JOJU @ GEORGE v. MATHU and Others

## **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. 38 OF 2015** **AGAINST THE JUDGMENT IN RCA 158/2011 OF ADDL. RENT CONTROL APPELLATE AUTHORITY, THRISSUR AGAINST THE ORDER IN RCP 93/2009 OF RENT CONTROL COURT,THRISSUR** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **JOJU @ GEORGE,S/O. NELLISSERY FRANCIS(LATE), ARANATTUKARA VILLAGE,THRISSUR TALUK AND (DT.)** **BY ADVS.SRI.PHILIP ANTONY CHACKO SRI.P.M.SEBASTIAN** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** - ***1 MATHU,S/O.VADAKETHALA POULOSE,CHERPU VILLAGE AND DESOM,THRISSUR TALUK AND (DT.),PIN-680561. *(DIED, LRs IMPLEADED)** - **2 POULOSE,S/O.NEELANKAVIL MANI,EAST FORT DESOM,THRISSUR VILLAGE,TALUK AND (DT.).PIN-680 001.** - **ADDL.3 THANKAMMA, AGED 78, W/O. LATE MATHU, VADAKKETHALA HOUSE, POOTHARAKKAL P.O., CHERPU, THRISSUR TALUK AND (DT.) PIN:680 561.** - **ADDL.4 KOCHUMARY, AGED 58, D/O. LATE. MATHU, W/O. DAVIS, VADAKKETHALA HOUSE, KANDASHANKADAVU, THRISSUR TALUK AND (DT.). PIN:680 613.** - **ADDL.5 PAULSON, AGED 56, S/O.LATE MATHU, -DO- -DO-** **ADDL 6 SELVY ANTONY, AGED 54, D/O.LATE MATHU, -DO- -DO-** **SUNNY, AGED 52, S/O. LATE. MATHU, ADDL 7 -DO- -DO-** **DAVIS, AGED 50, S/O. LATE. MATHU, ADDL 8 -DO- -DO(ADDL.R3-R8 ARE IMPLEADED AS THE LRs OF THE DECEASED R1 AS PER ORDER DTD 13/8/15 IN IA 2088/15)** **BY ADVS.SRI.G.SREEKUMAR CHELUR (SR.) SRI.K.R.ARUN KRISHNAN MAHESH V RAMAKRISHNAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 17.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **R.C.R.No.38 of 2015** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-------------------------------------------------R.C.R.No.38 of 2015** **------------------------------------------Dated this the 17[th] day of November, 2022** ## **O R D E R** ## **C.S.Sudha, J.** This revision under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1965 (the Act) has been filed against the judgment dated 26/08/2014 in R.C.A.No.158/2011 on the file of the Rent Control Appellate Authority (RCAA), Thrissur, which appeal was preferred against the order dated 20/06/2011 in R.C.P.No.93/2009 on the file of the Rent Control Court (RCC), Thrissur. The revision petitioner herein is the appellant before the RCAA and the respondent before the RCC. The respondents herein are the respondents in the appeal and the petitioners in the R.C.P. The parties and documents in this revision petition will be referred to as described in the R.C.P. 2. According to the petitioners, the petition schedule building was let out to the father of the respondent on 10/12/1966 by the predecessor-ininterest of the petitioner for a monthly rent of ₹225/-. The respondent's father continued as a tenant under the petitioners and on his death, the 3 ## **R.C.R.No.38 of 2015** respondent became the tenant of the premises. The respondent is conducting a parcel service in the building. The monthly rent still paid is ₹225/-. Since 1966, the value of money has considerably come down. The rent paid by the respondent is quite inadequate. Considering the importance of the locality and prevailing rate of rent, the respondent is liable to pay ₹10,000/- as monthly rent for the building. However, the respondent has refused to pay the same and hence the R.C.P. for fixation of fair rent under Section 5 of the Act. 3. The respondent filed objection denying the allegation regarding the rate of rent at the time of entrustment. According to him, the rent was ₹25/- per month which has been enhanced over the years to ₹225/- per month. The respondent had agreed to enhance the rent to ₹300/- per month from April 2008 onwards. The building is an old and a dilapidated one and the petitioners have not been conducting any repair or maintenance of the building. It is the respondent who has been effecting the repairs and maintenance. The rent of ₹300/- for the tenanted premises is a fair one. The petitioners are not entitled to get enhanced rent @ ₹10,000/- as claimed by them. 4. On the side of the petitioners, PWs.1 and 2 were examined and Exts.A1 to A6 were marked. The respondent was examined as RW1 and 4 ## **R.C.R.No.38 of 2015** Exts.B1 to B3 were marked on his side. Ext.C1 report of the Commissioner has also been marked. After analyzing the oral and documentary evidence let in, the RCC partly allowed the R.C.P. Though the petitioners claimed rent @₹10,000/- per month, the RCC fixed the fair rent at ₹5,500/- per month w.e.f. 01/08/2009. It has also been directed that the monthly rent shall be enhanced every five years by 25%. This has been confirmed by the RCAA also. This revision has been filed by the respondent-tenant against the concurrent findings of the RCC and RCAA. 5. Heard Adv.Philip Antony Chacko, the learned counsel for the revision petitioner and Adv.G.Sreekumar (Chelur), the learned Senior counsel for the respondents. 6. 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 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 5 ## **R.C.R.No.38 of 2015** 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. Therefore, we will consider whether there is any illegality, impropriety or irregularity in the findings of the RCC or the RCAA. 7. The case of the respondent that the rent at the time of entrustment was only ₹25/- per month which was enhanced over the years to ₹225/- has been found to be false in the light of Ext.A6 rent deed, which is admitted by the respondent. Ext.A6 says that the rate of rent is ₹225/- per month. Rent of ₹225/- per month in the year 1966 is no small amount. This itself shows the worth and importance of the locality in which the building is situated. The RCC after taking into account the facts and circumstances in the case and the dictum in **Edger Ferus v. Abraham Ittycheria, 2004(1) KLT 767** , has fixed the rent at ₹5,500/- per month. The main grievance of the respondent is regarding the direction of both the courts for enhancement @ 25% every five years. It is submitted that in the light of the dictum in **K.S.Kadar Pillai v. Goven Travels** , **2014(4) KLT 593** , the RCC cannot as a routine, order periodic enhancement. As the direction of both the RCC and RCAA is against the dictum in **Kadar Pillai** 6 ## **R.C.R.No.38 of 2015** ( _Supra_ ), the argument is that the same is liable to be interfered with. 8. Here we refer to the dictum in **Sreekumaran Nair v. Ponnuswami Chettiyar, 2010(3) KLT 444** wherein a Division Bench of this Court considered the decision of the statutory authorities in allowing 10% increase in rent per year could be approved. It was held thus - “ _4. The question that survives for consideration is whether the decision of the statutory authorities to allow 10% increase per year can be approved. A cursory reading of Section 5(1) of Act 2 of 1965 which stands presently restored to the statute book by the judgment of the Supreme Court in Edger Ferus v Abraham Ittycheria (2009 (4) KLT 673(SC), approving the judgment of this Court in Edger Ferus v. Abraham Ittycheria(2004 (1)KLT 767) to which one among us (PCK(J)) was party, can give room for an argument that the Rent Control Court has power to fix only a definite amount as fair rent for a given building and has no power to permit periodical increase on the fair rent so fixed. The learned Rent Control Appellate Authority noticed several relevant aspects such as the value of money being on decline, corresponding increase in the value of land, inflationary trends in the economy and also the regular growth of the city as a whole etc. These reasons, we also feel, are good reasons which can justify the decision to allow increase on the fair rent at a reasonable rate at regular intervals. The learned District Judge has also pointed out that unless periodical increase is not permitted by the order of the Rent Control Court fixing fair rent, the landlords who have secured fair rent fixation orders, may approach the Court again for re-fixation of fair rent, and this can overburden the Courts. Avoidance of recurrence of litigation is certainly a laudable object………….”_ 7 ## **R.C.R.No.38 of 2015** 9. In **Kadar Pillai** ( _Supra_ ) a Division Bench of this Court also _inter alia_ considered the question whether the RCC while fixing fair rent, was justified in granting periodical enhancement @ 10% every two years. Referring to the discussion in para 5 of the decision in **Sreekumaran Nair** _(Supra)_ it was held thus - _“6. We are also of the view that those factors can be taken note of for periodical enhancement. But those general factors are to be shown to exist while granting periodical enhancement. The Rent Control Courts cannot routinely allow reasonable modification to rates so fixed. It has to be remembered that the right of the landlord is not foreclosed by fixing a fair rent by the Rent Control Court to approach the Court again for fair rent fixation. The cause of action to fix fair rent is a recurring cause of action depending upon factors that warrant fixation of the fair rent. In extreme case, there may warrant reduction of the fair rent so fixed on account of the decrease in market transactions, change of main avenue, shift of commercial activities, diversion of main road etc., therefore, in such situation it is not safe to award periodical increase. We do not find any reason has been assigned by the Rent Control Court in granting periodical enhancement. Therefore, we affirm the decision of the Appellate Authority in setting aside the periodical enhancement.”_ 10. The Division Bench in **Kadar Pillai** ( _Supra_ ) agrees with the earlier decision in **Sreekumaran Nair** _(Supra)._ What has been held in **Kadar Pillai** ( _Supra_ ) is only that a RCC cannot routinely order enhancement without assigning any reasons. Here, the RCC as well as the RCAA have given cogent reasons for directing enhancement quinquennially. Both the 8 ## **R.C.R.No.38 of 2015** courts refer to the inflationary trends prevailing and held that enhancement needs to be given. The argument advanced on behalf of the respondenttenant is that if the landlord wants an enhancement, he must approach the RCC every five years. Merely because this Court in **Edger Ferus** ( _Supra_ ) says that the landlord is entitled to quinquennial revision of rent, that according to him would not mean that the RCC can automatically order revision every five years. We cannot agree to this argument. The present R.C.P. has been filed in the year 2009. 13 years have elapsed. Time for two revisions of rent have elapsed. Yet the petitioner is to get a redressal of his grievance. R.11(8) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 says that the RCC need make only a brief note of the evidence adduced by the parties and witnesses. So, the enquiry conducted by the Rent Control Court is expected to be only in a summary manner. As per Section 24 of the Act, the RCC shall, as far as may be practicable, pass final orders within four months from the date of appearance of the parties. This provision is more honoured in its breach than in its observance. That being the state of affairs, to say that the landlord has to approach the RCC every five years, if he needs an enhancement, is totally unjust and uncalled for. In case a situation arises that may warrant reduction of the fair rent so fixed on account of the decrease in market transactions, change of main avenue, shift 9 ## **R.C.R.No.38 of 2015** of commercial activities, diversion of main road etc., the tenant can also approach the RCC to get the rent revised accordingly. It is made clear that in the event of such eventuality arising, this order will not preclude the tenant from approaching the RCC for appropriate orders. Both the courts have properly appreciated the evidence on record and have arrived at findings on facts. No illegality, irregularity or infirmity has been shown to exist in the findings of the authorities. Therefore, we do not find any reasons to interfere with the same. In the result, the revision is found to be without any merits and hence the same is dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR** Sd/- ami/