Kerala High Court

Areeffa Beevi vs Dr. Thomas Abraham on 28 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 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
                                RCREV. NO. 46 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 08.04.2021 IN RCA NO.9 OF 2019 OF RENT
CONTROL      APPELLATE      AUTHORITY      (ADDITIONAL       DISTRICT         JUDGE-IV),
PATHANAMTHITTA ARISING OUT OF THE ORDER/JUDGMENT DATED 24.07.2019 IN RCP
NO.3 OF 2016 OF RENT CONTROLLER (MUNSIFF COURT) ,PATHANAMTHITTA
REVISION PETITIONER/APPELLAT/RESPONDENT:

              AREEFFA BEEVI
              AGED 59 YEARS, W/O P S ASHRAF, AMEEN MANZIL,
              VETTIPPURAM P.O, PATHANAMTHITTA VILLAGE & PROPRIETOR ALANKAR
              HYPER MARKET, T K ROAD, PATHANAMTHITTA, PIN - 689645

              BY ADVS.
              MANU RAMACHANDRAN
              M.KIRANLAL
              T.S.SARATH
              R.RAJESH (VARKALA)
              SAMEER M NAIR
              HARSHA SUSAN SAM
              GEETHU KRISHNAN



RESPONDENT/RESPONDENT/PETITIONER:

              DR. THOMAS ABRAHAM
              AGED 72 YEARS, S/O T G ABRAHAM, THELLIRETHU HOUSE,
              CHITTOOR MURI,PATHANAMTHITTA VILLAGE, REPRESENTED BY HIS
              POWER-OF-ATTORNEY HOLDER DR. T.A GEORGE, S/O T.G ABRAHAM,
              AGED 85 YEARS, THELLIRETHU HOUSE, CHITOOR MURI,
              PATHANAMTHITTA VILLAGE, PATHANAMTHITTA, PIN - 689645

              BY ADVS.
              K.SHAJ
              ARUN CHAND(K/000860/2016)
              BHARAT VIJAY P.(K/000976/2018)
              MINU VITTORRIA PAULSON(K/739/2020)


     THIS     RENT    CONTROL   REVISION   HAVING    COME   UP    FOR   ADMISSION     ON
28.05.2024,    ALONG     WITH   RCRev..60/2023,     THE   COURT   ON    THE   SAME   DAY
DELIVERED THE FOLLOWING:
 RCREV.NO.46/2024 & 60/2023
                                        2




             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
              THE HONOURABLE MR. JUSTICE AMIT RAWAL
                                        &
              THE HONOURABLE MR. JUSTICE EASWARAN S.
  TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
                         RCREV. NO. 60 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 08.04.2021 IN RCA NO.9 OF 2019
OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-
IV),   PATHANAMTHITTA     ARISING     OUT    OF   THE    ORDER/JUDGMENT   DATED
24.07.2019    IN   RCP   NO.3   OF    2016   OF   RENT    CONTROLLER   (MUNSIFF
COURT) ,PATHANAMTHITTA


REVISION PETITIONER/RESPONDENT/PETITIONER:

             DR. THOMAS ABRAHAM
             AGED 73 YEARS, S/O T. G. ABRAHAM,
             THELLERATHU HOUSE, CHITTOOR MURI, PATHANAMTHITTA
             VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA
             DISTRICT, NOW RESIDING AT 100, BRIAR BRAE ROAD,
             STAMFORE CT, 06903, U.S.A, REPRESENTED BY HIS
             POWER OF ATTORNEY, AJITH GEORGE, AGED 48 YEARS,
             S/O T. A. GEORGE, THELLERATHU HOUSE, CHITTOOR
             MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK,
             PATHANAMTHITTA DISTRICT -, PIN - 689641

             BY ADVS.
             K.SHAJ
             BEENA N.KARTHA
             C.IJLAL
             RESHMA.P.
             JOSEPH MARY DAS
             ARUN CHAND
             VINAYAK G MENON
             BHARAT VIJAY P.
             MAJID MUHAMMED K.
             MINU VITTORRIA PAULSON
 RCREV.NO.46/2024 & 60/2023
                                3




RESPONDENT/APPELLANT/COUNTER - PETITIONER:

            AREEFABEEVI
            AGED 60 YEARS, W/O P. S. ASHRAFF,
            AMEEN MANZIL, VETTIPPURAM,
            PATHANAMTHITTA VILLAGE, PATHANAMTHITTA DISTRICT -
            689641 (PROPRIETOR, ALANKAR HYPER MARKET, T. K.
            ROAD, PATHANAMTHITTA)

            BY ADVS.
            MANU RAMACHANDRAN
            M.KIRANLAL(K/963/2009)
            R.RAJESH (VARKALA)(K/78/2000)
            T.S.SARATH(K/257/2012)
            SAMEER M NAIR(K/000481/2017)
            SAILAKSHMI MENON(K/1518/2021)
            JOTHISHA K.A.(K/123/2022)
            SHIFANA M.(K/000936/2023)




     THIS    RENT   CONTROL   REVISION   HAVING   COME   UP   FOR
ADMISSION    ON 28.05.2024,   ALONG WITH    RCRev..46/2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RCREV.NO.46/2024 & 60/2023
                              4



                           ORDER

[RCRev. Nos.46/2024, 60/2023]

Amit Rawal, J.

1. This order of ours shall dispose of two revision

petitions ie., RC. Rev.46/2024 titled as Areefa Beevi v.

Dr.Thomas Abrhaham on behalf of the tenant and RC.

Rev.No.60/2023 titled as Dr.Thomas Abraham v. Areefa Beevi

on behalf of the landlord, aggrieved of the order of the

Appellate Authority passed in RCA No.9/2019.

2. Succinctly the facts in briefs are that Dr.Thomas

Abraham is the landlord and Areefa Beevi is the tenant.

Landlord sought the indulgence of the Rent Controller for

fixation of the fair rent on the premise that the tenant is

running a super market under the name and style 'Alankar

Hyper MArket' and the rent fixed at the time of tenancy was

Rs.30,000/- (Rupees thirty thousand only). The premises

consisted of three storied building having an area of 8690 Sq.

Ft.

3. Tenant contested the aforementioned petition and RCREV.NO.46/2024 & 60/2023

opposed that the pleadings of the landlord were wanting for

the reliance of certain lease deeds of premises had more

amenities than the one in question. Learned Rent Controller

framed the following issues:

1. Whether the petitioner/landlord is entitled to get

an order for refixation of rent of the petition schedule

building as prayed for ?

2. Whether the impugned order of the Rent

Controller is liable to be set aside ?

3. Reliefs and Costs ?

4. Both the parties brought on record the following

documents and examined the witnesses:

Exhibits marked for Petitioner:

A1 - 30.03.2016 - Notice issued by the petitioner A2 - 01.02.2017 - Letter of information about rental agreement.

A3 - 14.08.2015 - Letter of information about rental agreement.

A4 - 18.08.2017 - Rental lease agreement. A5 - 01.02.2019 - Certified copy of lease deed No775/2014 of SRO, Pathanamthitta.

A6 - 17.04.2017 - Lease agreement No.804/1/2017 of RCREV.NO.46/2024 & 60/2023

SRO, Pathanamthitta A7 -12.03.2015 - Lease deed No.633/2015 of SRO, Pathanamthitta.

A8 - 15.05.2018 - Lease Agreement No.1266/2018 of SRO, Pathanamthitta.

Exhibits marked for Respondent B1 - 25.02.2019 - Power of attorney executed by the respondent.

Court Exhibit X1 - 25.05.2019 - True copy of renewed list of land tax assessment issued from Municipality, Pathanathitta.

Witness examined for petitioner PW1 - 05.02.2019- Thomas Abraham Witness examined for Respondent RW1 - 06.03.2019 - A.K.Muhammed Basheer. RW2 - 25.05.2019 - K.R.Manojkumar.

5. After analysis of the documents on record, learned

Rent Controller fixed the rent of the building at Rs.30/- per

Sq. Ft. of the ground floor ie.,4890 Sq. Ft. and Rs.25/- per

Sq. Ft. of second floor measuring 3800 Sq. Ft. Aggrieved of

the same tenant preferred the appeal.

6. Learned Appellate Authority ignored Ext.A8 lease RCREV.NO.46/2024 & 60/2023

Agreement of 15.05.2018 bearing No.1266/2018 as it was of

a period post institution of the rent petition and by taking the

average, fixed the rent of the premises at Rs.12.81 per Sq.

Ft. of both the premises ie., the entire area measuring 8690

Sq. Ft.. It is in that background two revision petitions have

been preferred.

7. Mr.Manu Ramachandran, learned counsel appearing

on behalf of the tenant in support of RCR No.46 of 2024

submitted that Lower Appellate Court has committed illegality

and perversity for, the lease deed emphatically relied upon by

the tenant for fixation of fair rent could not have been applied

to the case in hand for the reason that the amenities provided

to the tenant were much less than the one referred to in the

lease deeds. All these lease deeds except Ext.A5 are post

institution of the rent petition. Even Ext.A5 of 2014 if taken

into consideration would reveal that the tenant was provided

more amenities than the one available to the tenant. At the

best rent would be around Rs.8/- per Sq. Ft.

8. Another contention raised is that fair rent has to be RCREV.NO.46/2024 & 60/2023

fixed from the date of the judgment and not from the

institution of petition. In support of the contention relied upon

the judgment of this court in Thomas M.Joshu v. Church of

South India Trust Association [2019 (3) KHC 316].

9. On the other hand, Mr.K.Shaj countered the

argument and submitted that the judgment would not be

applicable to the facts and circumstances of the case as it was

a case were the landlord during the pendency of the rent

petition had brought on record the lease deed and therefore

this Court had taken the departure from the rule of fixing the

fair rent instead of from the date of petition to the date of

judgment. It was further contended that the fair rent

reflected in Ext.A5 is Rs.24/-. All the lease deeds have been

tendered without any objection and therefore, cannot be

ignored for the adjudication of the controversy in issue and

prayed for modification of the order of the Appellate

Authority.

10. We have heard the learned counsel for the parties

and appraised the paper books.

RCREV.NO.46/2024 & 60/2023

11. In the appendix Ext.A5 has been referred to as

dated 01.02.2019 which in fact is the date of issuance of the

certified copy of lease deed whereas actual lease deed is of

15.03.2014. This fact has not been disputed by the learned

counsel representing the landlord. Ext.A7 is of 12.03.2015. In

both the aforementioned lease deeds, fair rent is not less

than Rs.32/- and Rs.25/- per Sq. Ft. of both the portions

referred to above as determined by the Rent Controller. Be

that as it may, the Rent Controller did not examine the

contents of the lease agreement to compare with the

amenities vis-a-vis the premises in dispute and documents

referred above whereas, Appellate Authority ignored all the

documents, particularly Ext.A8 which is of 2018 and found

that Exts.A5 to A7 cannot be taken into account to fix the fair

rent of the schedule building as it had more amenities and

facilities.

12. For the sake of brevity, findings of the Appellate

Authority recorded in paragraph 28 and 31 reads asunder:

28. According to the respondent his brother Dr. T.A. George owns a commercial building just 50 meters on the RCREV.NO.46/2024 & 60/2023

western side of the petition schedule building. According to the respondent as per Ext A5 registered lease deed dated 15.3.2014 SBI Pathanamthitta Branch took an area of 6150 sq.feet in the ground floor of the said building and its monthly rent was Rs.24 per sq.feet. According to the respondent as per Ext A6 registered lease deed dated 17.4.2017 M/s ICICI Predential Life Insurance Co.Ltd took an area of 1385 sq. feet in the 2nd floor of the building on monthly rent at the rate of Rs.16 per sq.feet. According to the respondent as per Ext A7 lease deed dated 12.3.2015 another tenant took an area of 2800 sq.feet in the 2nd floor of the same building on monthly rent at the rate of Rs.23.17 per sq.feet. According to the respondent as per Ext A8 lease deed dated 15.5.2018 M/S Reliance Cooperate IT Park took an area of 7032 sq.feet in a building owned by one Raju.K.Varghese near to the petition schedule building for a monthly rent of 3,79,728 which is at the rate of Rs.54 per sq.feet. The evidence of PW1 indicate that the building owned by his brother is having road frontage through out the entire building with having more parking facility than the petition schedule building. The evidence of PW1 indicate that there is no sufficient parking area for the entire building including the petition schedule building. As the tenanted premises referred in Ext.A5 to A7 rent deed are having more amenities and facilities than the petition schedule building, I am of the view that Ext A5 to A7 rent deed cannot be taken into account to fix fair rent of the petition schedule building. Since the exact location and facilities and amenities available to the tenanted premises referred in Ext A8 rent deed is not forthcoming in the evidence, I am of the view that Ext A8 also cannot be taken into account to fix fair rent of the petition schedule building.

RCREV.NO.46/2024 & 60/2023

31. As per the impugned order the Rent Control Court fixed fair rent of the petition schedule building at the rate of Rs. 30/- per sq. feet for the area of ground floor having 4890 sq. feet and Rs. 25/-per sq. feet for the area of 2 floor having 3800 sq.feet. On going through the entire available evidence I am of the view that the fair rent fixed by the Rent Control Court is not reasonable but exorbitant. Hence I am of the view that fair rent of the petition schedule building is to be reduced and re-fixed. By taking into account Ext A4 rent deed and considering the commercial importance of the locality and all other factors including the amenities and facilities available to the petition schedule building, I am of the view that the fair rent of the petition schedule building can be fixed at the rate of Rs.15/- per sq feet for the ground floor having area of 4890 sq.feet and Rs.10/- per sq.feet for the 2nd floor having area of 3800 sq.feet. The points are answered accordingly."

13. It is a matter of record that the High Court while

examining the judgments of Courts below cannot re-

appreciate the evidence but can interfere only if there is

apparent perversity. The fair rent fixed by the Appellate

Authority, in our considered view, is based on rationale,

documents and appears to be justified and do not call for any

interference.

14. The ratio decidendi culled out in the judgment

(supra) would not be applicable for, this Court had taken a RCREV.NO.46/2024 & 60/2023

departure from the settled principle on the point that the

landlord had brought on the lease deed executed after the

institution of the petition. On perusal of the extracted portion