[Cites 9, Cited by 0]
Kerala High Court
Rajaratnam vs Fathima Rizwana on 27 March, 2026
RCR No. 320 of 2025
-1-
2026:KER:27594
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 27TH DAY OF MARCH 2026 / 6TH CHAITHRA, 1948
RCREV. NO. 320 OF 2025
AGAINST THE JUDGMENT DATED 23.09.2025 IN RCA NO.9 OF
2024 OF APPELLATE AUTHORITY (LR), PALAKKAD ARISING OUT OF
THE JUDGMENT DATED 24.01.2024 IN RCP NO.23 OF 2016 OF
ADDITIONAL MUNSIFF COURT, PALAKKAD
REVISION PETITIONER/S:
1 RAJARATNAM
AGED 82 YEARS
W/O LATE MANI, BABU NIVAS, KARNAKI NAGAR,
VADAKKANTHARA, PALAKKAD DISTRICT, PIN - 678012
2 BOSE PRASAD
AGED 47 YEARS
S/O LATE MANI, BABU NIVAS, KARNAKI NAGAR,
VADAKKANTHARA, PALAKKAD DISTRICT, PIN - 678012
3 SASIKUMAR
AGED 44 YEARS
S/O LATE MANI, BABU NIVAS, KARNAKI NAGAR,
VADAKKANTHARA, PALAKKAD DISTRICT, PIN - 678012
BY ADVS.
SRI.HARISH GOPINATH
SMT.SURUMI NAZAR
RESPONDENT/S:
RCR No. 320 of 2025
-2-
2026:KER:27594
FATHIMA RIZWANA
AGED 40 YEARS
W/O. BINU M BASHEER, 11/883, RIZWANA MANZIL, M.A
LANE, T.B ROAD, KOPPAM, PALAKKAD, PIN - 678001
BY ADV SHRI.S.ABDUL RAZZAK
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 27.03.2026, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RCR No. 320 of 2025
-3-
2026:KER:27594
ORDER
Dated this the 27th day of March, 2026
Soumen Sen, C. J.
Heard Mr. Harish Gopinath, learned counsel for the
petitioners and Mr. S. Abdul Razzak, learned counsel for the
respondent.
2. The Appellate Authority, while considering the appeal
preferred by the present petitioners/tenants against the order
in RCP No. 23 of 2016 fixing the fair rent at ₹25/- per sq. ft.
per month with effect from the date of the petition, i.e.,
19.05.1996, accepted the objections raised and dismissed the
appeal preferred by the tenants. However, the order of the
Rent Control Appellate Authority was set aside by a
Coordinate Bench on 14.07.2025 after extensively referring to
the decision in Edger Ferus v. Abraham Ittycheria1 affirmed
1 2004(1) KLT 767
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by the Hon'ble Supreme Court in 2009 (4) KLT 673 SC.
3. In order to appreciate the order passed by the
Coordinate Bench on remand, it is necessary to refer to the
following paragraphs of the order of remand 14.07.2025:-
"4. The learned counsel for the
respondents/tenants argued that the landlord has not
succeeded in adducing evidence to prove the criteria
mentioned in the decision of this Court in Edger Ferus
v. Abraham Ittycheria [2004 (1) KLT 767] and
therefore, there is no illegality or impropriety in the
order of the appellate authority warranting
interference in revision.
5. There is no dispute regarding the landlord-
tenant relationship and the fact that the tenant is
paying monthly rent at the rate of Rs.1,200/- from
05.10.2001 onwards. Before the Rent Control Court,
the landlady is examined as PW1 and the report and
the sketch filed by the Advocate Commissioner are
marked as Exhibits C1 and C1(a). The main contention
of the tenant is that the petition schedule building is
an old building and the landlady has not effected any
repair.
6. In Edger Ferus (supra), it was held that while
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fixing fair rent, the Rent Control Court could take note
of factors such as (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 or fresh
imposition of municipal taxes etc.
7. In Mohammad Ahmad v. Atma Ram
Chauhan [(2011) 7 SCC 755], the Honourable
Supreme Court has laid down the following guidelines
to fix fair rent so as to reduce unnecessary rent control
litigation and to mitigate the injustice caused to the
landlord:
(i) The tenant must enhance the rent according
to the terms of the agreement or at least by ten per
cent, after every three years and enhanced rent
should then be made payable to the landlord. If
the rent is too low (in comparison to market rent),
having been fixed almost 20 to 25 years back then
the present market rate should be worked out
either on the basis of valuation report or reliable
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estimates of building rentals in the surrounding
areas, let out on rent recently.
(ii) Apart from the rental, property tax, water
tax, maintenance charges, electricity charges for
the actual consumption of the tenanted premises
and for common area shall be payable by the
tenant only so that the landlord gets the actual
rent out of which nothing would be deductible. In
case there is enhancement in property tax, water
tax or maintenance charges, electricity charges
then the same shall also be borne by the tenant
only.
(iii) The usual maintenance of the premises,
except major repairs would be carried out by the
tenant only and the same would not be
reimbursable by the landlord.
(iv) But if any major repairs are required to be
carried out then in that case only after obtaining
permission from the landlord in writing, the same
shall be carried out and modalities with regard to
adjustment of the amount spent thereon, would
have to be worked out between the parties.
(v) If the present and prevalent 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 against such a
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tenant at least for a period of 5 years. Thus for a
period of 5 years the tenant shall enjoy immunity
from being evicted from the premises.
(vi) The parties shall be at liberty to get the
rental fixed by the official valuer or by any other
agency, having expertise in the matter.
(vii) The rent so fixed should be just, proper
and adequate, keeping in mind the location, type
of construction, accessibility to the main road,
parking space facilities available therein, etc. Care
ought to be taken that it does not end up being a
bonanza for the landlord.
8. Section 5 (1) of the Kerala Buildings (Lease and
Rent Control) Act, 1965 reads thus:
"Determination of fair rent:--(1) The Rent
Control Court shall, on application of the
tenant or landlord of a building, fix the fair
rent for such building after holding such
enquiry as it thinks fit."
9. The above provision shows that the Rent
Control Court can fix fair rent on application by the
landlord or the tenant. The impugned order of the Rent
Control Appellate Authority dismissing the Rent
Control Petition seeking fixation fair rent by allowing
the appeal has the effect of approving Rs.1,200/- as
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monthly rent, fixed during 2001 as fair rent for the
petition schedule building even after the lapse of
several years. 10. It is well settled that the fair rent
has to be understood as a rent a willing tenant would
pay to a willing landlord, for a building commensurate
with the rent prevalent in the locality and the nature
and the location of the building and we find that the
appellate authority failed to appreciate the evidence as
per the guidelines in Edger Ferus (supra) and
Mohammad Ahmad (supra) leading to a flagrant
miscarriage of justice warranting exercise of revisional
jurisdiction. A petition seeking fixation of fair rent can
generally be dismissed only after recording findings
on what the fair rent ought to be, unless there are
other valid reasons for dismissal based on legal or
procedural grounds. We find that the impugned order
of the appellate authority is liable to be set aside and
the matter is to be remitted to the appellate authority
for a fresh decision on merit."
4. It was under such circumstances, that the matter
was remanded to the appellate authority for fresh decision on
merits. In view of the affirmation of the order passed in Edgar
Ferus (supra) by this Court, the considerations for fixation of
fair rent should be guided by the principles and factors
mentioned in the said judgment reiterated in paragraph 6 of
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the order dated 14.07.2025 (Fatima Rizwan v. Rajaratnam
and Others)
5. It appears that on remand, PW1 was again examined
and Exts. A10 and A11 were marked. Ext. 10 is a rent deed
entered into by the petitioner with Haseena dated
26.11.2022 and Ext. A11 is a rent deed dated 02.01.2023
entered into by the petitioner with one Prasad who is the son
of the respondent in RCP No. 22 of 2016. These documents
were relied upon in the said proceeding by the landlord to
show the prevailing rate of rent. However, the landlord did
not examine any other tenants or produce any evidence to
show that the rooms are of similar facility. The said
documents in our view have been rightly rejected by the first
appellate court in deciding the said appeal.
6. Thereafter, the landlord has taken out another
Commission as the report of the earlier Commissioner was
rejected. This time, the Advocate Commissioner has filed
Exts. C2 and C2(a). The report of the Advocate Commissioner
at page 3 would show that there are seven shop rooms
including the petition scheduled shop room in the building.
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The Commissioner had measured and inspected the said
seven shop rooms and in the said report in page 4 had
referred to the area and monthly rent realised from each shop
room. It appears that the said shop rooms are fetching rent of
Rs. 8,000/- to Rs. 21,525/-. The area in those rooms are
from 14.04 sq.m. to 26 sq.m. It appears from the evidence
that those rooms having similar accommodation and placed
at the same building having an extent smaller than that of
the petition schedule room, is fetching rent more than the fair
rent fixed for the petition schedule room.
7. The report of the said Advocate Commissioner is not
seen seriously disputed as it is clear both with regard to its
contents and conclusions arrived at from such inspection.
The first appellate court does not disbelieve the said fresh
report filed for considerations based on the guidelines issued
by the earlier Division Bench in the order dated 14.07.2025.
On consideration of the aforesaid, the first appellate court in
its order dated 24.01.2024 had held as follows:-
"32. Further there is no dispute as to the
importance of the locality. RW2 had admitted it.
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Further in Ext.C2 the commissioner had reported that
Palakkad town railway station, Palakkad town bus
stand, Municipal bus stand, and petrol pumps are of
walkable distance from the petition schedule room. It
is also pertinent to note that the respondents are still
carrying on their business even though they contend
that it is not profitable. Therefore, considering the
evidence on record the fair rent of the petition schedule
room can be safely fixed as Rs.25/- per sq. ft per
month from the date of the petition. Hence these points
are answered accordingly."
8. This order was again challenged by the tenants in
rent control appeal Nos. 11 and 12 of 2017. The said appeal
was dismissed on 20.12.2019 inter alia holding that in the
absence of clear evidence to prove that the rooms involved in
Exts. A4to A7 are same and similar, no reliance can be placed
on the same to fix the fair rent of the building. It was also
held that the landlord is also bound to prove that the rent
deeds are bonafide and genuine transactions by examining
the tenants. In paragraph 24 of the said order, the first
appellate authority discussing the report of the Commissioner
has held as follows:-
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"24. As stated above, in page 3 of the report the
commissioner has reported that some of the rooms in
the same building are rented out for a higher rent.
S.75 of CPC deals with the purposes to which a
Commission can be issued. The purposes are a) to
examine any person; b) to make a local investigation;
c) to examine or adjust accounts; d) to make a
partition; e) to hold a scientific, technical or expert
investigation; f) to conduct sale of property which is
subject to speedy and natural decay and which is in
the custody of the court pending the determination of
the suit; and g) to perform any ministerial act. The
commissioner cannot conduct a rowing enquiry about
the rent being paid for other rooms and that fact is to
be proved by adducing documentary evidence or by
examining the tenant before the court. The
commissioner can only report whether such rooms are
same and similar accommodations when compared to
the rooms in question. But she has not done so."
9. It also proceeded further to hold that the landlord
had failed to produce any evidence of existing rent of similar
rooms in the locality and the tenants were not examined. This
order was set aside by a Coordinate Division bench on
14.07.2025 in Fatima Rizwana (supra) mainly on the
ground that the appellate authority failed to appreciate the
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evidence as per the guidelines made in Mohammad Ahamad
v. Atma Ram Chauhan and Others2. The order in entirety
was set aside and remanded for fresh consideration. The
order passed upon such consideration is now under
challenge in this revision.
10. After remand, the appellate court after taking into
consideration the principles enunciated in Edgar Ferus
(supra) and Mohammad Ahmad (supra) affirmed the views of
the Rent Controller. The contention of the landlord that now
15 years have been elapsed and the circumstances have
considerably changed, leading the rent in the locality for shop
rooms like the scheduled property to be more than Rs.
20,000/- per month was duly noted. Further the increase in
cost of living, value and day to day expenses and the fact that
the value and business in the area has also increased rapidly
was also taken note of leading to conclude that the landlord
is entitled to get enhanced rent. The fair rent of the petition
schedule room is to be fixed at Rs. 20,000/-, found favoured
with by the appellate court. The reason for such finding of the
appellate court is discernable from the observations made in
2 (2011) 7 SCC 755
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the following paragraphs:-
"19. In order to determine the fair rent of the
petition schedule room, the petitioner is relying on the
oral evidence given by her as PW1 and Exts. A4 to A7,
A10 and A11 documents and Exts. C1 and C2, Cl(a)
and C2(a) rough sketch. Exts. A4 to A7 are the lease
deeds. Since Ext.A4 does not contain signatures of all
the executants, the Rent Control Court did not rely on
Ext.A4.
20. In the order dated 20.12.2019 of this
Appellate Authority, Exts.A5 to A7 lease deeds were
not taken into consideration since the tenants in
Exts.A5 to A7 were not examined to prove those
documents. Even though there was an observation in
the order dated 20.12.2019 of this Appellate Authority
that since the persons who executed the said lease
deeds are not examined to prove the documents,
Exts.A5 to A7 cannot be relied on, the petitioner has
not made any attempt to prove those documents by
examining the tenants. Though the petitioner produced
Ext. A10 and 11 documents after remand, she did not
prove Exts.A10 and A11 by examining the executants
of Exts.A10 and A11. So the Rent Control Court has
rightly declined to consider those documents as well.
21. The petitioner has not adduced any evidence
with regard to the present property tax of the petition
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schedule building, regarding the prevailing rate of rent
in the locality for similar rooms in similar
circumstances during the 12 months preceding the
letting. So also, she has not produced the rent
agreement in respect of similar shop rooms and
examined the landlord or tenant of the said rooms for
proving the prevailing rate of rent in the locality.
22. So the only evidence available for determining
the fair rent is the oral evidence given by PW1, the
petitioner and Exts.C1 and C2 commissioner's reports
and Exts.Cl(a) and C2(a) rough sketches prepared by
the - Advocate Commissioner. Ext.C2 commissioner's
report and Ext.C2(a) rough plan are submitted by the
Advocate Commissioner after the remand. In Ext.C2,
the Advocate Commissioner has stated that the total
area of the petition schedule shop room is 36.4 square
meters. In Ext.C2, the Advocate Commissioner has
stated that the petition schedule room is situated in a
RC building on the southern side of Market Road,
Palakkad, that the said building has 2 floors, that in
the ground floor there are 7 shop rooms including the
petition schedule rooms. The Advocate Commissioner
has inspected and measured the said 7 rooms and
has given the measurement of the shop rooms, the rent
paid by the respective tenants, nature of business
conducted and other particulars of the 5 shop rooms
out of 7 rooms excluding the petition schedule rooms.
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23. According to the Advocate Commissioner, the
total area of the room occupied by Sreekrishna Textiles
is 22.4 square meters and monthly rent is Rs.
21,525/-, F Planet occupies 22.4 square meters and
pays monthly rent of Rs. 21,000/-, C.S. Jewellery
occupies 17.25 square meters and pays monthly rent
of Rs. 8,000/-, Chippy furniture occupies 17.25 square
meters and pays monthly rent of Rs. 16,000/-, and
F.K.Stores occupies 14.04 square meters and pays
monthly rent of Rs. 12,075/-. The respondents have
not challenged Ext.C2 report of the Advocate
Commissioner.
24. With regard to the importance of the locality,
the Advocate Commissioner has reported in Ext.C2 at
page 5 that from Palakkad Town Railway Station to
reach the petition schedule properties the walking
distance is approximately 600 meters and by going in
vehicle distance is approximately 850 meters. From
Palakkad Town Bus stand to reach the petition
schedule shop rooms, the walking distance is
approximately 400 meters and by going in vehicle is
approximately 400 meters. From Palakkad Municipal
bus stand to reach the petition schedule building, the
walking distance is approximately 350 meters and by
going in vehicle distance is approximately 1 km. From
the near petrol pump of the petition schedule
properties to reach the petition schedule properties, the
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walking distance is approximately 150 meters and by
going in vehicle distance is approximately 150 meters.
The market road is starting from Shakunthala junction
and ends Melamuri junction. On both sides of the said
room there are several shop rooms and in those shop
rooms variety of businesses are conducting. So it is
clear that the petition schedule room is situated in an
important locality in Palakkad Town.
25. One of the guidelines laid down by the
Hon'ble Supreme Court in Mohammed Ahamed case
(Supra) is that the enhancement of the rent must be
based on the terms of the agreement or at least by
10% after every 3 years. In this case monthly rent of
Rs.1,200/-- is fixed as per the order in RCP
No.40/2014 and it was fixed as fair rent considering
the circumstance and situation prevailed in 2000-
2001. So when monthly rent is increased by at least
10% after every 3 years, it cannot be said that
quantum of fair rent fixed by the Rent Control Court as
fair rent is unreasonable or excessive. So there is no
illegality or infirmity in the impugned order and hence,
I find no reason to interfere."
11. The above findings, we note are based on proper
evidence and complying with the guidelines in Edgar Ferus
(supra) wherein the Division Bench of this Court had
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enunciated the following principles:-
"1. S.5(1) would remain in the statute book
enabling the Rent Control Court to fix fair rent.
2. The claim for payment of any premium by
way of pakidi in consideration of grant, renewal or
continuance of tenancy is immoral and opposed to
public and any agreement entered in to for payment or
receipt of pakidi in consideration of grant, renewal or
continuance of tenancy would be unlawful and cannot
be enforced through court of law in view for the
decision in Aboobacker's case reported in 2003 (3) KLT
1029.
3. The construction of buildings and letting
them out to the tenants would come within the ambit
of business under Art.19(1)(g) of the Constitution of
India and hence is a fundamental right. Total
prohibition in claiming enhanced rent would amount to
unreasonable restriction and also would be violative of
the fundamental rights of the landlords guaranteed
under Art.21 of the Constitution of India.
4. S.116 of the Transfer of Property Act, if has
the effects of imposing any restriction in revision of
rent it would amount to unreasonable restriction
affecting the fundamental rights guaranteed under
Art.19(1)(g) and to the extent of its inconsistency the
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said provision would be void under Art.13(1) of the
Constitution of the India so far as fixation of rent is
concerned.
5. The judgment in John Zacharias case,
(1987 (1) KLT 156), holding that even beyond the
period originally stipulated, till evicted under S.11 of
the Kerala Buildings (Lease and Rent Control) Act only
the agreed rent alone is payable by the tenant is not
good law and to that extent it stands overruled.
6. Landlord or the tenant as the case may be,
can approach the Rent Control Court for revision of
rent quinquennially. Even if there is no provision for
periodical revision of the rent in the rent deed even
then the landlord can approach the Rent Control Court
for revision of rent. We hold that the plea of continuous
occupation by holding over or the protection as
statutory tenant since those rights are subservient to
the fundamental rights guaranteed to the landlord
under Art.19(1)(g) and 21 of the Constitution of India.
7. Rent Control Court while fixing fair rent
could take note of the inflation and resultant reduction
in the purchasing power of money, variations in the
cost of living index in the area since commencement of
the lease, demand for accommodation and availability
of the buildings in the locality.
8. The cost of construction of the building
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including cost of labour and building materials, capital
value of the entire premises in the enjoyment of the
tenant inclusive of the value of the land under the
actual enjoyment of the tenant whether immediately
appurtenant to the building or otherwise, type of
construction, locational importance, situations of the
tenanted premises, ground floor, first floor etc. and
other advantages and amenities, such as access to
places of public importance like bus stand, railway
station, educational institution, hospitals etc. would
also be guiding factors.
9. The Rent Control Court will also take into
consideration the prevailing rent in the locality for the
same and similar accommodation. The type of
construction, the amenities, general or special
provided in the building, the open land attached to the
building, whether residential or non residential are
also to be borne in mind.
10. Annual rental value of the building at the
time of filing the application for fair rent may also be
taken as a guiding factor along with others.
11. Revision or fresh imposition of municipal taxes,
cess, rate in respect of other increase in the charge of
electricity or water consumption by the tenant and
also by the landlord and increase on account of
sufficient repairs would also be taken note
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of by the Rent Control Court.
12. The Rent Control Court can while
resolving any rent control dispute on a application
either by the landlord or tenant examine whether the
rent is static and requires revision and fix fair rent
accordingly permitting the parties to adduce evidence."
12. It is also relevant to note that in Mohammed
Ahamed (supra), the Hon'ble Supreme Court has held as
follows:-
"21. According to our considered view
majority of these cases are filed because landlords
do not get reasonable rent akin to market rent, then
on one ground or the other litigation is initiated. So
before saying omega, we deem it our duty and
obligation to fix some guidelines and norms for
such type of litigation, so as to minimise landlord -
tenant litigation at all levels. These are as follows: -
(i) The tenant must enhance the rent
according to the terms of the agreement or at least
by ten percent, after every three years and
enhanced rent should then be made payable to the
landlord. If the rent is too low (in comparison to
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market rent), having been fixed almost 20 to 25
years back then the present market rate should be
worked out either on the basis of valuation report
or reliable estimates of building rentals in the
surrounding areas, let out on rent recently.
(ii) Apart from the rental, property tax,
water tax, maintenance charges, electricity charges
for the actual consumption of the tenanted
premises and for common area shall be payable by
the tenant only so that the landlord gets the actual
rent out of which nothing would be deductible. In
case there is enhancement in property tax, water
tax or maintenance charges, electricity charges
then the same shall also be borne by the tenant
only.
(iii) The usual maintenance of the premises,
except major repairs would be carried out by the
tenant only and the same would not be
reimbursable by the landlord.
(iv) But if any major repairs are required to
be carried out then in that case only after obtaining
permission from the landlord in writing, the same
shall be carried out and modalities with regard to
adjustment of the amount spent thereon, would
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have to be worked out between the parties.
(v) If present and prevalent market rent
assessed and fixed between the parties is paid by
the tenant then landlord shall not be entitled to
bring any action for his eviction against such a
tenant at least for a period of 5 years. Thus for a
period of 5 years the tenant shall enjoy immunity
from being evicted from the premises.
(vi) The parties shall be at liberty to get the
rental fixed by the official valuer or by any other
agency, having expertise in the matter.
(vii) The rent so fixed should be just, proper
and adequate, keeping in mind, location, type of
construction, accessibility with the main road,
parking space facilities available therein etc. Care
ought to be taken that it does not end up being a
bonanza for the landlord."
13. Applying the aforesaid principles to the facts and
circumstances of the case and upon a consideration of the
evidence on record, we are of the view that no interference is
warranted with the fixation of fair rent as determined by the
Rent Controller and affirmed by the Appellate Authority.
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14. The revision petition is accordingly disposed of.
Sd/-
SOUMEN SEN
CHIEF JUSTICE
Sd/-
SYAM KUMAR V. M.
JUDGE
Eb
