Ajith Kumar v Thoppayil Imbichaminabi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 14[TH] DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943** **R.C.REV. NO.31 OF 2021** **(AGAINST THE COMMON JUDGMENT DATED 16.10.2019 IN RCA 70/2018 OF RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL DISTRICT JUDGE) KOZHIKODE IN ORDER DATED 29.01.2018 IN RCP 191/2012 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF II), KOZHIKODE)** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **AJITH KUMAR,AGED 48 YEARS, S/O N DAMODARAN, ASSNO.20/2362, EDAVANNA PARAMBA,EAST SIDE OF RAILWAY TRACK, PANNIYANKARA AMSOM AND DESOM, P.O.MEENCHANTHA, KOZHIKODE TALUK, KOZHIKODE-673018.** **BY ADV. CIBI THOMAS K** ## **RESPONDENT/RESPONDENT/PETITIONER:** **THOPPAYIL IMBICHAMINABI, AGED 81 YEARS D/O K V MAMUKOYA HAJI,SWASTHAM, 14/818, SANTHOSH MAHAL, P O KALLAI, NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, MUHAMMED ARIF, AGED 54 YEARS, PUTHIYAPURAYIL, KARANI VEEDU, BUSINESS, NAGARAM AMSOM AND DESOM SHAMYANA, P O KALLAI,KOZHIKODE TALUK, KOZHIKODE-673003.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14.09.2021 ALONG WITH R.C.REV. NO. 32 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.REV. NOs.31 & 32 OF 2021 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE K. BABU TUESDAY, THE 14[TH] DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943** **R.C.REV. NO.32 OF 2021** **(AGAINST THE COMMON JUDGMENT DATED 16.10.2019 IN RCA 152/2018 OF RENT CONTROL APPELLATE AUTHORITY (II ADDITIONAL DISTRICT JUDGE) KOZHIKODE IN ORDER DATED 29.1.2018 IN RCP 191/2012 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF- II), KOZHIKODE) REVISION PETITIONER/RESPONDENT:** **AJITH KUMAR, AGED 48 YEARS S/O.N.DAMODARAN, ASS NO.20/2362, EDAVANNA PARAMBA, EAST SIDE OF RALIWAY TRACK, PANNIYANKARA AMSOM AND DESOM, P.O. MEENCHANTHA, KOZHIKODE TALUK, KOZHIKODE 673 018.** **BY ADV. CIBI THOMAS** ## **RESPONDENT/APPELLANT/PETITIONER:** **THOPPAYIL IMBICHAMINABI, AGED 81 YEARS, D/O.K.V.MAMUKOYA HAJI, SWASTHAM 14/818, SANTHOSH MAHAL,P.O.KALLAI NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK, REP.BY POWER OF ATTORNEY HOLDER, MUHAMMED ARIF,AGED 56 YEARS, PUTHIYAPURAYIL,KARANI VEEDU,** 3 R.C.REV. NOs.31 & 32 OF 2021 **BUSINESS, NAGARAM AMSOM AND DESOM , SHMIYANA P.O, KALLAI, KOZHIKODE TALUK, KOZHIKODE 673 003.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14.09.2021 ALONG WITH R.C.REV. NO. 31 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.REV. NOs.31 & 32 OF 2021 4 ## **ORDER** ## **K. BABU, J.** These Rent Control Revisions are directed against the common judgment dated 16.10.2019 in R.C.A.Nos.70 and 152 of 2018 passed by the Additional Rent Control Appellate Authority (II Additional District Judge), Kozhikode. The Rent Control Appeals arose from the order dated 29.01.2018 passed by the Rent Control Court (Additional Munsiff – II), Kozhikode, in R.C.P.No.191 of 2012. 2. R.C.P.No.191 of 2012 was instituted by the landlord under Section 5(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act') for fixing fair rent of the petition schedule building. The Rent Control Court, after considering the rival contentions on the basis of the pleadings, fixed the fair rent of the building at Rs.3,000/-(Rupees three thousand only) per month with effect from 10.12.2012, the date of petition. The Rent Control Court further directed that there shall be 10% increase in the fair rent fixed in every three years. The order of the Rent Control Court fixing the fair rent at Rs.3,000/- per month was R.C.REV. NOs.31 & 32 OF 2021 5 challenged by the tenant in R.C.A. No.152 of 2018. The landlord also challenged the order of the Rent Control Court in R.C.A.No.70 of 2018. Both the appeals were jointly considered by the Rent Control Appellate Authority. After considering the rival contentions the Appellate Authority recorded a finding that the fair rent fixed by the Rent Control Court is low and fixed the fair rent at Rs.5,000/- (Rupees five thousand only) per month from the date of petition. The said common judgment of the Appellate Authority is under challenge in these Rent Control Revisions, at the instance of the tenant. 3. The landlord pleaded that the petition schedule building was let out to the tenant in 1992 on a monthly rent of Rs.450/-. The tenant has been conducting an automobile electrical workshop in the petition schedule building. Later, the rent was enhanced to Rs.475/- per month. The tenant kept the rent in arrears with effect from 2008. The existing rate of rent, taking into account the importance of the locality, the land value prevailing in the area and the other attendant circumstances, is not reasonable and hence the fair 6 R.C.REV. NOs.31 & 32 OF 2021 rent is liable to be fixed at the rate of Rs.5,000/- (Rupees five thousand only) per month. 4. The tenant resisted the claim of the landlord and contended that he is not entitled to enhanced rate of rent as pleaded. The tenant further contended that no improvements have been made to the petition schedule building and he is ready to pay 10% increase from the existing rate of rent. 5. The evidence consists of the oral evidence of PW1, the landlord and that of RW1, the tenant; and Exts.A1 to A4 marked on the side of the landlord and Ext.B1 marked on the side of the tenant. Exts.C1 and C2 were marked as Court Exhibits. 6. Heard Sri.Cibi Thomas, the learned counsel for the petitioner. 7. While declaring that Section 5(1) would remain in the statute book enabling the Rent Control Court to fix fair rent, this Court in **Edger Ferus** v. **Abraham Ittycheria (2004 (1) KLT 767)** enunciated the following principles as guidelines for fixing fair rent:- “1. ………….. 2. …………. R.C.REV. NOs.31 & 32 OF 2021 7 3…………… 4. …………… 5. ……………. 6. ……………. 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 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 R.C.REV. NOs.31 & 32 OF 2021 8 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 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. 13. ………………. ” 8. The landlord gave evidence in support of his pleadings as PW1. The tenant is conducting an automobile electrical workshop in the building. While giving evidence as RW1, the tenant admitted that the building is situated by the side of the National Highway and close to IOC petrol pump and Kannancheri bus stand. He also admitted that there is easy public access from Kozhikode and other nearby towns. The tenant also admitted that the New By-pass Road and the Mini By-pass Road are close to the building. 9. The learned counsel for the revision petitioner mainly relied on Ext.C1 report, wherein it is mentioned that the monthly rent of an adjacent room is only Rs.2,700/-, to contend that the fair rent fixed by the Rent Control Appellate Authority, is exorbitant. Admittedly, the rate of rent referred 9 R.C.REV. NOs.31 & 32 OF 2021 to in Ext.C1 in respect of the adjacent building is not the fair rent, but the contract-rent, which has no direct bearing on the principle on which the fair rent to be fixed. 10. The Appellate Authority, after considering the locational importance of the area where the building is situated, the oral evidence of the landlord and the admission made by the tenant, arrived at a conclusion that the fair rent of the building is to be fixed at Rs.5,000/- per month. 11. The rental arrangement commenced in the year 1992 at a monthly rent of Rs.450/- per month was later enhanced to Rs.475/- per month. The petition seeking fixation of fair rent was instituted in 2012. 12. In **The Kamani Metals and Alloys Ltd.** v. **The Workmen (AIR 1967 SC 1175)** the Apex Court held that steep increase in the prices of commodities and increase in the wage level are judicially noticeable facts. In **Bharat Petroleum (erstwhile Burmah Shell) Management Staff Pensioners** v. **Bharat Petroleum Corporation Ltd. (AIR 1988 SC 1407)** the Apex Court held that the Court can take judicial notice of loss of money value over the periods. In R.C.REV. NOs.31 & 32 OF 2021 10 **Rattan Arya** v. **State of T.N. (AIR 1986 SC 1444)** in the context of Tamil Nadu Buildings (Lease and Rent Control) Act the Apex Court held that enormous manifold increase of rents throughout the country, particularly in urban areas is a judicially noticeable fact. 13. Section 20 of the Act deals with revision. As per subsection (1) of Section 20, in cases, where the Appellate Authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. 14. In **Rukmini Amma Saradamma** v. **Kallyani Sulochana [(1993) 1 SCC 499]** , the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex 11 ## R.C.REV. NOs.31 & 32 OF 2021 Court. While considering whether the High Court could have re-appreciated the entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second Court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary, in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ‘propriety’ it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion, but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. ## 15. In **T. Sivasubramaniam** v. **Kasinath Pujari** **[(1999) 7 SCC 275]** the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, no doubt, is a power of superintendence, and the High Court is not required R.C.REV. NOs.31 & 32 OF 2021 12 to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to re-appraise or re-assess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. ## 16. In **Ubaiba** v. **Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Act, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma Saradamma** (supra) it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate 13 ## R.C.REV. NOs.31 & 32 OF 2021 authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional court will not be entitled to re-appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlordtenant did not exist. ## 17. In **Hindustan Petroleum Corporation Limited** v. **Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in **Rukmini Amma Saradamma** (supra) the Apex Court reiterated that even the 14 R.C.REV. NOs.31 & 32 OF 2021 wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in **Rukmini Amma Saradamma** that the word ‘propriety’ does not confer power upon the High Court to re-appreciate the evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 18. In **Thankamony Amma** v. **Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** considering the matter in the backdrop of law laid down in the decisions in **Rukmini Amma Saradamma, Ubaiba** and **Dilbahar Singh** (supra) the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be perverse in any way. The High Court could not have re-appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. R.C.REV. NOs.31 & 32 OF 2021 15 19. We have carefully gone through the materials placed before this Court and we find no reason to interfere with the finding of the Rent Control Appellate Authority that the fair rent of the petition schedule building to be fixed at Rs.5,000/-. We are of the firm view that no interference is required in the impugned judgment of the Rent Control Appellate Authority. In the result, the Rent Control Revisions are dismissed. Sd/- **ANIL K.NARENDRAN, JUDGE** **Sd/K. BABU, JUDGE** MIN