Telangana High Court

M/S. Tirumala Estates vs S. Vijayashree on 7 July, 2022

Bench: P.Sree Sudha

           HON'BLE SMT. JUSTICE P.SREE SUDHA

         CIVIL REVISION PETITION No.1325 of 2021

                           ORDER

1. This revision petition is filed by M/s.Tirumala Estates

represented by its Managing Partner Mr.T.Madan Mohan

against S.Vijayashree and S.Sai Geeta, represented by her

power of Attorney S.Jayalakshmi, W/o. Late N.S.Sundra

Murthy, against the judgment dated 22.03.2021 passed in

R.C.A.No.118 of 2019 on the file of the learned Chief Judge, City

Small Causes Court, Hyderabad, whereby the order dated

24.07.2019 passed in R.C.No.71 of 2015 on the file of the

learned IV Additional Rent Controller, City Small Causes Court,

Hyderabad, was set aside and the matter was remanded back to

the trial Court for considering the issue of fixing fair rent in

accordance with law.

2. For the sake of convenience, the parties hereinafter are

referred to as landladies and tenant. The petitioner herein is the

tenant and the respondents herein are the landladies.

3. Learned counsel for the tenant would contend that the

landladies herein have jointly instituted fixation of fair rent

application in R.C.No.71 of 2015 from Rs.1,800/- to

Rs.27,120/- with an escalation of 20% for every two years. The

said application is filed in respect of Premises No.34-B, First

Floor, Raghava Ratna Towers, Chirag Ali Lane, Hyderabad. The

tenant would further contend that there is no jural relationship

between the parties and they are residing Premises No.35, First

Floor, Raghavaratna Towers, Chirag Ali Lane, Hyderabad. The

trial Court dismissed the application by observing that the

petitioner herein is a tenant of Premises No.35 but not in

respect of Premises No.34-B and there is no jural relationship

between the parties. Aggrieved by the same, the landladies filed

an appeal viz., R.C.A.No.118 of 2019 before the learned Chief

Judge, City Small Causes Court, Hyderabad, and the Appellate

Court allowed the appeal and remanded the matter to the trial

Court for fixation of the rent of the property. Learned counsel

would also assert that the area of property is 250 square feet

but not 339 square feet and that there is a lease agreement

dated 26.04.2007 and the tenant paid Rs.12,000/- towards

interest fee deposit, but it was suppressed by the landladies. He

would also state that the premises is in a dilapidated condition,

which was constructed about fifty years back and the tenant

incurred Rs.2,50,000/- for renovating the same and he has

been maintaining the property at his cost. The premises is

located in a lane but not in Abids and the entire market of the

Abids was shifted to different places. Learned counsel would

mainly dispute the GPAs executed by the landladies in favour of

their mother under Ex.P1. He would also submit that the trial

Court under mistaken impression held that the sale deed shows

an area of the property is 339 square feet which is inclusive of

common area though the carpet area of the premises is only 250

square feet. He would also contend that the appellate Court is

not empowered to remand the matter for fixing the fair rent as

per Section 20(3) read with Section 121(2) of Rent Control Act,

and thus, the judgment is liable to be set aside.

4. R.C.No.71 of 2015 is filed by the daughters of

Mr.N.S.Sundara Murthy against Tirumala Estates for fixing the

rent from Rs.1,800/- to Rs.27,120/- per month and also

progressive enhancement of 20% for every two years on the

existing rent. The landladies would assert that the petition

schedule property is part and parcel of office bearing No.34-B,

I Floor, admeasuring 339 square feet situated at Raghava Ratna

Towers, Chirag Ali Lane, Hyderabad. The landladies stated that

the petitioner is a tenant in the premises bearing No.35, First

Floor, Raghava Ratna Towers, Chirag Ali Lane, Hyderabad. He

filed suit in O.S.No.919 of 2014 seeking for permanent

injunction against the landladies and that they are also

contesting the same. There is jural relationship between them

as landlord and tenant and the said Court has no jurisdiction.

5. The landladies were examined as P.Ws.1 and 2 and

marked Exs.P1 to P3 on their behalf. There is no oral evidence

adduced on behalf of the tenant. However, during the cross-

examination of P.Ws.1 and 2, Exs.R1 to R5 were marked.

6. The trial Court after considering the arguments of the

landladies regarding variation in the premises bearing No.34-B

and Premises bearing No.35 held that there is no jural

relationship between the parties. In a sale deed filed by the

landladies under Ex.P3 the premises bearing number was

shown as 34-B with a built up area of 339 square feet but in the

lease deed entered into between the parties it was mentioned as

premises bearing No.35, First Floor, Raghava Ratna Towers. As

such, taking advantage of the same, the tenant filed O.S.No.919

of 2014 by mentioning the premises bearing No.35 and also filed

Ex.R4 telephone bills and account summary in which the said

premises number was reflected. As the trial Court held that

there is no jural relationship, the fair rent was not fixed and

petition was dismissed. Aggrieved by the same, an appeal was

preferred by the landladies before the learned Chief Judge in

R.C.A.No.118 of 2019. The appellate Court considered the

variation between the sale deed and lease deed and mischief of

the tenant showing the premises No.35 instead of 34-B

discussed all the facts and held that landladies are having only

one premises and as such it cannot be said that they let out

another premises to the tenant. Moreover, admittedly the tenant

was depositing the amounts in the account of the landladies,

and as such, there is no dispute regarding identity of the

property and the trial Court erroneously held that there is no

jural relationship between the parties and accordingly allowed

the appeal to that extent. In so far as the extent of the leased

premises raised by the tenant stating that he is in occupation of

250 square feet but not in an extent of 339 square feet, it was

held that as per the sale deed the extent was 339 square feet

and the entire premises was let out to him and he was using

only 250 square feet and as such he cannot raise dispute

regarding the extent of the premises. It was also held that when

the boundaries of the office premises bearing No.34-B

admeasuring 339 square feet was also extracted from the sale

deed and they are in consonance with the boundaries

mentioned in O.S.No.91`9 of 2014. It was also observed that the

lease agreement Ex.R1 does not contain boundaries of the

property. Moreover, the sale deed prevails over the lease deed.

Ex.P3 is the certified copy of sale deed dated 01.03.1995 vide

document No.843 of 1995. It is an authenticated document to

prove the ownership of the landladies over the petition schedule

premises and it has greater evidential value than the lease deed.

The lease deed dated 26.04.2007 in which no schedule was

mentioned was expired in the year 2010 and it cannot carry

much evidentiary value to prove the identity of the premises. It

was also observed that any landlord cannot file any rent control

case against the tenant for wrong premises when such an

exercise would not achieve any purpose. Only basing on the

error mentioned in the lease agreement as premises 35, the

tenant taken advantage and also filed civil suit in O.S.No.919 of

2014 as a counterblast to the rent control case and he was

regularly paying Rs.1,800/- per month. The lease agreement is

renewable after three years and it was continued up to 2010

and as such set aside the order of the Rent Controller passed in

R.C.No.71 of 2015 dated 24.07.2019 and remanded the matter

for fixing a fair rent in accordance with law.

7. Learned counsel for the tenant relied upon several

citations and argued that the appellate Court has no power to

remand the matter. He relied upon a case law reported in

KONDURU AMMANNACHARI V/s. RAHIMA KHATOON1 in

which it was held as follows:

'17. A reading of this provision makes it clear that the appellate authority should dispose of the appeal after hearing both the parties. If the appellate authority feels it necessary that further enquiry is necessary, the appellate authority itself should hold enquiry after giving an opportunity to both the parties or direct the rent controller to do the same. The appellate authority should dispose of the appeal on the basis of its own enquiry, if it holds enquiry by itself or on the basis of the findings given by the Rent controller if it direct the Rent Controller to held enquiry. Thus it is clear that Section 20(3) of the Act does not contemplate for remand. On the other hand, Section 20(3) of the Act requires the Appellate Authority to follow the two courses viz. (1) the appellate authority should hold further enquiry, if it (feels necessary or (2) the appellate authority should direct the rent controller o hold enquiry and submit his findings on the point or points and there after the appellate authority should dispose of the appeal. As to which course the appellate authority should follow between the two courses provided in Section 20(3) of the Act, it is entirely left to the discretion of the appellate authority and Section 20(C) of the Act does not fetter the discretion of the appellate authority in any way. If further evidence is not necessary and the evidence is already available on record and it is sufficient to dispose of the points involved in the appeal, the appellate authority can itself dispose of the appeal. In as much as the Appellate Authority has to order further enquiry, which is either to be done personally or through the Rent controlley it is

MANU/AP/0344/1984

implicit that the appeal should be kept pending all the time before the appellate authority. As the language of Sec. 20(3) of the Act is unambiguous, any order of remand passed by the appellate authority is contrary to Sec. 20(3) of the Act and is, therefore, illegal.'.

Learned counsel further submitted that the order of

appellate Court remanding the case to the Rent Controller is not

a nullity but the order passed is in an irregular exercise of the

power and the parties are at liberty to file revision against such

order of remand. For the said proposition learned counsel relied

upon a case law reported in MOHD. OSMAN V/s.

D.SHAKUNTALA BAIDIED2 in which it was held as follows:

'... the provision for periodical enhancement of rent at 10% for every two years on the existing rent from the date of filing of the R.C. granted by the appellate authority is not proper since any enhancement can be directed under Section 5 of the Act only if there is any addition, improvement or alteration carried out at the instance of the respondents at the request of the petitioner..'

Learned counsel also relied upon a case law reported in

OMPRAKASH MALATKAR V/s. KISHAN BAI PORWAL3 in

which it was held as follows:

'19. ...The periodical enhancement cannot be a guessing work unless there is concrete evidence to that effect. Situation would have been different if the landlady was able to adduce any

MANU/TL/0425/2019

MANU/TL/0583/2021

evidence to prove periodical enhancement in the vicinity. There was no evidence, as pointed above, to prove the prevailing rent of the similarly situated shops. On the basis of the commercial lease, the learned Rent Controller fixed the rent at Rs.5,000/- per month but periodical enhancement is altogether a different aspect and factors for such periodical enhancement differ from place to place and also depend on the nature of business carried on in the tenanted property.'

8. Learned counsel for the landladies relied upon a case law

reported in SHAIK BANDAGI SAHEB V/s. SHAIK NURULLA

SAHEB4 holding to the following effect:

'Sub-Section (3) of Section 20 of the Act is relevant for the purpose. The language of Sub-section (3) is quite clear, precise, unambiguous and it does not admit more than one meaning. The Appellate Authority is armed with the power to inquire as he thinks fit either personally or through the Rent Controller if the facts and circumstances of a case warrant him to do so in his discretion. From the provisions of Sub-Section (3) it cannot be deduced that the power of the Appellate Authority to remand the proceedings to the Rent Controller is ousted.'

9. The powers of the Appellate Court under Section 20(3) of

the Rent Control Act are akin to the powers of the Appellate

Court under Section 107 CPC, which reads as follows:

'Powers of Appellate Court: - (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power -


    MANU/AP/0657/1997





            (a)    to determine a case finally;

            (b)    to remand a case;

            (c)    to frame issues and refer them for trial;

            (d)    to take additional evidence or to require such
                   evidence to be taken.

(2) Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.'

10. In the facts on hand, the trial Court held that there is no

jural relationship between the parties and accordingly dismissed

the application and as such the landladies preferred an appeal

and the Appellate Court after considering various aspects,

allowed the appeal, but for fixing the fair rent remanded the

matter to the trial Court. For fixing the fair rent the trial Court

should consider the market value of the building on the date of

letting the premises, prevailing rentals in the locality as on the

date of letting, age of construction, latest assessment of the

building or other circumstances and as such, the Appellate

Court rightly remanded the matter to the trial Court for

considering the above aspects and fixing the fair rent by duly

giving opportunity to both the parties to adduce evidence.