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.
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R.C.Rev.No.73 of 2020
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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
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. 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
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
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
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
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
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
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
