C.M. Janaki and Deepa N. Nair v. Puvallathil Gopalan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 6TH DAY OF JANUARY 2014/16TH POUSHA, 1935** **RSA.No. 1468 of 2012 (G )** **-------------------------** **AGAINST THE JUDGMENT IN AS 11/2004 of SUB COURT, VADAKARA DATED 12-08-2009 AGAINST THE JUDGMENT IN O.S. 60/2003 OF MUNSIFF COURT, NADAPURAM DATED 21.10.2003** ## **APPELLANTS/RESPONDENTS/PLAINTIFFS:** **--------------------------------------------------------------** **1. C.M.JANAKI, W/O. LATE NARAYANAN NAIR, AGED 65 YEARS, SWASTHAM, 'UMA HOUSE' PURANERI AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.** **2. DEEPA N. NAIR, D/O.NARAYANAN NAIR, AGED 27 YEARS, ADVOCATE, 'UMA HOUSE' PURANERI AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADV. SRI.ZUBAIR PULIKKOOL** ## **RESPONDENT/APPELLANT/DEFENDANT:** **-----------------------------------------------------------** **PUVALLATHIL GOPALAN, S/O.KANNAN AGED 50 YEARS, BUSINESS, RESMA HOTEL VILATHAPURAM AMSOM AND MUTHUVADATHUR DESOM VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADV. SRI.C.P.MOHAMMED NIAS** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ R.S.A. No. 1468 of 2012 -----------------------------------------Dated this the 6[th] day of January, 2014 ## **J U D G M E N T** Plaintiffs are the appellants. Their suit for fixation of fair rent was decreed by the trial court fixing the fair rent at Rs.750/- (Rupees Seven hundred and Fifty only) per month payable with effect from 22.9.2003. The tenant challenged the same in appeal. The appellate court allowed the appeal and in reversal of the decree granted by the trial court the suit was dismissed. 2. In this appeal the following substantial questions of law have been framed: i. Has not the civil court jurisdiction to enhance the rent in the absence of an agreement by the landlord and tenant to that effect? ## **R.S.A. No.1468/2012** **-2-** ii. Whether the judgment, passed by the lower appellate court declining to enhance the rent, is against the law? 3. In **Issac Ninan v. State of Kerala – 1995 (2) KLT Page 848** this court declared the provisions relating to the fixation of fair rent in the Kerala Building (Lease and Rent Control) Act (hereinafter referred as “Act” for short) as void. 4. Based on the judgment in **Issac Ninan** 's case the landlords were to move the Civil Courts for fixation of fair rent. Hence, the suit was filed for fixation of fair rent. But that decision was subsequently reviewed by this court in **Edger Ferus v. Abraham Ittycheria – 2004 (1) KLT 757** . It was held therein that the jurisdiction of the Civil **R.S.A. No.1468/2012** **-3-** Court would stand ousted and only the Rent Control Court could fix fair rent. Therefore, a situation arose where, because of the subsequent decision in **Edger Ferus** 's case, the Civil courts' jurisdiction stood ousted and thus the Rent Control Court has to consider the application filed under section 5 of the Kerala Building (Lease and Rent Control) Act. 5. It was during the pendency of the appeal before the lower appellate court, the decision in **Edger Ferus** 's case was reported and so the lower appellate court held that the suit for fixation of fair rent is not maintainable before the Civil court. 6. The learned counsel for the appellants/landlords would submit that the parties were driven from one court to another. Though the suit was filed in the year 2003 for fixation of fair rent, no relief could be obtained so far. The learned counsel for the respondent/tenant would submit **R.S.A. No.1468/2012** **-4-** that the remedy of the plaintiffs is to file a fresh petition before the Rent Control Court under section 5 of the Act. 7. The learned counsel for the appellants would rely upon the decision of the Division Bench in **Abdul Hakeem Haji v. Nandagopalan – 2004 (3) KLT 797** in support of his submission that the Civil Court is duty bound to make over the suits pending before the Civil Court to the respective Rent Control Court so that litigant public would not be put to difficulty. The Civil Court is duty bound to transmit all the records including the evidence taken, so that the proceedings could be continued by the Rent Control Court with the evidence already on record or to be adduced by the parties. In this case the parties had adduced evidence with regard to the contentions raised by them. It was **Issac Ninan** 's case that paved the way for filing the suit before the Civil Court for fixation of fair rent under ## **R.S.A. No.1468/2012** **-5-** section 5 of the Act. But in the view of the subsequent decision, the appellate court had to set aside the judgment rendered by the trial court. Therefore, it is just and proper that the suit be transferred to the Rent Control Court, Nadapuram, so that, that court can dispose of the matter at the earliest, the appellants contend. 8. It is vehemently argued by the learned counsel for the respondent that the respondent/tenant cannot be penalised for the delay caused in the disposal of the matter. It is argued that before the lower appellate court itself the landlords could have, in the light of the decision of the Division Bench in **Abdul Hakeem Haji** 's case cited supra, requested for transfer of the suit to the Rent Control Court for fixation of fair rent. But that was not done. It is further submitted that if the fair rent is to be fixed from the date of the petition/suit, serious prejudice would be caused to the ## **R.S.A. No.1468/2012** **-6-** tenant. This contention cannot be countenanced for a moment since it was not because of the fault of the parties that the fair rent could not be fixed by the court. It was because of the decision in **Issac Ninan** ' case the landlords had to file a suit for fixation of fair rent before the Civil Court as otherwise they could have filed a petition under section 5 of the Act before the Rent Control Court itself, the learned counsel for the appellants submits. It was because of the subsequent decision the appeal had to be allowed holding that the Civil Court has no jurisdiction to fix the fair rent. 9. If the argument advanced by the learned counsel for the respondent/tenant is accepted, then certainly that would lead to negation of justice. True that when the appeal was pending a request could have been made to that court based on the decision of the Division Bench in **Abdul Hakeem Haji** 's case; but simply for the latches on the part **-7-** ## **R.S.A. No.1468/2012** of the counsel in not making such a request, justice cannot be denied to the parties when they are otherwise entitled to, is the submission made by the learned counsel for the appellants. 10. It is further submitted by the learned counsel for the respondent that in the R.C.P., the order of eviction passed under section 11(2)(b) was got vacated by resorting to section 11(2)(c) depositing the rent at the rate which was then prevalent, but if fair rent is to be fixed by the Rent Control Court with effect from the date of petition/suit, it would lead to unsettling the matter which was already settled/concluded. There is no merit in that submission as well. Perhaps, the rent/arrears of rent may have to be paid by the tenant. He cannot avoid that liability if it is so decided by the Rent Control Court. The suit is only for fixation of fair rent. It was instituted in the year 2003. The plaintiffs could not get the reliefs so far. What is the fair ## **R.S.A. No.1468/2012** **-8-** rent to be fixed is a matter to be decided by the trial court/Rent Control Court. The tenant is bound to pay the fair rent. Therefore, I find no merit in the contention advanced by the learned counsel for the respondent. 11. In the result this Regular Second Appeal is disposed of as follows: The proceedings for fixation of fair rent (initiated by filing a suit) will stand transferred to the Rent Control Court, Nadapuram. The entire records in the suit shall stand transferred to the Rent Control Court, Nadapuram. The Rent Control Court will re-number the case as R.C.P. The evidence which had already been recorded by the Civil Court shall be considered by the Rent Control Court for the disposal of the petition for fixation of fair rent. Both parties are also permitted to adduce further evidence, if any, in the matter. The parties will mark their appearance before the ## **R.S.A. No.1468/2012** **-9-** Rent Control Court, Nadapuram, on **23.01.2014** . Registry will see that the entire records are transmitted immediately to the Rent Control Court, Nadapuram. The Rent Control Court, Nadapuram, will dispose of the matter by 05.03.2014. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj