Telangana High Court
Deepak Chabria vs Ajay Agarwal on 12 June, 2025
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR. JUSTICE G. RADHA RANI
CIVIL REVISION PETITION No.284 of 2019
ORDER:
This Civil Revision Petition is filed by the tenant aggrieved by the order dated 26.07.2018 passed by the learned Additional Chief Judge, City Small Causes Court, Hyderabad, wherein the order passed by the learned II Additional Rent Controller, City Small Causes Court, Hyderabad in R.C.No.78 of 2014 dated 13.10.2016 fixing fair rent at the rate of Rs.8055/- per month is confirmed.
2. The respondent is the landlord and he filed R.C.No.78 of 2014 for fixing fair rent under Section 4(1) of the AP Buildings (Lease, Rent & Eviction) Control Act, 1960.
3. The parties are herein after referred to as arrayed in R.C.No.78 of 2014.
4. The contention of the petitioner - landlord in R.C.No.78 of 2014 was that he was the absolute owner of house property bearing Municipal No.4-4-224 admeasuring 537 square feet situated at Sultan Bazar, Hyderabad. The father of the respondent obtained the premises from the father of the petitioner for residential purpose 40 years ago and the tenancy was continued with the same relationship of landlord and tenant between the petitioner and respondent. The respondent was paying the rents @ Rs.1,050/- per month and the tenancy was 2 Dr.GRR, J crp_284_2019 oral. The premises was located in Sultan Bazar and Badi Chowdi area, which was part of the city and one of the oldest commercial markets of Hyderabad. The rents in the said locality had increased multifold for the past 5 to 10 years. But the respondent continued to reside there and used it as residential - cum - commercial occupation. He was enjoying the premises by paying meager rents as against the prevailing market rate of Rs.35/- per square feet, which would turn out to be Rs.18,795/- for a premises of 537 square feet and requested the Rent Control Court to fix fair rent by enhancing the rent from Rs.1,050/- to Rs.18,795/- @ Rs.35/- per square feet. He also submitted that he also filed a petition for eviction before the II Additional Rent Controller vide R.C.No.293 of 2013 and the same was pending.
5. The tenant filed counter contending that the original owner of the schedule property was one Parvathi Bai, W/o.Sukhadev Pershad from whom the father of the respondent by name Balakrishna had taken the schedule property on rental basis @ Rs.150/- per month on 01.05.1968 and since then the tenancy was continuing from time to time. After Parvathi Bai died in December, 1975, her husband Sukhadev Pershad started collecting rents and thereafter his son Durga Pershad collected the rents from time to time. Thereafter, the petitioner being the son of Durga Pershad was collecting the rents. The rents were enhanced time to time and the respondent - tenant paid the enhanced rent @ Rs.1,050/- per month from April, 2012 onwards. The petitioner was collecting 3 Dr.GRR, J crp_284_2019 the rents in the capacity as agent, but he was neither the owner nor having any right to evict the respondent. The petitioner was accepting the rents without raising any objection. No legal notice was issued to him prior to filing the RC proceedings. He further submitted that the building was constructed in the year 1965. Some portion on the backside of the building had come down and the GHMC had also issued notice. The rent claimed to be enhanced to Rs.18,795/- was against the law. The petitioner was somehow trying to get the respondent evicted from the schedule premises and prayed to dismiss the petition.
6. The petitioner - landlord was examined as PW.1 and Ex.P1 was marked on his behalf. The respondent - tenant was examined as RW.1 and Exs.R1 to R62 were marked on his behalf.
7. The learned II Additional Rent Controller, Hyderabad observing that the schedule property was located in the heart of the city and it was a commercial hub and the rents in the locality had increased multifold and the respondent was using it as a residential - cum - commercial occupation fixed fair rent @ Rs.15/- per square feet and considering the extent of the premises as 537 square feet, fixed it as Rs.8,055/- per month from the date of petition and directed the respondent to enhance the rent @ 10% on the existing rate of rent for every two years from that date. The said order was passed on 13.10.2016. 4
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8. Aggrieved by the said order, the respondent - tenant preferred R.A.No.204 of 2016 mainly contending that the Controller though appointed a Court Commissioner, who submitted his report, neither discussed nor considered the said report. As such, the order passed by the Rent Controller was bad for non-consideration of the material evidence on record. The Controller had not considered the age of the building and allied factors, which were necessary for determining the rent and wrongly fixed the rent of the old and dilapidated building on square feet basis, which was unwarranted. The rent enhanced was highly exorbitant. The provision under Section 4(1) of the Act would not permit to enhance the rent for residential plots more than 75 % of the existing rent and for non-residential plots more than 150 %. He further contended that no documentary proof was filed by the landlord except marking Ex.P1 to show the extent of the property as 537 square feet.
9. The learned Additional Chief Judge, City Small Causes Court, Hyderabad on considering the oral and documentary evidence on record, dismissed the R.A. confirming the orders dated 13.10.2016 passed by the II Additional Rent Controller, City Small Causes Court, Hyderabad, in R.C.No.78 of 2014.
10. With regard to the contention of non-considering the Commissioner's report, the learned Additional Chief Judge, City Small Causes Court, Hyderabad observed that the Commissioner's report dated 08.03.2016 was not testified, not 5 Dr.GRR, J crp_284_2019 marked and exhibited as documentary evidence by the Rent Controller and as such it could not be relied upon. Even if the Commissioner's report was considered as part of the record, the Commissioner had taken photographs and measurements with the help of a private supervisor and manually added that the measurements were 410.85 square feet. The plan enclosed to the report was prepared by a private supervisor and in the said plan, some of the portions had been excluded and its measurements were not furnished. No plan or report signed by both the parties or counsel was filed for manually adding the measurements at 410.85 square feet. It was the case of the landlord that common areas like balcony, passage, open area in front of the petition schedule property, which would form part and parcel of it were not taken into consideration by the Advocate Commissioner. Therefore, the Advocate Commissioner's report could not be taken into consideration to conclude the total measurements of the petition schedule property as less than 537 square feet. The Lower Appellate Court further observed that the dispute raised by the tenant in respect of the extent of the schedule property was not supported by any material evidence. The incomplete measurements mentioned in the Advocate Commissioner's report alone could not be taken as criteria to determine the extent of the schedule property as less than 537 square feet.
11. Aggrieved by the order passed by the learned Additional Chief Judge, City Small Causes Court, Hyderabad, the tenant preferred this revision. 6
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12. Heard Sri P.S.Rajasekhar, learned counsel for the revision petitioner and Sri Dinesh Kumar, learned counsel for the respondent.
13. Learned counsel for the revision petitioner contended that both the courts below failed to appreciate that the petitioner filed I.A.No.24 of 2016 in R.C.No.78 of 2016 for appointment of Advocate Commissioner to note down the measurements of the petition schedule property and that the same was allowed after contest on 11.02.2016. The Advocate Commissioner submitted the report that the total extent in occupation of the petitioner was 410.85 square feet and not 537 square feet as claimed by the respondent - landlord. The eviction case filed by the respondent vide R.C.No.293 of 2013 was dismissed and the same became final. The courts below failed to appreciate that the respondent did not file a single document in support of his contention for enhancement of fair rent. The petition schedule property was constructed in the year 1965 and it was in a dilapidated condition and would not fetch Rs.8,055/- per month towards rent. The schedule property was located in a bye lane and at a dead end and relied upon the Division Bench judgment of the High Court of Andhra Pradesh in Suresh Gir v. K.Sahadev 1 and in Taramani v. Brij Gopal Lakhotiya 2.
1 (1998) 1 ALD 25 (DB) 2 (2011) 4 ALD 31 7 Dr.GRR, J crp_284_2019
14. Learned counsel for the petitioner further contended that when the Court was handicapped with evidence for fixing fair rent and an Advocate Commissioner was appointed for the said purpose, not considering the report submitted by the Advocate Commissioner would amount to non-consideration of the material evidence on record and prayed to set aside the orders passed by the courts below.
15. Learned counsel for the respondent - landlord contended that the Advocate Commissioner had submitted his report ignoring the common areas. He failed to take measurements of the balcony infront of the petition schedule property. The property was located in a prime and busy area. Both the courts below on considering the oral and documentary evidence on record passed the orders fixing the fair rent. No interference was required by this Court to set aside the same and prayed to dismiss the revision and relied upon the judgment of this Court in Shafeequn Begum v. Laxmi Narayan Rathi and Others 3.
16. Now the point for consideration in this revision is whether the orders passed by the courts below ignoring the Commissioner's report would amount to material irregularity justifying interference in revision?
17. As seen from the record, an Advocate Commissioner was appointed by the Rent Controller on the application filed by the tenant for noting down the 3 2023 (5) ALD 446 8 Dr.GRR, J crp_284_2019 measurements of petition schedule property vide I.A.No.24 of 2016 in R.C.No.78 of 2016 and the same was allowed after contest on 11.02.2016. The Advocate Commissioner also submitted his report, which was part of the record. The same was not taken into consideration by the Rent Controller. The order of the Rent Controller would not disclose or discuss about the Commissioner's report. The order was passed in complete ignorance of the Commissioner's report. The same was agitated as the main ground by the respondent - tenant in R.A.No.204 of 2016. However, the learned Additional Chief Judge, City Small Causes Court, Hyderabad made observations that as the same was not marked and exhibited as documentary evidence, the same could not be relied.
18. Under Order XXVI Rule 10(2) of CPC, the Commissioner's report forms part of the record. Though proper marking and proving of documents is essential, mere technical non-marking would not invalidate the said report when both parties had notice of the same. Though the respondent - landlord raised objections on the Advocate Commissioner's report, he had not sought for examining the Commissioner as a witness for cross-examining him.
19. The Hon'ble Apex Court in K.K.Velusamy v. N.Palanisamy 4 held that the Commissioner's report would be part of the record unless objected to. When no objection was taken at the time of trial, the report could be relied upon. Non- marking of a document, otherwise on record is a curable procedural lapse. 4 (2011) 11 SCC 275 9 Dr.GRR, J crp_284_2019 Especially in Rent Control proceedings which are summary in nature, strict evidentiary formalities need not be complied, when justice and facts warrant reliance on the report. Since the Commissioner appointed by the Court is an Officer of the Court, his report stands differently from normal evidence and marking becomes necessary only if disputed or subject to cross-examination. Since there was no objection to its filing or its contents at the time when it was submitted and the respondent - landlord did not seek for cross-examination, the lower appellate Court ought to have acted upon it when the said ground was raised by the counsel for the appellant before it. Non-consideration of the report is a material irregularity. Particularly in Rent Control proceedings, especially in fair rent fixation, as the Advocate Commissioner's report serves as an important expert / local inspection report, the same is relevant evidence under Section 75(g) and Order XXVI Rule 9 of CPC and total disregard of it by the Rent Controller without assigning any reasons amounts to non-application of mind and violation of principles of natural justice. The observation of the learned Additional Chief Judge, City Small Causes Court, Hyderabad that the report was not signed by both the parties is not correct, as the report would disclose that it was signed by both the parties as well as their counsel, the draft planner and the Advocate Commissioner.
20. The Advocate Commissioner was mainly appointed to note down the measurements of petition schedule property and he had noted the measurements 10 Dr.GRR, J crp_284_2019 of the schedule property with the assistance of the planner as 410.85 square feet. The objections against the report were that the Commissioner had gone beyond the scope of the warrant by taking photographs from mobile phone and exceeded the scope of the warrant by taking measurements of the balcony in front of the petition schedule property inspite of the objection raised by the counsel. Thus, the objections were with regard to taking measurements of the balcony, but not for not taking the measurements of the balcony. As the report would disclose that the measurement of the schedule property was only 410.85 square feet, the Rent Controller as well as the lower Appellate Court committed a mistake in considering the extent of property as 537 square feet.
21. However, this Court does not find any error in fixing the fair rent of the schedule property @ Rs.15/- per square feet, as the same was assessed by taking into consideration the commercial locality of the building and that the revision petitioner - tenant was using the same as a godown for commercial purpose. Both the learned counsel submitted that the tenant vacated the premises on 07.02.2023. However, as the revision petitioner - tenant was required to pay the fair rent as fixed by the court since the date of filing the application by the respondent - landlord, this Court considers it fair to revise the order by modifying the same by fixing the fair rent @ Rs.15/- per square feet for an extent of 410.85 square feet to the premises, which comes to Rs.6,162.75/- from the date of petition. Though, non-consideration of the Commissioner's report 11 Dr.GRR, J crp_284_2019 entails remanding the matter to the Rent Controller, however, as it would not require fresh factual adjudication, and no further evidence was required and the Commissioner's report is conclusive and considering that the matter was long pending and the tenant already vacated the premises, this Court undertook to fix the fair rent by itself.
22. In the result, the Civil Revision Petition is allowed modifying the order dated 26.07.2018 passed in R.A.No.204 of 2016 by the learned Additional Chief Judge, City Small Causes Court, Hyderabad and the learned II Additional Rent Controller, City Small Causes Court, Hyderabad in R.C.No.78 of 2014 dated 13.10.2016 by fixing the fair rent @ Rs.6,162.75/- per month from the date of petition @ Rs.15/- per square feet to the premises by taking the measurements of the schedule property as 410.85 square feet. No modification of the order was required with regard to enhancement of rent @ 10% on the existing rent for every two years. The revision petitioner - tenant is directed to pay the determined fair rent arrears within a period of two months from the date of this order.
No order as to costs.
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Dr.GRR, J crp_284_2019 As a sequel, miscellaneous applications pending in this petition, if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J Date: 12.06.2025 Nsk.