Dr. Jose J Thaliyath v. K.N. Narasimha Shenoy

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944** **RCREV. NO. 157 OF 2016** **AGAINST THE JUDGMENT OF THE RENT CONTROL APPELLATE AUTHORITY AND DISTRICT COURT, ERNAKULAM IN R.C.A.nO.54/2015 FROM ORDER PASSED BY THE RENT CONTROL COURT, ERNAKULAM IN R.C.P.NO.57/2011 DATED 30/06/2015.** ## **REVISION PETITIONER/REVISION PETITIONER/RESPONDENT:** DR.JOSE J.THALIYATH AGED 69 YEARS S/O.JOSEPH, AGED 69, CRYSTAL MANOR, CITIZEN ROAD, AYYAPPANKAVU, ERNAKULAM. BY ADVS. SRI.K.C.CHARLES SRI.M.POLY MATHAI SRI.VIMAL K.CHARLES ## **RESPONDENT/RESPONDENT/PETITIONER IN R.C.P:** K.N.NARASIMHA SHENOY S/O. K.K.NARAYANA SHENOY, AGED 67, KALRICKAL HOUSE, DOOR NO. XL/6803,BEHIND PADMA THEATRE, KOCHI-682035. BY ADVS. SRI.P.VISWANATHAN SRI.K.V.VINOD THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 17.11.2022, ALONG WITH RCRev..173/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.Nos. 157 and 173 of 2016 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944 RCREV. NO. 173 OF 2016** **AGAINST THE JUDGMENT OF THE RENT CONTROL APPELLATE AUTHORITY AND DISTRICT COURT, ERNAKULAM IN R.C.A.NO.48/2015 FROM ORDER PASSED BY THE RENT CONTROL COURT, ERNAKULAM IN R.C.P.NO.57/2011 DATED 30/06/2015.** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** DR.JOSE J AGED 69 YEARS S/O.JOSEPH, AGED 69, CRYSTAL MANOR, CITIZEN ROAD, AYYAPPANKAVU, ERNAKULAM. BY ADVS. SRI.K.C.CHARLES SRI.M.POLY MATHAI SMT.A.T.RENJU SRI.VIMAL K.CHARLES ## **RESPONDENT/RESPNDENT/PETITIONER IN R.C.P:** K.N. NARASIMHA SHENOY S/O.K.K. NARAYANA SHENOY, AGED 67, KALARICKAL HOUSE, DOOR NO.XL/6803, BEDHIND PADMA THEATRE, KOCHI - 682 035. BY ADVS. SRI.P.VISWANATHAN SRI.K.V.VINOD THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 17.11.2022, ALONG WITH RCRev..157/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.Nos. 157 and 173 of 2016 3 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-------------------------------------------------R.C.R.Nos. 157 and 173 of 2016 ------------------------------------------Dated this the 17[th] day of November, 2022** ## **ORDER** ## **C.S.Sudha, J.** These revisions have been filed under Section 20 of the Kerala Building (lease and Rent Control) Act, 1965, (the Act). R.C.R.No.157/2016 and RCR 173/2016 have been filed against the common judgment dated 17/12/2015 R.C.A.No.54/2015 and R.C.A.No.48/2015 respectively of the Rent Control Appellate Authority(RCAA), Ernakulam against the order of the Rent Control Court (RCC), Ernakulam dated 30/06/2015 in R.C.P. No.57/2011. The revision petitioner in the revisions is the appellant in R.C.A.No.48/2015 and the respondent in R.C.A.No.54/2015. The respondent herein is the respondent in R.C.A.No.48/2015, the appellant in R.C.A.No.54/2015 and the petitioner in the R.C.P. The parties and the documents will be referred to as described in the R.C.P. 2. R.C.P.No.57/2011 was filed by the petitioner-landlord under Section 5 of the Act for fixation of fair rent. According to the petitioner, the petition schedule building was let out to the respondent on 26/02/1986 for a monthly rent of ₹ 4000/-. R.C.R.Nos. 157 and 173 of 2016 4 The rent was enhanced on 10/10/2001 to ₹5300/- per month. The area of the petition schedule building is 1250 sq ft. The petition schedule room is situated on the ground floor of a two storied building on the side of M.G.road, Ernakulam near Padma junction. The building is situated in a commercially important locality. The rate of rent in the area has increased considerably since 2003. The prevailing rent in the locality is ₹125/- to ₹150/- per sq.ft. The rent being paid by the respondent for the schedule building is very low. Considering the prevailing rate of rent, the high cost of living etc., the petitioner is entitled to get rent at the rate of ₹125/- per sq ft. from the respondent. The rent would therefore workout to ₹1,56,250/-. The respondent though initially agreed to enhance the rent, has failed to do so. Hence the petition for fixation of fair rent of the tenanted premises @ ₹1,56,250/- per month with a provision for enhancement @15% per annum. 3. The respondent entered appearance and filed objection contending that the R.C.P. is not maintainable. There is no landlord – tenant relationship between the parties. The wife and son of the respondent are the landlords of the respondent. The allegation that there has been enhancement of rent and that the present rent is ₹5300/per month is incorrect and false. On 17/08/2001, the petitioner entered into Ext.B3 agreement for sale with the wife and son of the respondent agreeing to sell the petition schedule building together with his undivided half interest in 4.250 cents of property in Sy.No.1683/1 of the Ernakulam Village. Pursuant to the execution of the agreement, the tenanted premises was put in the possession of the transferees. As per R.C.R.Nos. 157 and 173 of 2016 5 Ext.B3, the transferees have been authorised to collect rent in respect of the schedule building, whereby the transferees have stepped into shoes of the petitioner. On the very day of the execution of Ext.B3, the parties also entered into Ext.B2 agreement in which agreement the petitioner, the respondent and the transferees in Ext.B3 agreement are parties. As per Ext.B2, the right to collect rent has been transferred to the wife and son of the respondent and the respondent has attorned to the new landlords and therefore, the petitioner ceased to be the landlord of the building. As the petitioner has no right in the building, he cannot claim rent or fair rent from the respondent. 4. PW1 and PW2 were examined and Exts. A1 to A3 were marked on the side of the petitioner. No oral evidence was adduced by the respondent. Exts.B1 to B7 were marked on the side of the respondent. Exts.X1 to X3 and Ext. C1 were also marked. 5. The RCC rejected the contentions of the respondent, found landlordtenant relationship existing between the parties, and finding that the plinth area of the tenanted premises is 916 sq ft. fixed fair rent @ ₹68,700/- per month, that is, @ ₹75/per sq ft. which would come to ₹68,700/-. Aggrieved, both the parties preferred appeals. R.C.A.No.54/2015 was filed by the petitioner-landlord as the plinth area of the building was considered lesser than that claimed in the R.C.P. R.C.A No.48/2015 was filed by the respondent-tenant aggrieved by the fixation of fair rent. 6. Heard the learned counsel for the petitioner as well as the respondent. R.C.R.Nos. 157 and 173 of 2016 6 7. Section 20 of the Act allows the aggrieved party to challenge the legality, regularity or propriety of the order or proceeding of an Appellate Authority. The power of revision is limited to make a scrutiny of records to satisfy itself as to the three tests laid down in Section 20. It cannot convert itself into an evidence collecting or fact finding Court. The scope of interference by the revisional court is restricted to cases where the RCC or RCAA have relied on irrelevant consideration, ignored valuable items of evidence, or applied wrong principles of law. The revisional authority has to satisfy itself of the legality, regularity or propriety of the order or proceedings of appellate authority. It can interfere only where the impugned order is illegal, irregular or improper. Where there is no illegality, impropriety or irregularity in the orders of the RCC and the RCAA, there is no justification for invocation of the revisional jurisdiction under Section 20 of the Act. 8. In the present revisions, the main argument advanced on behalf of the respondent – tenant is that the RCC as well as the RCAA went wrong in finding the existence of landlord-tenant relationship between the parties by an incorrect/wrong interpretation given to Exts.B2 and B3 agreements. It is submitted by the learned counsel appearing for the respondent – tenant relying on the decisions in **R.Kanthimathi v. Beatrice Xavier** , **AIR 2003 SC 4149 and Balan M.R. v. Perli Tile Works Pvt.Ltd, Palakkad, 2018 (1) KHC 519** , that once Ext.B3 sale agreement was executed between the parties, the relationship or status of the parties changed from landlord and tenant to seller and buyer. Therefore, the tenancy agreement or R.C.R.Nos. 157 and 173 of 2016 7 arrangement no longer exists and hence the findings of the RCC as well as RCAA to the contrary are wrong necessitating an interference by this Court. 9. The RCC relied on the dictum in **Safeena Salim v. P.A Subair** , **2014 (4) KHC 671** to find that though Ext.B3 agreement for sale has been executed by the petitioner in favour of the wife and son of the respondent-tenant, the title over the tenanted premises had not passed on to the latter and that the petitioner still continues to be the owner/landlord of the building. In **Safeena Salim** _(Supra)_ , it has been held that a contract of sale does not create any interest in immovable property. Nor does a decree or order under the Specific Relief Act directing specific performance of a contract of sale by itself would amount to create an interest in the immovable property either by way of charge or other wise. It is settled that even such a decree or order has to undergo the process of execution or enforcement through the competent court resulting in transfer of property either voluntarily or by the intervention of court. It is only then the transferee under the contract of sale can claim that the said contract has got transformed into a real right in the property. The decisions cited on behalf of the respondent-tenant are not applicable to the facts of the present case because in the said cases, the agreement for sale was executed between the landlord and the tenant. In the case on hand, Ext.B3 is not an agreement between the petitioner and the respondent-tenant, but between the petitioner and strangers to the lease agreement, though they may be the wife and son of the respondent herein. R.C.R.Nos. 157 and 173 of 2016 8 10. In Ext.B2 agreement relied on by the respondent, it is stated that the petitioner has given the right to collect the rent of the tenanted premises to the wife and son of the respondent. Therefore, in the light of Ext.B2, it was argued on behalf of the respondent that the petitioner can no longer claim rent much less fair rent from the respondent. The RCC relying on Section 2(3), 11(16) as well as the dictum in **Parameswaran Nair v. Chellappan Pillai, 1983 KHC 231: AIR 1984 Ker 48,** rejected the contentions of the respondent. 11. A petition for eviction under Section 11 of the Act, can only be filed by a landlord. Section 2(3), which defines landlord says that, a landlord includes not only the person who is receiving or is entitled to receive the rent, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent. However, there is a restriction imposed in Sub-section (16) to Section 11, which says that a person who receives rent merely as an agent of the landlord cannot file a petition for eviction without the previous consent of the landlord. Relying on the dictum in **Parameswaran Nair** _(Supra)_ , the RCC concluded that only those who are included in the inclusive definition of Section 2(3) of the Act can file a petition for eviction without the previous consent of the landlord except the agent. This is because except the agent, the trustee, the executor and all others are persons who are legally competent to sue. An agent, in goes without saying, can only do whatever his principal authorises him to do. R.C.R.Nos. 157 and 173 of 2016 9 12. In the case on hand, the transferees in Ext.B3 agreement have no case that they are the trustees or executors or receivers or administrators or the guardian of the respondent within the meaning of Section 2(3) of the Act. Therefore, it was concluded that at best they can only be held to be agents of the petitioner-landlord who has given them the right to collect rent and as long as the title has not been transferred to the transferees of Ext.B3 agreement, the petitioner-landlord continues to remain the owner/landlord of the building and hence he is entitled to claim rent, from the respondent-tenant. This finding of the RCC has been confirmed by the RCAA. We do not find any illegality, irregularity or impropriety in the concurrent findings of the authorities on this point. 13. The RCC found the plinth area of the tenanted premises to be 996 sq ft., on the basis of which the fair rent was fixed. The RCAA on a re-appreciation of the evidence found that it was a mistake committed by the RCC and based on the evidence on record has rightly found that the plinth area of the tenanted premises is 1250 sq ft. The fair rent has been fixed accordingly. The rate of rent fixed by the RCC has not been changed or altered. It is only the plinth area of the tenanted premises that has been corrected. The RCAA found that the fair rent would come to ₹93,750/- per month, which the petitioner is entitled to from the date of petition, that is, 25/03/2011. We find no merit in the revision petitions. Hence both the rent control revisions are dismissed. R.C.R.Nos. 157 and 173 of 2016 10 Interlocutory applications, if any pending, shall stand closed. **Sd/P.B.SURESH KUMAR JUDGE Sd/C.S.SUDHA JUDGE** Jms/12.11