P.V.Joseph vs Church Of South India Trust ...
2023 Latest Caselaw 1639 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
              THE HONOURABLE MR.JUSTICE P.B.SURESH KUMAR
                                  &
                THE HONOURABLE MRS.JUSTICE C.S. SUDHA

      FRIDAY, THE 27TH DAY OF JANUARY 2023 / 7TH MAGHA, 1944
                        RCREV. NO. 140 OF 2021
AGAINST THE ORDER DATED 01.09.2016 IN RCP NO.26/2014 OF ADDITIONAL
                     RENT CONTROL COURT, KOTTAYAM
 AGAINST THE ORDER DATED 06.02.2021 IN RCA 49/2016 OF ADDITIONAL
          RENT CONTROL APPELLATE AUTHORITY-IV, KOTTAYAM
REVISION PETITIONER:

          P.V.JOSEPH
          AGED 70 YEARS
          S/O. P.L.VARGHESE JOSEPH, PADIYATHIL OPTICIAN AND LENS
          CLINIC, GROUND FLOOR, C.S.I., MINI SHOPPING COMPLEX,
          BAKER JUNCTION, KOTTAYAM AND IS RESIDING AT PADIYATTIL
          HOUSE, VELOOR KARA, VELOOR VILLAGE, KOTTAYAM WEST P.O.,
          PIN-686003, KOTTAYAM TALUK, KOTTAYAM DISTRICT.

          BY ADV NANDAGOPAL S.KURUP



RESPONDENT:

          CHURCH OF SOUTH INDIA TRUST ASSOCIATION
          A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT,
          1956 HAVING ITS REGISTERED OFFICE AT NO.5, WHITES ROAD,
          ROYAPETTAH, CHENNAI-600014, REPRESENTED BY ITS POWER OF
          ATTORNEY HOLDERS- 1.REV.DANIEL GEORGE, AGED 61, S/O.
          P.J.GEORGE, TREASURER, C.S.I. MADHYA KERALA DIOCESE,
          CATHEDRAL ROAD, KOTTAYAM-686001. 2. PROF.GEORGE JACOB,
          AGED 68 YEARS, S/O.T.V.CHACKO, LAY SECRETARY, C.S.I.
          MADHYA KERALA DIOCESE, CATHEDRAL ROAD, KOTTAYAM-686001.

          BY ADVS.
          SAJI MATHEW
          DENU JOSEPH
          BIBIN BABU


     THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING
ON 27.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 R.C.R.No.140 of 2021
                                           2

                 P.B.SURESH KUMAR & C.S.SUDHA, JJ.
                    --------------------------------------------------
                              R.C.R.No.140 of 2021
                      -------------------------------------------
                   Dated this the 27th day of January, 2023


                                     ORDER

C.S.Sudha, J.

This R.C.R. under Section 20 of the Kerala Buildings (Lease and

Rent Control) Act, 1965 (the Act) has been filed against the judgment dated

06/02/2021 in R.C.A.No.49/2016 on the file of the Rent Control Appellate

Authority (RCAA), Kottayam, which appeal is against the order dated

01/09/2016 in R.C.P.No.26/2014 on the file of the Rent Control Court

(RCC), Kottayam. The revision petitioner is the appellant in the appeal and

the respondent-tenant in the R.C.P. The respondent herein, is the respondent

in the appeal and the petitioner-landlord in the R.C.P. The parties and the

documents will be referred to as described in the R.C.P.

2. R.C.P.No.26/2014 was filed by the petitioner-landlord seeking

fixation of fair rent under Section 5 of the Act. In the R.C.P. it is alleged

that the petitioner, namely, C.S.I. Trust Association, constituted as a

statutory legal body is holding movable and immovable properties of the

Church of South India and that the petitioner is administering and

supervising the same for ensuring that the income arising there from is

properly applied for the object and purpose of the Church of South India. R.C.R.No.140 of 2021

The petitioner was registered in September, 1947 under the Indian

Companies Act, 1913 as a religious and charitable company having no

business character or no profit motive. The petitioner is represented by its

power of attorney holders, namely, the Treasurer of the C.S.I. Madhya

Kerala Diocese who is also the nominee of the Bishop of the C.S.I. Madhya

Kerala Diocese, Kottayam and the Lay Secretary of the C.S.I. Madhya

Kerala Diocese. The petitioner is the owner of the petition schedule

buildings. As per a lease agreement entered into between the petitioner and

the respondent, the room bearing No.XVII/824 on the ground floor of the

C.S.I. Mini Shopping Complex having an area of 200 sq.ft. has been let out

in April 1977 for a monthly rent of ₹400/-. The present rate of rent is

₹1000/- per month. The respondent is conducting a business in opticals

under the name and style 'JOSEPH PADAYATTIL'. The said room is

petition schedule Item No.1. The respondent has also taken on rent another

room bearing No. KMC IX/474/A-12, having a plinth area of 280 sq.ft.

which is situated in the ground floor of the C.I.S. Golden Jubilee Complex

for a monthly rent of ₹2800/- on execution of lease agreement dated

25/06/2001, which is a registered deed. The said room was also taken on rent

for conducting the aforesaid business. The said room is the petition schedule

Item No.2.

R.C.R.No.140 of 2021

2.1. At the time of occupation of the schedule rooms, the counter

petitioner had paid an amount of ₹10,000/- (Rupees Ten thousand only) and

₹5,00,000/- (Rupees Five lakhs only) respectively for the two rooms as

interest free security deposit to the petitioner. The said amounts will be

returned to the respondent without interest when vacant possession of the

schedule rooms are handed over to the petitioner. The monthly rent now

being paid for the tenanted premises is a paltry sum. The building housing

the schedule rooms are situated in a commercial locality. There are several

institutions of public importance near the tenanted premises. The prevailing

rate of rent in the locality is ₹50 to 60 per sq.ft. for a room in the ground

floor. Going by the prevailing rate, the minimum monthly rent payable is

₹12,000/- and ₹ 16,980/- for petition schedule Item No.1 and 2 respectively.

The present rent of ₹1,000/- for schedule item No.1 was agreed 37 years

ago. The rent of ₹2,800/- for Item No.2 was agreed 13 years ago. They are

quite meager compared to the prevailing rate of rent. Therefore, the

petitioner prayed for fixation of fair rent at the rate of ₹60/- per sq.ft. and to

direct the respondent to pay rent at the rate of ₹12,000/- and ₹16,980/- for

schedule Item No. 1 and 2 respectively. Enhancement at the rate of 10%

every year was also sought for.

3. The respondent entered appearance and filed objection

contending that the R.C.P. has not been properly instituted by an authority R.C.R.No.140 of 2021

competent to do so. According to the respondent, the rent being paid for the

two rooms is quite reasonable and therefore there is no need to revise the

rent as prayed for by the petitioner.

4. PW 1 and 2 were examined and Exts. A1 to A8 were marked

on the side of the petitioner. DW1 was examined on the side of respondent.

No documentary evidence was produced by the respondent. The reports of

the advocate commissioner have been marked as Exts.C1 and C2. On an

appreciation of the oral and documentary evidence and after hearing both

sides, the RCC fixed the fair rent of petition schedule Item No.1 as ₹6,000/-

per month, that is, at the rate of ₹30 per sq. ft. The rent of petition schedule

Item No. 2 was fixed as ₹8,400/-, which is also at the rate of ₹30 per sq.ft.

The fair rent was directed to be paid from the date of the order.

Enhancement at the rate of 10% was also ordered every three years. The

petitioner-landlord filed R.C.A.No.5/2016 alleging that the rent fixed is too

low. The tenant also filed appeal, that is, R.C.A.No.49/2016. The RCAA by

the impugned common judgment confirmed the findings of the RCC and

dismissed both the appeals. Aggrieved, the respondent-tenant has come up in

revision.

5. Heard Sri. Nandagopal S.Kurup, the learned counsel for the

revision petitioner and Sri. Saji Mathew, the learned counsel for the

respondent.

R.C.R.No.140 of 2021

6. The only point that arises for consideration is, whether the

findings of the RCAA suffer from any illegality, irregularity or impropriety.

7. The scope of interference by the revisional court under Section

20 of the Act is restricted to cases where the RCC or RCAA have relied on

irrelevant consideration, ignored valuable items of evidence or applied

wrong principles of law. The power of revision is limited to making a

scrutiny of the records to satisfy itself as to the three tests laid down in

Section 20. The revisional court cannot convert itself into an evidence

collecting or fact finding court. As held by a Constitution Bench of the Apex

Court in Hindustan Petroleum Corporation Ltd . v. Dilbahar Singh, AIR

2014 SC 3708, a finding of fact recorded by the RCC or the RCAA if

perverse, or has been arrived at without consideration of the material

evidence or such finding is based on no evidence or misreading of the

evidence or is grossly erroneous that, if allowed to stand, would result in

gross miscarriage of justice, then it is open to correction, because it is not

treated as a finding according to law. In that event, the High Court in

exercise of its revisional jurisdiction under the Act is entitled to set aside the

impugned order as being not legal or proper. The High Court is entitled to

satisfy itself of the correctness or legality or propriety of any decision or

order impugned before it.

R.C.R.No.140 of 2021

8. It was argued on behalf of the tenant that no documents have

been produced before the RCC to show that the persons who had filed the

R.C.P. were authorized by the petitioner Company to do so. Hence the

institution of the R.C.P. itself was defective. On going through the R.C.P.

we found that along with the R.C.P. a notarized copy of the power of

attorney dated 11/07/2012 executed by the Secretary and Treasurer of the

petitioner had been produced, which is referred to in the list of documents

seen at page 7 of the R.C.P. This document has not been marked in

evidence. It was also not forwarded to this court. Therefore by order dated

11.01.2023, we directed the Registry to ascertain from the RCC concerned

and to report whether the petitioner had produced the said power of attorney

along with the R.C.P. If the document had been produced, the RCC was

directed to forward the same to this court. Pursuant to the same the said

power of attorney has been forwarded to this court. This document is not

disputed by the tenant.

9. It is true that it is not the power of attorney holders referred to

in the R.C.P. who had been examined before the RCC. On the other hand,

the proof affidavit is seen field by Rev. Dr. Sabu K.Cherian, the power of

attorney holder of the persons mentioned in the petition. He was examined

as PW1. Ext.A1 power of attorney is in his favour. In the light of these

documents, the argument that the R.C.P. was not properly instituted and that R.C.R.No.140 of 2021

the person who gave evidence was also not authorized to do so are only

liable to be rejected.

10. It was further argued on behalf of the tenant that both the

Authorities never took into account the facts reported in Ext. C2 report. This

report would shows that petition schedule Item No.1 is in a dilapidated

condition and that the roof is leaking. There is also no parking space for the

said building and therefore it would never fetch the rent fixed by the court.

We went through the orders of both the authorities as well as the evidence

on record. Admittedly, Ext.A7 is the lease deed relating to another room in

the very same building in which the petition schedule Item No.1 is housed.

The rate of rent for the said room is ₹40 per sq.ft. It is true that the R.C.P. in

this case was filed in the year 2014 and Ext.A7 is of the year 2016.

However, it is to be noted that the RCC has not fixed the rent at the rate of

₹40/- as evidenced by Ext.A7 document. But the rent fixed is only at the rate

of ₹30/- per month. The RCC has fixed the rent based on the directions of

this court in Edger Ferus v. Abraham Ittycheria, 2004(1) KLT 767 as

well as in the decision of the Apex court in Mohammad Ahmad v. Atma

Ram Chauhan, AIR 2011 SC 1940. The RCAA, on a complete re-

appreciation of the evidence has confirmed the findings of the RCC. The

tenant has been unable to show in what manner the findings of the

Authorities suffer from any illegality, irregularity or impropriety, calling for R.C.R.No.140 of 2021

an interference by this court.

In the result, we find no merits in the revision. Hence the the Rent

Control Revision is dismissed confirming the impugned judgment in

R.C.A.No.49/2016.

Interlocutory applications, if any pending, shall stand closed.

Sd/-

P.B.SURESH KUMAR JUDGE

Sd/-

C.S.SUDHA JUDGE

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