Mr. Narayanan Poti, learned counsel for the petitioner, would urge that the only ground given by the Appellate Authority for negativing the claim for eviction, namely, the formation of the partnership under Ext. B3, having been reversed by the District Judge, there is no justification for denying eviction on the ground that the petitioner had not proved sub-letting. The tenant has no case that he is carrying on his exclusive business in the premises as he originally contended. The licence issued to the sub-tenant for his business in the identical premises was sufficient proof of sub-letting. It is pointed out that in the circumstances of the case, the partnership set up by the tenant is only an afterthought and false. In regard to the notice, the learned counsel for the petitioner brings to the notice of the court, the acceptance of the notice by the tenant and issuing of a detailed reply denying the allegation of the sub-tenancy. Therefore, it was improper to have invalidated the notice on the ground that it was not signed by the lawyer. The tenant is estopped from raising such a contention by his conduct in treating it as the landlord's notice as such and denying only the allegations therein. Mr. Narayanan Poti also questions the decision regarding the alleged lack of jurisdiction of the court to entertain, the matter because of the premature filing of the petition in the Rent Control Court before the expiry of 30 days time after notice was served on the tenant. The landlord's statutory duty is only to inform and require the tenant to terminate the sub-lease which if not complied with the tenant will entail his eviction. The filing of the petition before the statutory period cannot in any way affect the jurisdiction of the Court: Nor is such a contention open to the tenant in the case as the present one where his very reply to the notice was that he had not sub-let the premises
8. I would first consider the question as to whether any reliance can be placed on Ext. B3. I might state on a consideration of the evidence and the relevant circumstances that the Rent Controller was right in placing no reliance on the same. In the reply notice and in the first objection filed by the tenant, no such deed is mentioned. On the other hand, what is put forward there is the business in the premises is being carried on by the tenant himself though the licence is issued in the name of the alleged sub-lessee and also in his name. It is only long after the objection is sought to be amended by bringing in the case of partnership and the deed Ext. B3. There cannot be any doubt that the tenant's earlier case of carrying on the business himself is contradictory to the present case of partnership. The subsequent registration of the partnership will also not help the tenant in the matter.
9. Having come to the correct conclusion on Ext. B3, the partnership deed, I am not able to follow the logic of the learned District Judge in finding that there is no sufficient evidence to show that the tenant had sub-let the premises or portion thereof to another person. It may be noted that mere transfer of physical possession may not be sufficient to constitute sub-letting. Every transfer of possession need not be a transfer of lease or sub-letting. It is also true that when two constructions of any provision of the Act are possible in the nature of the object of the enactment which is to prevent unreasonable eviction of the tenants that construction which is in furtherance of such object should be preferred. These aspects of the Rent Control Legislation in the State have been discussed at length by V.R Krishna Iyer, J., in this Court's decision in Ulliveettil Abu v. Beebi (ILR. 1469 (2) Kerala 575). In Gundalapalli Rangamannar v. Desu Rangiah (AIR. 1954 Madras 182), the Madras High Court said that there cannot be sub-letting unless the lessee parted with legal possession. The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. To create a sub-lease a right to exclusive possession and enjoyment of property should be conferred on another.
10. The learned District Judge is certainly correct in stating that the landlord has to initially prove that the tenant has transferred his legal possession which he obtained under Ext. A1 lease deed to another. When there is not any likelihood of evidence in the form of documents to indicate transfer of possession in the face of the Rent Control Legislation, one will have to consider the broad circumstances of the case and facts revealed in evidence to find out whether there has been any transfer of such possession. Being a civil dispute the courts will have to resolve the controversies arising, on the preponderance of probabilities. It is rather strange that when the circumstances which lead the District Judge to find against the written partnership agreement necessarily point out to the non-existence of the partnership, that have been ignored by the learned Judge. Neither in Ext. A5 nor in the first objection filed by the tenant, he has a case of partnership just as he has no case there of the existence of the partnership agreement. The definite case there was that the tenant himself was doing business in the premises in the licence obtained in the name of the person who in now alleged to be a partner. The only inference possible from the reply notice and the first objection is that the tenant alone was doing the business and in possession of the shop room why this volteface subsequently setting up a case of partnership? Is not the partnership set up by the tenant an afterthought as is patent from the above facts? The existence of the partnership could easily have been proved by the production of the account books of the firm if such firm is actually in existence. Ext. B3 the deed provides that proper and regular accounts of the partnership shall be maintained and each party shall have the right at all times without interruption or hindrance by any other, to inspect, scrutinise and copy the same. Nonproduction of such accounts which would have established the tenant's case is really fatal to such case. I have no hesitation in stating that the revisional court under the Act had ignored material factors in favour of the petitioner landlord and has rendered a decision which therefore is vitiated by material irregularity in the exercise of jurisdiction attracting the revisional powers of this Court. According to me these factors are clear indications of a sub-lease being created.
11. According to the learned District Judge, in regard to the maintainability of the petition for eviction there are two vital defects concerning the notice issued by the landlord which should entail the dismissal of the petition. The proviso to S. 11(4)(i) of the Act which insists on the notice to the tenant in cases like these is as follows:—
“Provided that an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of the lease and the tenant has failed to terminate the transfer or the sub lease, as the case may be, within thirty days of the receipt of the notice or the refusal thereof.”
12. Contravention of the condition of the lease there referred to is transferring the tenant's right under the lease or sub-letting the entire building or portion thereof if the case does not confer on the tenant a right to do. (S. 11(4)(i)) One defect pointed out is that the notice issued through the Advocate by the landlord Ext. B1 is signed neither by the Advocate nor by the landlord. On the evidence in the case it cannot be controverted that the notice in fact was sent by the Advocate under instructions from the landlord. It is also true that the Advocate has omitted to sign it. What is the legal consequence?
13. The two decisions relied on by the court below to invalidate the notice because of such defect is Hira Lal v. Deputy Commissioner. Rai Bareli (AIR 1951 All 483) and Banamali v. Padmalabha (AIR 1951 Orissa 262). In both the cases it was held that as the notice sent in these cases under S. 106 of the T.P Act did not contain the signature of the landlord or his agent, it was not sufficient compliance of that provision. Therefore, there was no valid notice to quit. It may first be noted that under S. 106 T.P Act, every notice must be in writing signed by or on behalf of the person giving it. There is no such insistence on the provision to S. 11(4)(i) of the Act. And the tenant in replying to Ext. B1 by Ext. A5 had no case of any defect in the notice. Also in his first objection he does not have such a case. No doubt, he has taken a general ground of non-compliance with S. 11(4)(i) in the second objection.
14. The essential principle behind a statutory provision should not be lost sight of in the labyrinth of technicalities. It is certainly necessary and proper that mandatory direction should be adhered to. Unless a document which under law requires execution and signature with solemnity the form and nature of signature and the place where the signature appears may not be of much consequence. No doubt, the signature must be affixed with the intention of authenticating the whole document. Chitty in his Law of Contracts Vol. I (14th Edition-at paragraph 244, page 246) states that where the name of the vendor was printed in the beading of an invoice sent by him to the buyer, and which contained the particulars, quantities and prices of the goods sold, the printed name was held to be a sufficient signature to bind the vendor. The statement is based on a number of reported decisions referred to in foot note (8) in that page.
15. It is useful in this context to quote the following passage from the authoritative work on. “The Law of Rear Property” by Megarry and Wade 4th Edn. pages 558 and 559.
“The word “signed” has been given an extended meaning by the courts. Provided the name of the party to be charged appears in some part of the document in some form, whether in writing, typewriting, print or otherwise, there will be a sufficient signature if that party has shown in some way that he recognises the document as an expression of the contract. The difference is between inserting the name in the document merely to make it intelligible, and inserting it in such a way as to “have the effect of authenticating the instrument”, or “to govern what follows.”
Thus memoranda in the handwriting of A, the defendant, which began “I, A agree” or “A agrees” or “Mr. A presents his compliments” or “sold A” without any signature, have all been held sufficiently signed on the ground that A has shown by his writing that he recognises the existence of the contract mentioned in the document. But the form of the document may imply that the name is not to be regarded as a signature: thus if A writes out a document beginning “Articles of agreement made between A and B” and ending “As witness our hands” without any signatures, the Statute is not satisfied. Yet even this implication may be rebutted by oral evidence.
It may be said generally that if the defendant has prepared the document, and it contains his name in full or is headed by his name, the name is likely to suffice as a signature.”
16. Black's Law Dictionary defines ‘sign’ as:
“To affix one's name to a writing or instrument, for the purpose of authenticating it, or to give it effect as one's act.”
17. In the present case, it is not questioned that Ext. B1 is notice issued on behalf of the landlord by his Advocate. The fact that it was not signed by the Advocate obviously due to an inadvertent omission will not make the notice in any way invalid.
18. The other defect which the District Court refers to is that the petition has been filed for eviction before the date of expiry of 30 days from the date of receipt of notice by the tenant. Ext. B1 notice was sent on 22-1-1976 It was received by the tenant on 23-1-1976. The petition was filed before the Rent Controller on 13-2-1976. According to the learned District Judge, this has resulted in the violation of the mandatory provision in the statute which has given 30 days time to the tenant to terminate the transfer of his right or sub-lease as the case may be and get himself exonerated from the consequences of his action, in the objection that the tenant has filed on 15-6-1976 there is no complaint that he was not given time as required by the statute to terminate the sub-lease. In Ramankutty v. Krishna Iyer (1976 KLT. 331) it was said:—
“The proviso, broadly speaking, consists of two parts. The first part provides that before an application is laid under S. 11(4)(i) of the Act the landlord must have sent a registered notice to the tenant intimating the contravention of the said condition of the lease. The first part thus explains the statutory duty on the part of the landlord. The second part provides that the tenant must terminate the transfer or the sub-lease, as the case may be, within 30 days of the notice or the refusal thereof. That part thus deals with the statutory obligation of the tenant. The 30 days referred to in the proviso has thus no application to that part of the proviso which prescribes the statutory obligation on the part of the landlord. The period mentioned in the proviso is intended to confer on the tenant a statutory period within which he could rectify the breach of contract committed by him in that respect. From the wording of S. 106 of the T.P Act it is clear that the time limit is associated with the notice, whereas in the proviso extracted above there is no connecting link between the notice and the time limit prescribed in the second part. I am not prepared to read into the proviso any intention on the part of the legislature to direct the landlord to give 30 days' notice to the tenant. The fact that Ext. A3 referred to 15 days cannot affect the validity of the notice because no time limit is prescribed by the first part of the proviso. It cannot be forgotten that the two conditions made mention of in the proviso are cumulative. But that aspect has little bearing regarding the question whether the landlord's notice should fix a time limit. It follows therefore, that the proviso has been complied with in the instant case, and the eviction proceedings do not suffer from any infrimity on that account.”
19. No doubt in that case, the proceedings for eviction had been initiated more than 30 days after the date of receipt of notice by the tenant. But the principle underlying the proviso is made clear there.
20. It is certainly true in the nature of the provisions, in certain cases a statutory bar against institution of proceedings is considered absolute and a power of dismissal for its contravention is implicit. See the decision of this Court in Hameed v. Ittoop (1970 KLT. 501) and the decisions relied on there. But it may be noted that such a conclusion could be drawn not merely from the wordings in the statute but taking due note of the legislative policy and object of the section. For example, we may notice here S. 80 CPC. In spite of the mandatory nature in which that section is worded it had been held that the notice required under S. 80 is for the protection of the authority concerned and if in a particular case he does not require that protection and says so, he can lawfully waive his right to the notice. See Vellayan v. Madras Province (AIR. 1947 P.C 197), Dhian Singh v. Union of India (AIR. 1958 S.C 274) and Reghunath Das v. Union of India (AIR. 1969 S.C 674). It may also be noted that filing of a petition before the expiry of the period of 30 days after receipt of notice by the tenant is not a jurisdictional defect which would render a decision on such petition void. The principle to be considered here is stated in Spencer Bower's Estoppel by Representation (Pages 142 to 145).
“Where a statute requires something to be done by one of the parties to an instrument or transaction as a condition of its validity, which, therefore, is not made by the statute absolutely illegal and void in itself, but only contingently so, it may be contended with considerable force that there is no reason why the party entitled to insist on a fulfilment of the statutory condition should not be allowed to waive his right, either by express agreement or consent, or by acts or conduct having the effect of precluding him from asserting the illegality of the instrument or transaction-an effect which can be nothing less than a form of estopppel. The soundness of this contention in any particular case, whether of express contract or of estoppel (for the principle which govern the former obviously govern the latter also), depends upon the question whether the right which is abnegated is the right of the party alone, or of the public also, in the sense that the general welfare of the community, or the interests of the class of persons whom it is the object of the law to protect, cannot be secured in the manner intended without prohibiting the waiver or estoppel. In the case of express contract to waive it has always been held that the doctrine embodied in the familiar formula, quilibet potest renuntiare juri pro se introducto, is subject to the limitation that the renouncing party must be able to establish that the “jus” was intended by the legislature for his benefit only-pro se solo. If the public, or a class or section of the community, are interested, as well as himself, in the general observance of the conditions prescribed by the statute, it has always been held on the ground of public policy that there can be no waiver, even by express contract or consent, of the right to such observance by any individual party; but where, on the other hand, no public interest, and no interest intended to be promoted or protected by the statute, is in the least affected by the contract or consent to waive, and the matter is one which concerns the parties alone, such contract or consent has never been interfered with, but on the contrary has always been-enforced. So also, in cases of waiver by conduct which gives rise to an estoppel, the same essential distinction has always been observed. On the one side of the line are the cases where the estoppel or waiver, if allowed, would defeat the objects of the statute, and injure the interests of the public, or of persons other than the immediate parties, and where therefore the affirmative answer of illegality has prevailed, and the estoppel has been defeated. On the other side of the line are the cases in which no interests, other than those of the immediate parties, can possibly be affected by allowing the estoppel, which accordingly has in such cases usually prevailed.
Estoppel as to Jurisdiction.
Not even the plainest and most express contract or content of a party to litigation can confer jurisdiction on any person not already vested with it by the law of the land, or add to the jurisdiction lawfully exercised by any judicial tribunal; it is equally plain that the same results cannot be achieved by conduct or acquiescence by the parties. Any such attempt to create or enlarge jurisdiction is in fact the appointment of a judicial officer by a subject, and as such constitutes a manifest usurpation of the Royal prerogative. On the other hand where nothing more is involved than a mere irregularity of procedure or (e.g) non-compliance with statutory conditions precedent to the validity of a step in the litgiation, of such a character that if one of the parties be allowed to waive the defect, or to be estopped by conduct from setting it up, no new jurisdiction is thereby impliedly created and no existing jurisdiction impliedly extended beyond its existing boundaries, the estoppel will be maintained, and the affirmative answer of illegality will fail.
Accordingly, in all cases of the first class, that is, where it is sought by estoppel to enlarge the jurisdiction of any tribunal of limited jurisdiction, or to confer jurisdiction on any tribunal or person to whom it is not given by law, it has been held that it is impossible by contract to achieve these ends contrary to the provisions of a statute; and similarly no estoppel can be invoked to produce a similar result. In the second class, in which the representation is set up merely as a remedy for an irregularity in procedure, it has been held that this end may be achieved by estoppel or waiver.
In some branches of the law the terms of the relevant statute preclude the parties from contracting out of the jurisdiction of the prescribed tribunal; and, in such cases, just as no agreement between the parties can oust the jurisdiction of the tribunal, neither can it be ousted by the invocation of an estoppel.”
21. One may also take note of the following passage in Ittayira Mathai v. Varkey Varkey ((1964) 1 S.C.R 495) at pages 502 and 503:—
“Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. Rut it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmed v. Onkar Partap Narain Singh (AIR. (1935) P.C 85) and contended that since the court is bound under the provisions of S. 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says that S. 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The Privy Council has not said that where the court fails to perform its duty, it acts with but jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.”
Viewed in the light of the principles there cannot be any doubt that notice contemplated under proviso to S. 11(4)(i) is for the benefit of the tenant. If the tenant does not object to institution of the proceedings on the defective notice in the first stage itself on the ground that he had not been given time to rectify his mistake, he cannot afterwards takesuch objection long after the period of 30 days within which he could have terminated the sub-lease. In the light of the reply notice he sent and the failure on his part to object to the initiation of the proceedings in the objection as he originally filed, it is idle for him to contend that he had not been given 30 days time to terminate the sub-lease and on that ground the proceedings are invalid. Even now what he contends is that there is no sub-lease.
22. In the light of the above discussion, the landlord is entitled to succeed in the case. I set aside the order of the District Court and that of the Appellate Authority and restore that of the Rent Controller. In the circumstances of the case, there will be no order as to costs.
23. Allowed.