C. J. Varghese v. Maliyekkal Ahammedkutty Haji

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU TUESDAY, THE 21ST DAY OF NOVEMBER 2017/30TH KARTHIKA, 1939 RCRev..No. 371 of 2016 -------------------------RCA 26/2014 of RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT COURT-I), MANJERI DATED 04-08-2016 RCP 9/2010 of MUNSIFF COURT, MANJERI, DATED 29-03-2014 PETITIONER IN R.C.R- APPELLANT IN R.C.A NO 26 OF 2014 & RESPONDENT IN R.C.A NO 40 OF 2014 RESPONDENT IN R.C.P.: --------------------------------------------------------- C.J.VARGHESE, S/O C.D. JOHNY, AGED 44, NATIONAL ELECTRICAL ENGINEERING, MALIYEKKAL TOURIST HOME AND RESTAURANT BUILDING, GROUND FLOOR, DOOR NO 535, UP HILL, MALAPPURAM DISTRICT, PIN 676 505. BY ADVS.SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.S.NITHIN (ANCHAL) RESPONDENT IN R.C.R- RESPONDENT IN R.C.A NO 26 OF 2014 & APPELLANT IN R.C.A NO 40 OF 2014 -PETITIONER IN R.C.P. --------------------------------------------------------- MALIYEKKAL AHAMMEDKUTTY HAJI, S/O MOIDEEN, AGED 75, VENGARA AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN 676 304. BY SRI.PUSHPARAJAN KODOTH BY SRI.K.JAYESH MOHANKUMAR BY SMT.VANDANA MENON THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21-11-2017, ALONG WITH RCR.394/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.HARILAL & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - - - - - ## R.C.R.371 & 394 of 2016 - - - - - - - - - - - - - - - - - Dated : 21[st] November, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** ## Harilal, J. - 1.These revision petitions are filed, challenging one and the same judgment, by the landlord and tenant in a rent control petition. Therefore these revision petitions are heard together and disposed of accordingly. R.C.R.394/2016 was filed by the landlord challenging the inadequacy of the fair rent fixed concurrently by the courts below and R.C.R.371/2016 was filed by the tenant challenging the quantum of fair rent on the ground that the same is exorbitant. - 2.According to the landlord, the scheduled building was leased out to the respondent in the year 1985 and the rent fixed was Rs.400/- per month. Subsequently the said rent was enhanced and the existing rent at the time of filing the rent control petition was Rs.1,400/- per month. **RCR.371 & 394/16** 2 According to the landlord, the petition schedule building is a commercial building and is situated in the heart of Malappuram town abutting the Manjeri-Malappuram road. After the commencement of tenancy the commercial importance of the locality has increased considerably. He has requested to enhance the rent; but the tenant was not willing to increase the quantum of rent. Similarly the commercial importance of the locality would fetch a rent to the tune of Rs.7000/- per month. Considering the fact that the building is an old building, the petitioner is entitled to get at least Rs.6000/per month. On the other hand, the respondent contended that the commercial importance of the locality is not so important as stated by the petitioner. He denied the averments in the petition that the prevailing rate of rent in the locality is Rs.10,000/- per month for the similar buildings. In short, considering the age of the building and the lack of amenities, the petitioner is not entitled to get the enhanced rent as claimed by him. **RCR.371 & 394/16** 3 - 3.On the aforesaid pleadings both parties adduced evidence and after considering the evidence on record, rent control court fixed the fair rent at the rate of Rs.4000/- per month. Feeling aggrieved, both parties filed appeals before the appellate authority and after considering both appeals together, the appellate authority also confirmed the rent fixed by the rent control court and dismissed the appeal filed by the respondent and allowed the appeal filed by the petitioner by granting periodical enhancement of the fair rent at the rate of 10% after every two year period of tenancy, on the amount of fair rent paid in the preceding period. - 4.The prevailing rate of rent is admitted by both parties. Going by the impugned judgment, it could be seen that the commercial importance of the locality is not seriously challenged by the respondent though such a contention was also raised in the counter statement. Ext.C1 commission report shows that the tenanted **RCR.371 & 394/16** 4 scheduled building is situated in a commercially important area, facing Manjeri-Malappuram road. Number of the business and commercial establishments; such as passport office, banks, hotels and restaurants, town hall, KSRTC bus stand, amusement park and civil station are situated very near to the petition schedule building. During cross-examination, the respondent also admitted the commercial importance of the locality. It was also admitted by him that after the commencement of lease the commercial importance of the locality has increased considerably. In view of the commission report and the admission of the respondent himself, the courts below are justified in finding that the commercial importance of the locality had been increased considerably after the commencement of lease and the petitioner is entitled to get the enhanced fair rent. - 5.In order to substantiate the quantum of rent claimed by the petitioner, PW1 and PW2 were **RCR.371 & 394/16** 5 examined. PW1 has given evidence in support of his claim in the petition and PW2 was examined to prove the prevailing rent in the locality for similar buildings. PW2 is the occupier of the another room in the same building and he is enjoying the same facilities as that of the respondent. He has given evidence to the effect that he has been paying Rs.4,320/- per month to the respondents. Petitioner has deposed that another room like scheduled room, in the 3[rd] floor of the building, owned by him was let out for Rs.7500/- per month. But no documentary evidence had been produced to substantiate the said contention. That apart, he himself admitted that the said shop room was leased out very recently. As rightly observed by the appellate authority the landlord did not venture to produce that rent deed in evidence. In the absence of documentary evidence, the appellate authority is justified in not relying on the self serving evidence of the landlord himself, as regards the prevailing rent at the rate of Rs.7500/- per month. **RCR.371 & 394/16** 6 6.The appellate authority further observed that in the year 2007, neither the landlord nor the tenant raised objection when the rent was refixed at Rs.1,400/- per month and now the respondent also admitted that there could be a periodical increase in the rent at the rate of 10% per month. Relying on the said admission also the rent control court fixed the fair rent at the rate of Rs.4000/- per month and in appeal the appellate authority also confirmed the said quantum of rent. In short, though the petitioner has claimed Rs.6000/- per month, no reliable evidence has been produced in evidence to substantiate the said contention. But on the basis of the evidence available on record and the admission from the part of the respondent also the court below fixed fair rent at the rate of Rs.4000/- per month. - 7.Further a periodical enhancement was given at the rate of 10% after two year period of tenancy upon the fair rent fixed by the lower court and **RCR.371 & 394/16** 7 the rent as on 8.4.2012 shall be at Rs.4,400/and the 10% of increase shall be there on expiry of every two year period of tenancy on the amount of rent. The periodical increase to the fair rent fixed is justified by the decision of this court in Sree Kumaran Nair, Suseela Traders v. Ponnuswamy Chettiar (2010 (3) KLT 444). We do not find any reason to interfere with the periodical enhancement given to the petitioner also. The revision petitions are dismissed accordingly. All pending applications in the above revision petitions are closed. Sd/- ## **K.HARILAL Judge** **Sd/A.M.BABU Judge** True Copy P.S.To Judge Mrcs/21.11