Thayyullathil Hanefa vs Subha.T.K

Kerala High Court

Thayyullathil Hanefa vs Subha.T.K on 21 May, 2024

Author: Amit Rawal

Bench: Amit Rawal

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
             THE HONOURABLE MR. JUSTICE AMIT RAWAL
                                &
         THE HONOURABLE MR. JUSTICE EASWARAN S.
   TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                      RCREV. NO. 73 OF 2020
 AGAINST THE ORDER/JUDGMENT DATED 28.11.2019 IN RCA NO.42
  OF 2017 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY
  ARISING OUT OF THE ORDER/JUDGMENT DATED 6.2.2017 IN RCP
NO.24 OF 2014 OF ADDITIONAL RENT CONTROLLER (RENT CONTROL
                         COURT), KANNUR
REVISION PETITIONER/RESPONDENT & CROSS
APPELLANT/RESPONDENT:

            THAYYULLATHIL HANEEFA
            AGED 58 YEARS
            S/O.KUNHIMOOSA, DOOR NO.SBV 543, INDO TRAVEL
            LINE, VICHITRA COMPLEX, OPPOSITE CIVIL STATION,
            KANNUR-670 002.
            BY ADVS.
            MATHEW KURIAKOSE
            SRI.G.GIREESH


RESPONDENT/APPELLANT & RESPONDENT IN CROSS
APPEAL/PETITIONER:

            SUBHA.T.K., AGED 62 YEARS,
            W/O. SASIDHARAN, RESIDING AT SAHASTRARA, MILL
            ROAD, NEAR DSC CENTRE, KANNUR I AMSOM,
            KANNURKARAR DESOM, KANNUR, PIN-670 001.

            BY ADV SRI.P.U.SHAILAJAN
     THIS    RENT   CONTROL   REVISION   HAVING   COME   UP   FOR
HEARING ON 21.05.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 R.C.REV. NO. 73 OF 2020

                              2

            AMIT RAWAL & EASWARAN S., JJ.
             ------------------------------------
                   R.C.Rev.No.73 of 2020
              -------------------------------------
           Dated this the 21st day of May, 2024

                          ORDER

Easwaran, J.

The revision petitioner/tenant has come up in this revision against the judgment dated 28.11.2019 in R.C.A No.42/2017 and Cross Appeal on the files of the Rent Control Appellate Authority, Thalasseri. The landlord filed Rent Control Petition No.24/2014 seeking fixation of fair rent. The landlord contended that the building in question was taken on lease by the tenant as per agreement dated 1.5.1992 from the father of the petitioner's husband for a monthly rent of Rs.500/-. The tenancy continued under her husband. By the registered Will No.168/2006, Late Sasidharan bequeathed the entire right over the properties to the petitioner, who is his wife. On his death, the rights over the scheduled buildings devolved upon the petitioner. The scheduled premises was having an extent of 150 sq.ft. R.C.REV. NO. 73 OF 2020 3 According to the petitioner/landlord, the buildings with less amenities in the localities are rented out for monthly ranging from Rs.15,000/- to Rs.20,000/-. Though after the execution of the lease agreement, the rent was enhanced from Rs.500/- to Rs.1,500/-, the same is insufficient.

2. The tenant appeared and objected to the application. Though initially the title of the landlord was sought to be denied, during the course of consideration of the rent control petition, the said argument was not pressed and accordingly endorsed in the rent control petition.

3. The question before the Rent Controller was what would be the fair rent which was liable to be fixed in respect of the tenanted premises. In support of her case, the petitioner herself examined as PW1 and marked Exts.A1 to A12. Exts.A4 to A9 are the lease deeds executed in the vicinity of the tenanted premises. The commissioner's reports were marked as Exts.C1 to C2. The tenant did not examine himself in the box.

R.C.REV. NO. 73 OF 2020 4

4. On consideration of the evidence on record, the Rent Controller found, based on Exts.C1 and C2 commission reports, that the tenanted premises is in a commercially important place, such as Caltex Junction, Kannur Town. Moreover, the tenanted premises is situated in an old building of Vichithra Complex, which contains a lot of other shop rooms, and other shop buildings in the nearby new buildings of Vichithra Complex, which is situated in commercially important place. Based on the evidence on record, the Rent Controller fixed the fair rent of the scheduled building at Rs.5,250/- (150 sq.ft. x Rs.35).

5. Aggrieved by the aforesaid order, the landlord filed Rent Control Appeal No.42/2017. The tenant also filed a Cross Appeal challenging fixation of the fair rent at Rs.5,250/- as done by the Rent Controller.

6. By the order impugned in this revision, the Rent Control Appellate Authority allowed the appeal filed by the landlord and increased the fair rent of the building to R.C.REV. NO. 73 OF 2020 5 Rs.7,500/- per month and dismissed the cross appeal filed by the tenant against the order in RCP.

7. We have heard Sri.Mathew Kuriakose, learned counsel appearing for the revision petitioner/tenant and Sri.P.U.Shailajan, learned counsel appearing for the respondent/landlord.

8. The modalities to be followed in fixation of fair rent of a premises by the Rent Controller is now governed by the judgment in Edger Ferus v. Abraham Ittycheria [2004 (1) KLT 767]. The factors which the Rent Controller has to take note are as follows:

(i) inflation and resultant reduction in the purchasing power of money, (ii) variation in the cost of living index in the area since commencement of the lease, (iii) demand for accommodation and availability of the building in the locality, (iv) prevailing rent in the locality for the similar accommodation, (v) type of construction, (vi) general or special amenities provided in the building, (vii) nature of occupation, (viii) annual rental value of the building at the time of filing the application for fair rent, (ix) revision of fresh imposition of municipal taxes etc."

R.C.REV. NO. 73 OF 2020 6

9. When the question of fixation of fair rent by the Rent Controller is taken into consideration applying the aforesaid principle, it is brought out that the Rent Controller has relied on Exts.C1 and C2 reports of the Advocate Commissioner and read along with Exts.A4 to A9. On a contrary, it is evident that the tenant failed miserably to adduce any evidence to dispel the findings in the reports of the Advocate Commissioner.

10. When we analyse the findings of the Rent Controller and the appellate authority, it is evident that the appellate authority has specifically noticed that the Advocate Commissioner in Ext.C2 report noticed that the next shop room situated on the Southern Side of "Murali Auto House" is rented out for Rs.14,520/-. Even on perusal of Exts.A4 to A9, the appellate authority formed an opinion that the rent of the buildings in Vichithra Complex is ranging from Rs.12,000/- to Rs.30,000/-. Therefore, the appellate authority was of the definite view that insofar as R.C.REV. NO. 73 OF 2020 7 the location of the tenanted premises was concerned, it was situated in a commercially important area. Therefore, it must be noted that both the authorities, namely the Rent Controller as well as the Appellate Authority, were of the concurrent opinion on the location of the tenanted premises. Of course, on the question of the nature of the building, the Appellate Authority formed an opinion that since the building was an old building compared to that of the tenanted premises covered by Exts.A5 to A9 documents, the landlord was not entitled for the increase as prayed for and accordingly granted a nominal increase and fixed the fair rent at Rs.7,500/- per month and in the light of the said finding, dismissed the Cross Appeal also.

11. During the course of the arguments, the learned counsel for the petitioner, Sri.Mathew Kuriakose, fairly submitted before us that in a similar circumstances, a Division Bench of this Court in R.C.R No.81/2020 on 9.1.2023 had upheld the findings of the Rent Control Appellate Authority in causing the upward revision of the R.C.REV. NO. 73 OF 2020 8 fair rent and dismissed the revision filed by the tenant therein.

12. The scope of a revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act is well defined. When we are called upon to decide the order of the Rent Control Appellate Authority in fixing the fair rent, we cannot ignore that the Appellate Authority being the last court on facts had appreciated the evidence placed before the Rent Controller and had arrived at a just and equitable finding. If the contention of the tenant is required to be accepted, then necessarily, we will have to re-appreciate the findings of the Rent Controller as well as the Appellate Authority on facts, which is impermissible in exercise of the revisional powers under Section 20 of the Kerala Buildings (Lease and Rent Control) Act.

13. In Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh [(2014) 9 SCC 78], the Apex Court has clearly laid down the principle on the power of the High Court to interfere on the question of facts. Applying the R.C.REV. NO. 73 OF 2020 9 aforesaid principle, we are of the considered view that the only finding of facts, which has been arrived at without consideration of material evidence, or the findings which are based on no evidence or misleading of the evidence as such if allowed to stand would cause serious miscarriage of justice, and then only the High Court would be justified in interfering with the same in exercise of its revisional jurisdiction.

14. On consideration of the materials on record, we are of the considered view that the landlord has been successful in establishing that the tenanted premises is situated in a commercially important area and therefore, she was justified in requesting the Rent Control Court for seeking an upward increase in the fair rent. On successfully proving the necessary requirement, if the landlord finds that the fixation of fair rent was not justified at the hands of the Rent Control Court, definitely, she could ventilate her grievance before the Appellate Authority. Once such a recourse has been taken and the Appellate Authority on R.C.REV. NO. 73 OF 2020 10 evaluation of evidence on record concludes that upward fixation of fair rent by the Rent Control Court is not sufficient and orders increase of the fair rent, this Court in exercise of the revisional jurisdiction will not interfere with the findings unless the same is based on no evidence or is perverse. Such is not the case on hand. Accordingly, the Revision petition is dismissed confirming the orders passed by the Rent Control Appellate Authority in allowing R.C.A No.42/2017 and dismissing the Cross Appeal filed by the tenant. No order as to costs.

Sd/-

AMIT RAWAL JUDGE Sd/-

EASWARAN S. JUDGE jg