Kerala High Court
Francis T.Chandy vs P.T.James on 22 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.
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
RCREV. NO. 98 OF 2024
AGAINST THE JUDGMENT DATED 30.03.2023 IN RCA NO.19 OF 2016 OF
THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT &
SESSIONS COURT), THRISSUR AGAINST THE ORDER DATED 30.10.2015
IN RCP NO.92 OF 2013 OF RENT CONTROLLER (PRINCIPAL MUNSIFF
COURT), THRISSUR
REVISION PETITIONER/APPELLANT/RESPONDENT :
P.T.JAMES,
AGED 62 YEARS
S/O. PALAMITTAM THOMAS, ST.MARY'S STREET,
KURIACHIRA DESOM, CHIYYARAM VILLAGE,
THRISSUR TALUK-, PIN - 680026
BY ADVS.
K.M.MUHAMMED HUSSAIN
T.K.VIPINDAS
RESPONDENT(S)/RESPONDENT/PETITIONER :
FRANCIS T.CHANDY,
AGED 62 YEARS
S/O. CHANDY THIMATHY, CHANDY HOUSE ,
MISSION QUARTERS ,THRISSUR -, PIN - 680001
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 22.05.2024, ALONG WITH RCRev..176/2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
R.C.R Nos.176 of 2023
& 98 of 2024 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
RCREV. NO. 176 OF 2023
AGAINST THE JUDGMENT DATED 30.03.2023 IN RCA NO.30 OF 2016 OF
RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT COURT-I),
THRISSUR ARISING OUT OF THE ORDER DATED 30.10.2015 IN RCP
NO.92 OF 2013 OF THE RENT CONTROLLER (I ADDITIONAL MUNSIFF
COURT) ,THRISSUR
REVISION PETITIONER/APPELLANT/PETITIONER :
FRANCIS T.CHANDY
AGED 62 YEARS
S/O. CHANDY THIMATHY, CHANDY HOUSE,
MISSION QUARTERS, CHEMBUKKAVU,
THRISSUR ., PIN - 680001
BY ADVS.
P.B.SUBRAMANYAN
P.B.KRISHNAN
SABU GEORGE
B.ANUSREE
MANU VYASAN PETER
MEERA P.
RESPONDENT/RESPONDENT/RESPONDENT :
P.T.JAMES
AGED 63 YEARS
S/O. PALAMATTAM THOMAS, ST.MARY'S STREET,
KURIACHIRA DESOM, CHIYYARAM VILLAGE,
THRISSUR., PIN - 680006
R.C.R Nos.176 of 2023
& 98 of 2024 3
BY ADVS.
K.M.MUHAMMED HUSSAIN
T.K.VIPINDAS(K/528/1995)
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 22.05.2024, ALONG WITH RCRev..98/2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C.R Nos.176 of 2023
& 98 of 2024 4
AMIT RAWAL & EASWARAN S. , JJ.
-------------------------
R.C.R Nos.176 of 2023 & 98 of 2024
-----------------------------------
Dated this the 22nd day of May 2024
ORDER
AMIT RAWAL, J.
This order of us shall dispose of two Rent Control Revisions;
R.C.R No.173 of 2023 by the landlord against the judgment of the
Rent Controller and the Appellate authority and R.C.R. No.98 of
2024 on behalf of the tenant.
2. Succinctly the facts in brief are as follows:
2.1 The tenant Sri.P.T. James, who is the petitioner in R.C.R.
No.98 of 2024 and respondent in R.C.R. No.176 of 2023 will be
referred as the tenant and Sri.Francis T. Chandy, who is the
petitioner in R.C.R.No.176 of 2023 and respondent in R.C.R. No.98
of 2024 will be referred as the landlord.
2.2 The landlord instituted a petition in 2013 for claiming the
fixation of fair rent at the rate of Rs.15,000/- on the premise that
the area in occupation of the tenant is 1000 square feet and was
inducted as a tenant in 2004 at the rate of Rs.3000/- with 15%
increase every three years. At the time of the institution of the rent
petition, the enhanced rate of rent was Rs.5000/-. Before the Rent
Controller, landlord was supposed to examine the witnesses and
place on record the lease deeds of the adjoining area for assisting
the Rent Controller for arriving at a just and equitable decision, but
instead, had brought on record fair value certificate of the land and
not of the building and the Commissioner's report. On the basis of
the location and the area, learned Rent Controller allowed the rent
petition and fixed the rent at the rate of Rs.10,000/-.
2.3. Being aggrieved by the finding, two appeals were
preferred before the appellate authority as R.C.A. 13 of 2016 on
behalf of the landlord and R.C.A. No.19 of 2016 on behalf of the
tenant; both the appeals have been dismissed.
3. Mr. Subramaniam, learned counsel appearing on behalf of
the landlord, submitted that the learned Rent Controller while
adjudicating the rent petition has not taken into consideration the
ratio decidendi culled out by the Full Bench of this Court in Rahul v.
Sudheesh [2023 (2) KLT 771 (FB)] for, it failed to add the clause of
periodical increase of three years at a certain percentage. It is on
that account, the appeal and revision petition has been filed.
4. On the contrary, Mr.Vipin Das, the learned counsel
appearing on behalf of the tenant contended that both the courts
have abdicated in allowing the rent petition and dismissing the
appeal for not noticing the fact that the landlord has failed to bring
on record any direct and cogent evidence, except the two
documents which cannot be a basis for determining the rate of rent
and the rent petition was liable to be dismissed.
5. We have heard the learned counsel for the parties and
perused the paper books.
6. Paragraph No.4 of the judgment relied on by the learned
counsel for the landlord, Rahul v. Sudheesh [2023 (2) KLT 771
(FB)] reads as under:
4. By the order dated 08.01.2016, this Rent Control
Petition was directed to be placed before the Honourable
the Chief Justice, to place the matter before a Full Bench.
Paragraphs 2 to 4 of that order read thus;
"2. One of the issues that arise for consideration in
this revision petition is whether, while fixing the fair rent,
the Rent Control Court can direct that the rent fixed by it
will stand increased periodically even without a fresh
application for fixation of fair rent being filed. While Sri
P.A. Harish, learned counsel appearing for the tenant
submits, relying on the decision of a Division Bench of
this court in Kadar Pillai v. Goven Travels [2014 (4) KLT
593] that periodical enhancement cannot be granted by
the Rent Control Court while fixing the fair rent, learned
counsel appearing for the respondents submits, relying
on the decisions of two Division Benches of this Court in
Sreekumaran Nair v. V.A. Ponnuswami Chettiyar [2010
(3) KLT 444] and George v. T.K. Saidu Muhammed [2013
(2) KLT 513] that such periodical enhancement is
permissible. Learned counsel appearing on both sides
also invited our attention to the recent decision of a
Division Bench of this court in Rajesh R. Kartha v. K.A.
Ismail (2016 (1) KLT SN 85 (C.No.91)= [2015 (4) KHC
408] wherein the Division Bench has granted only a
quinquennial enhancement of fair rent by 15%.
3. A reading of the decision of the Division Bench in
Kadar Pillai v. Goven Travels (supra) discloses that it was
after noticing the decision of the Division Bench in
Sreekumaran Nair v. V.A. Ponnuswami Chettiyar (supra)
that the Division Bench held that the cause of action to
fix fair rent is a recurring cause of action depending upon
the factors that warrant fixation of the fair rent. It was
held that in an extreme case, the fair rent so fixed may
have to be reduced on account of the decrease in market
transactions, change of main avenue, shift of commercial
activities, diversion of main road, etc. and therefore in
such a situation it is not safe to award periodical
increase. The Division Bench thereafter proceeded to hold
that in the case before it no reasons have been assigned
by the Rent Control Court to grant periodical
enhancement and accordingly affirmed the decision of the
Appellate Authority which had set aside the periodical
enhancement granted by the Rent Control Court. The
Division Bench, which decided Rajesh R. Kartha v. K.A.
Ismail (supra) has not referred to the decision of the
Division Bench in Sreekumaran Nair v. V.A. Ponnuswami
Chettiyar (supra). In view of the conflict of judicial
opinion as regards the question whether the Rent Control
Court while fixing the fair rent can grant periodical
increase in the fair rent so fixed, we are of the opinion
that the said issue requires consideration by a Full Bench
of this Court, as otherwise the Rent Control Courts/Rent
Control Appellate Authorities will find it difficult to decide
the question whether periodical increase in the fair rent
can be granted while exercising jurisdiction under section
5(1) of the Act.
4. There is also yet another reason why we are
inclined to refer this revision petition to a Full Bench for
consideration. The Apex Court has in Mohammad Ahmad
and another v. Atma Ram Chauhan and others
(2011(2)KLT SN.98 (C.No.120) SC= [AIR 2011 SC 1940]
while laying down the guidelines and norms to be
followed in litigations between landlord and tenant, inter
alia stipulated that if the present and prevailing market
rent assessed and fixed between the parties is paid by
the tenant, then the landlord shall not be entitled to bring
any action for his eviction at least for a period of five
years. In other words, it was stipulated that for a period
of five years the tenant shall enjoy immunity from being
evicted. The said stipulation was pressed into service
before the Division Bench which decided Subair and
others v. C.P.Kunhami Kunjhimariyam and others (2015
(4) KLT SN.137 (C.No.165) = [2015 (5) KHC 260]
wherein, the Division Bench to which one of us
(P.N.Ravindran, J.) was a party, held that fair rent was
fixed with effect from the date of the petition and by the
time the petition for eviction was filed, the said period of
five years had expired and therefore, no reliance can be
placed on the decision of the Apex Court in Mohammad
Ahmad and another v. Atma Ram Chauhan and others
(supra) to contend for the position that the petition for
eviction which was filed within a period of five years from
the date of the order fixing the fair rent, is not
maintainable. It is relevant in this context to note that if
the guideline laid down by the Apex Court in the
aforesaid decision is pressed into service, a tenant of a
building inrespect of which fair rent has been fixed can
with impunity sub-let the tenanted premises, cause
material alteration and damage to the building, refuse to
pay even the fair rent fixed by the Rent Control Court and
close down his business and in such eventualities, the
landlord will be disabled from instituting a petition for
eviction for a period of five years. There may also be
cases where a dire need for own occupation may arise
after the fair rent is fixed. Such being the situation, we
are of the opinion that the said question also deserves to
be considered by a Full Bench of this court. The question
whether Sections 5, 6 and 8 of the Act which were
declared to be unconstitutional and void by a Division
Bench of this court in Issac Ninan v. State of Kerala
[1995 (2) KLT 848] can be brought back to the statute by
a court exercising the power of review or by a bench of
co-ordinate strength on the reasoning that unless all or
any of the provisions of the Act are thus restored, the
Rent Control Courts will not be in a position to discharge
their duties, has also been referred to a Full Bench of this
Court as per the reference order passed on 11.9.2015 in
R.C.R.Nos.203 and 348 of 2013."
7. No doubt the landlord has miserably failed to place on
record the lease deeds of the adjacent area for determining the fair
value of the rent which could have been helpful for the court below,
but the reasoning assigned by the Rent Controller in arriving at the
rent rate of Rs.10,000/- is based on the location and the area in
occupation of the tenant. We find that the findings are perfectly
legal and justified and do not call for any interference, except for
modification in view of the observations recorded in Rahul (Supra).
8. Accordingly, both the Rent Control Revisions are disposed
of directing that the tenant shall continue to pay the rent at the rate
of Rs.10,000/- with a periodical increase of 15% after every three
years and shall pay the arrears and continue to pay the increase
within a period of two months from the date of receipt of a certified
copy of this order.
Sd/-
AMIT RAWAL, JUDGE
Sd/-
EASWARAN S., JUDGE
NS
