B.P. Anil Kumar v. Ratnavally

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 24TH DAY OF JULY 2012/2ND SRAVANA 1934** ## **RC Rev.No. 241 of 2012 ()** **------------------------IN RCA.116/2011 of III ADDL. DISTRICT JUDGE,KOZHIKODE IN RCP.95/2010 of PRINCIPAL MUNSIFF - 1,KOZHIKODE** **PETITIONER:** **---------------** **B.P.ANIL KUMAR AGED 39 YEARS, S/O.VELAYUDHAN NELLIKODE AMSOM AND DESOM, KOZHIKODE, PROPRIETOR SARATHI AUTOMOBILES, KP.10/475, KAKKODIMUKKU KOZHIKODE.** ## **BY ADV.SRI.MANJERI SUNDER RAJ** **RESPONDENT:** **--------------** **RATNAVALLY AGED 41 YEARS, D/O.APPUKUTTY NAIR, W/O.VIJAYAN CHITTADIPOYIL HOUSE, ERAVANNOOR VILLAGE KOZHIKODE TALUK.** ## **BY ADV. SRI.K.M.SATHYANATHA MENON** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 24-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **RC Rev.No. 241 of 2012 ()** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE 1: CERTIFIED COPY OF JUDGMENT DATED 19.01.2012 IN RCA NO.116 OF 2011 BY RENT CONTROL APPELLATE AUTHORITY/WAQF TRIBUNAL III ADDL. DISTRICT JUDGE, KOZHIKODE.** **ANNEXURE 2: TRUE COPY OF ORDER DATED 29.09.2011 IN RCP 95 OF 2011 BY RENT CONTROL COURT/MUNSIFF (1-P), KOZHIKODE** ## **RESPONDENT'S ANNEXURES: NIL** ## **//TRUE COPY//** **P.A. TO JUDGE** ## **dlk** ## **PIUS C. KURIAKOSE, & A.V. RAMAKRISHNA PILLAI, JJ. ------------------------------------R.C.R.No. 241 of 2012 ----------------------------------------Dated this the 24[th] day of July, 2012** ## **O R D E R** ## **Pius C. Kuriakose, J** Under challenge in this revision filed by the tenant under Section 80 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority confirming the order of the Rent Control Court fixing the fair rent of the building in question at Rs.10,000/- per mensem. What was let out to the tenant was 10 cents of land together with an automobile workshop building and a generator having a capacity of 7,500 watts. The rent originally fixed was Rs.4,000/- per mensem. According to the landlord, there was an understanding at the time of the entrustment that the originally fixed rent will stand enhanced during the first three years at the rate of Rs.500/- and that after the expiry **R.C.R.No. 241 of 2012** 2 of these three years for the next three year period the rent will stand enhanced by Rs.1,500/- and for the next three years the rent will stand enhanced by Rs.2,000/-. According to the landlord, the building is situated in a very important junction by name Kakkodi Mukku abutting to CalicutBalussery main road. The locality had commercial importance with several hotels, bazaars, ayurveda clinic, theatres etc., situated in close proximity to the building. The tenant is earning huge profits from out of the business carried on by him. The proceedings which the landlord initiated for evicting the tenant reached the High Court and the High Court has in its order dated 03.08.2010 in RCR No. 17/2010 tentatively re-ixed the rent to Rs.7,500/-for mensem. The High Court observed in the order that if either party is aggrieved by the rate fixed by the High Court it is open to him to apply for regular fixation of fair rent under Section 5. The rent control petition under Section 5 was filed by the landlord accordingly. According to the **R.C.R.No. 241 of 2012** 3 landlord, if the contract between the parties is implemented the rent will stand enhanced to Rs.14,000/- per mensem in the year 2010. Fair rent of the building will not be less than 15,000/- per cent. 2. The tenant filed statement of objections raising serious contentions. According to the tenant, the monthly rent mutually agreed upon between the landlord and the tenant is Rs.5,000/- only. There is no agreement between the parties for enhancement of the rent. The High Court fixed Rs.7,500/- as the rent payable by the tenant arbitrarily. The Fair Rent Court does not have to be influenced by the tentative fixation of rent by the High Court. The High Court itself has observed that regular fixation of rent should be by the Rent Control Court itself. 3. The Rent Control Court conducted any enquiry in which the evidence consisted of oral testimonies of PWs 1 and 2 and Ext.A1 on the side of the landlord. The report and sketch submitted by a commissioner were marked as **R.C.R.No. 241 of 2012** 4 Exts.C1 and C2. The commissioner was examined as CW1. On the side of the tenant he himself got examined as PW1. Exts.B1 and B2 were marked on his side. The Rent Control Court would evaluate the evidence and fix the fair rent of the premises in question at Rs.10,000/- per mensem with effect from the date of the rent control petition, 22.12.2010. To come to such a decision the Rent Control Court took into account the commercial importance of the locality as well as the ground reality that the tenant is in actual enjoyment of a total extent of 25 cents of land even though, the extent covered by the lease deed as only 10 cents. 4. The tenant preferred an appeal against the order of the Rent Control Court to the Rent Control Appellate Authority. The Appellate Authority made a re-appraisal of the entire evidence and pleadings. The appellate authority concurred with all the findings of the Rent Control Court. Accordingly, the appeal was dismissed. 5. In this revision under Section 20 various grounds **R.C.R.No. 241 of 2012** 5 have been raised by the tenant challenging the judgment of the appellate authority. It is urged that in coming to the decision that the fair rent is Rs.10,000/- per mensem, the Rent Control Court and the appellate authority were unduly influenced by the decision of the High Court to fix the rent tentatively at Rs. 7,500/- per mensem. 6. We have heard the submissions of Adv.Sri.Manjeri S. Sundar Raj, the learned counsel for the revision petitioner and those of Sri. K.M.Sathyanatha Menon, the learned counsel for the respondent landlord. According to Adv. Sri.Manjery S.Sundar Raj, the rate presently fixed by the rent Control Court and the appellate authority as the fair rent of the building is excessive. According to him, the statutory authorities were unduly influenced by the decision of this Court in RCR.No.17/2010 to tentatively re-fix the rent at Rs.7,500/- per mensem. Had it not been for such refixation. The court would have fixed the fair rent far below Rs.7,500/-. The decision to fix the fair rent at Rs.15,000/- **R.C.R.No. 241 of 2012** 6 per mensem is not justified by the evidence available on record. Per contra the submission of Adv.Sri. Sathyanatha Menon was that no excessiveness in the fair rent presently fixed. He highlighted that apart from the building the tenant is enjoying a total extend of 25 cents of land for conducting his automobile workshop - for parking the vehicles which come for repair as well as a generator having capacity of 7,500 watts. 7. We have given our anxious consideration to the rival submissions addressed in the bar. We have very carefully read through the order of the Rent Control Court and the judgment of the Rent Control Appellate Authority. We are convinced that the decision to fix the fair rent at Rs.15,000/-per mensem was taken by the two statutory authorities on a correct evaluation of the evidence which came on record in the case. The evidence, particularly Ext.C1 Commissioner's report shows that the premises enjoyed by the revision petitioner are situated by the side of **R.C.R.No. 241 of 2012** 7 Kozhikkode-Balussery main road. The evidence further shows that the workshop building has four rooms and another building with two rooms and a bath room attached. There exists a well also apart from a 7,500 CC generator provided to the tenant by the landlord. The nearness of kakkodi Mukku bazaar and Kumaraswamy Raja bazaar to the premises became evident. Nearness to bank and other commercial establishments, block office etc added to the commercial importance of the premises. The statutory authorities had evidence regarding the prevailing rent in the locality also to justify their decision. We also find that the parameters laid down by this Court in **Edger Ferus v. Abraham Ittchiara (2004 (1) KLT 767)** (a decision which is approved by the Supreme Court) and in **Muhammed Ahammed v. Atma Ram Chouthan(2011 (2) KLT SN 98)** were kept in mind by the Rent Control Court and the appellate authority while fixing the fair rent. 8. According to us the findings entered by the Rent 8 **R.C.R.No. 241 of 2012** Control Court and the appellate authority concurrently regarding the fair rent of the building are reasonable findings which are not liable to be upset in revision by this Court. We are sure that the order of this Court in RCR.17/2010 fixing the rent tentatively at Rs.7,500/- did not have any undue influence upon the statutory authorities as this Court had clearly stated that fair rent fixation should be in accordance with law. 9. The result to the above discussion is that we dismiss this revision. 10. On being informed about out decision the learned counsel for the revision petitioner/tenant submitted that as eviction order has already been passed against the revision petitioner under sub section (3) of Section 11, the revision petitioner be granted one years time to surrender the building. 10. This request is opposed tooth and nail by Sri.K.M. Sathyanatha Menon, learned counsel for the respondent/ 9 ## **R.C.R.No. 241 of 2012** landlady. Mr.Sathyanatha Menon submitted that this is a case where the widowed old landlady has been harassed by the tenant. The electricity connection of the building has been cut off by the KSEB due to non payment of current charges by the tenant. Mr.Menon submitted that even the death of the husband of the landlady was accelerated by the tenant, who unnecessarily implicated him in a false criminal case. Notwithstanding the stiffness of the opposition, we feel that there is justification for granting to the revision petitioner time till 31.3.2013 subject to the following conditions: 1) The revision petitioner shall file an affidavit within three weeks from today undertaking to give peaceful surrender of the building to the landlady on or before 31.3.2013. 2) Entire arrears of rent, if any, due as on date, inclusive of rent at the rate of Rs.10,000/- per mensem after the rent control court fixed the fair rent, shall be **R.C.R.No. 241 of 2012** 10 discharged within six weeks from today and the revision petitioner will in his affidavit state that he will continue to pay occupation charges at the rate of Rs.10,000/- per mensem, the fair rent presently fixed. 11. We make it clear that the revision petitioner will get the benefit of time as allowed above, only if he files the affidavit on time and the undertakings contained therein are honoured. If it is noticed that the revision petitioner has violated the conditions in the affidavit, it is open to the landlady to bring that to the notice of the execution court and the execution court can pass appropriate orders, if it is convinced that the conditions in the affidavit have been violated. Sd/- ## **PIUS C. KURIAKOSE, JUDGE.** Sd/- ## **A.V. RAMAKRISHNA PILLAI,JUDGE.** dlk ## **R.C.R.No. 241 of 2012** 11