Jose v. Williams Daniel

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY, THE 23RD DAY OF JULY 2018 / 1ST SRAVANA, 1940** **AGAINST THE JUDGMENT DATED 19-03-2018 IN RCA 88/2010 of ADDL.RENT CONTROL APPELLATE AUTHORITY, THRISSUR** **AGAINST THE ORDER DATED 14-09-2010 IN RCP 81/2006 of RENT CONTROL COURT,THRISSUR** **REVISION PETITIONER/RESPONDENT/RESPONDENT:-** **------------------------------------------JOSE, AGED 73 YEARS, S/O. KUTTICHAKKU LONA, PALLIKULAM ROAD, AMBAKADAN JUNCTION, CHEMBUKKAVU VILLAGE, THRISSUR TALUK.** **BY ADVS.SRI.P.R.VENKETESH SRI.G.KEERTHIVAS** **RESPONDENT/APPELLANT/PETITIONER (LANDLORD):---------------------------------------------** **WILLIAMS DANIEL, AGED 56 YEARS, S/O. KANNAMBUZHA DANIEL, KIZHAKKEKOTTA DESOM, CHEMBUKKAVU VILLAGE, THRISSUR TALUK - 680 001.** **BY ADV. SRI.P.B. KRISHNAN (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23-07-2018, ALONG WITH R.C.R. NO.226 OF 2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **DST** ## **K. HARILAL & ANNIE JOHN,JJ.** **= = = = = = = = = = = = = = = = = R.C.R.Nos.225 & 226 of 2018** **- - - - - - -- - - - - - - - - - - - - -** _Dated this the 23[rd] day of July, 2018_ ## **O R D E R** ## **K. Harilal, J.** Since these revision petitions are filed challenging the judgment passed by the Rent Control Appellate Authority, Thrissur in R.C.A.Nos.72/2010 and 88/2010 filed by the revision petitioner herein and the respondent, both revision petitions have heard together and disposed of accordingly. The parties are referred to as in the Rent Control Petition. The revision petitioner in both these revision petitions are one and the same. Now, he is confronting with an order of eviction, passed concurrently, by the courts below under Section 11(2)(b) of the Kerala Buildings (Lease & Rent Control) Act, 1965 _(hereinafter referred to as 'the_ ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 2 :-** _Act')_ and an order fixing the fair rent of the petition schedule building @ `20,000/- with 10% enhancement of rent for every two years. 2. According to the petitioner, the petition schedule shop room belongs to him by virtue of a Sale Deed No.2487/2006. The petition schedule shop room was leased out to the respondent on 09.11.1962 for a monthly rent of `105/- by the prior landlord. Thereafter, the rent was enhanced and paid @ `1400/-. While so, the petitioner purchased the petition schedule building as per the aforesaid Sale Deed. The respondent has kept the rent in arrears from April, 2006 onwards. Consequently, on 14.08.2006, the petitioner has issued a notice to the respondent demanding arrears of rent and payment of rent at the enhanced rate of `20,000/- per month with effect from 01.09.2006. There has been ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 3 :-** considerable increase in the rate of rent at the locality, where the petition schedule shop room is situated. The petition schedule building is situated on the side of east post office road, which is adjacent to Municipal bus stand, Corporation Office, Sakthan Tampuran Bus Stand, Jai Hind Market etc. According to the petitioner, the petition schedule building is situated in the heart of Thrissur town. The petition schedule shop room is surrounded by so many important institutions of trade and commerce. The respondent has sent a reply with false averments. Thus the petitioner has prayed for an order of eviction under Section 11(2) (b) of the Act and for an order under Section 5(1) of the Act, directing the respondent to pay the enhanced rent @ `20,000/- per month with effect from 01.09.2006 onwards. ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 4 :-** 3. The respondent filed counter statement denying the claim for the order of eviction under Section 11(2)(b) on the ground of arrears of rent and disputed the claim for enhancement of rent @ `20,000/- per month. According to the respondent, the respondent has filed O.S.No.944/2006 in the Sub Court for specific performance of the agreement for sale against the prior landlord. So, the document purportedly executed as Sale Deed by the prior landlord in favour of the petitioner is not a legally valid sale deed. It did not convey title to the petitioner. The petitioner had mischievously obtained a document and the document is one without consideration. Further, it is contended that the petitioner is not entitled to get enhanced rent as the petition schedule building is not situated in a prime location as claimed by the petitioner. The ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 5 :-** petition schedule building is an old dilapidated building having no amenities at all. The prior owner had in fact agreed to sell the property to the respondent in the presence of the petitioner. Therefore, the respondent is entitled to get an order for specific performance. 4. On the aforesaid rival contentions, both parties adduced evidence, which consists of the oral testimony of PW.1 to PW.3 and Exts.A1 to A7 from the part of the petitioner and the oral evidence of RW.1 and documentary evidence Exts.B1 to B8 from the part of the respondent. Exts.C1, C1(a) and Ext.X1 were also marked. After considering the aforesaid evidence, the Rent Control Court passed an order granting an order of eviction under Section 11(2)(b). Further, the Rent Control Court passed an order fixing the enhanced fair rent @ `5,000/- with ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 6 :-** effect from 01.09.2006 with enhancement @ `10% for every two years. Aggrieved by the order passed by the Rent Control Court, the respondent filed R.C.A.No.72/2010 challenging the order of eviction under Section 11(2)(b) and enhanced the rate of monthly rent. The petitioner filed R.C.A. No.88/2010 challenging the inadequacy of the fair rent fixed by the Rent Control Court. Both the Appeals were heard together and the Appellate Authority passed the impugned judgment confirming the order of eviction under Section 11(2)(b) and enhanced fair rent to `10,000/- per month from `5,000/- with 10% increase for every two years. R.C.R. No.225/2018 has been filed challenging the Judgment passed in R.C.A. No.88/2010 and R.C.R. No.226 of 2018 has been filed challenging the judgment passed in R.C.A. No.72/2010. Thus, these revision petitions are ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 7 :-** filed challenging the legality and propriety of the concurrent findings of the courts below granting an order of eviction under Section 11(2)(b) and divergent findings whereby the monthly rent was enhanced @ `10,000/- per month with increase @ `10% for every two years. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 6. Shri. Keerthi Vasan, the learned counsel for the revision petitioner/respondent advanced arguments challenging the concurrent findings whereby the courts below granted an order of eviction against the revision petitioner/respondent under Section 11(2)(b) of the Act and enhanced rent. It is vehemently contended by the learned counsel for the revision petitioner ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 8 :-** that the courts below went wrong by passing an order of eviction under Section 11(2)(b) and enhancing the rate of rent under Section 5 of the Act when an Appeal challenging the judgment dismissing the suit for specific performance filed by the respondent against the prior landlord was pending before the Appellate Court. According to the respondent, there was an oral agreement for sale between the respondent and the prior landlord with respect to the petition schedule building. But, subsequently in violation of the said agreement, the prior landlord had executed the sale deed in favour of the petitioner herein and the said Sale Deed is not a valid Sale Deed, as it was executed fraudulently. Therefore, the court below ought to have allowed the Appeal on a finding that the denial of title of the petitioner is _bona fide_ . ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 9 :-** 7. Per contra, the learned counsel for the respondent/petitioner advanced arguments to justify the concurrent findings, whereby the courts below passed an order eviction under Section 11(2)(b) of the Act and an order enhancing the rate of rent to `10,000/- per month. 8. In view of the arguments at the Bar, the first point to be considered are,(1) whether there is any illegality or impropriety in the finding that the denial of title of the petitioner is not _bona fide_ ? (2) whether there is any illegality or impropriety in the concurrent findings, whereby the courts below passed an order of eviction under Section 11(2)(b) of the Act and enhanced the fair rent to `10,000/- per month? According to the petitioner, he purchased the petition schedule building by virtue of Ext.A4 partition deed dated ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 10 :-** 31.03.2006 and the respondent failed to pay rent from the date of sale deed, though the sale of the property in his favour was intimated and demanded the payment of arrears of rent, by Ext.A2 notice dated 14.08.2006. 9. The respondent has produced Ext.B7 series and Ext.B7 series would show that he has been paid rent upto 02.01.2006 only. Therefore, admittedly, the rent was in arrear from 02.01.2006 onwards. According to the respondent, Ext.A4 sale deed is not a valid document and the same was obtained fraudulently by the petitioner in violation of an oral agreement for the sale of the petition schedule building between the respondent and the former landlord. The respondent has no case that he had paid rent to the former landlord after 02.01.2006 or he has paid rent to the petitioner after Ext.A4 sale ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 11 :-** deed or the former landlord has claimed rent from him. It is his case that he has filed a suit for specific performance of an oral agreement for sale as Original Suit No.955 of 2006 and that suit was dismissed by Ext.A5 judgment and he had preferred an appeal before the Appellate Court. But, no document has been produced to prove the pendency of the appeal, challenging the judgment dismissing Original Suit No.955 of 2006. Thus, at the time of passing the impugned judgment, Original Suit No.955 of 2006, seeking a decree for specific performance against the former landlord stood dismissed. Even if such an Original Suit or appeal was pending, the same is of no consequence at all because the agreement for sale between prior landlord and the respondent does not create a charge over the property. That apart, by the execution of Ext.A4 sale deed, the petitioner **R.C.R. Nos.225 & 226 of 2018** ## **-: 12 :-** stepped into shoes of the prior landlord and thereby the landlord-tenant relationship between the petitioner and the respondent has commenced. So, the courts below are justified in finding that the denial of title of the petitioner is not _bona fide_ . 10. When considering the claim for enhancement of rent under Section 5 of the Act also, such a claim for specific performance or pendency of a suit or appeal, will not negate the petitioner's right to get enhanced rent or make any change in the respondent's status as tenant. The respondent would continue as tenant unless and until the suit for specific performance is decreed, in his favour. In the above view, we find that the respondent is the tenant under the petitioner, who purchased the building by virtue of Ext.A4 sale deed and he was liable to pay rent to the petitioner. In the **R.C.R. Nos.225 & 226 of 2018** ## **-: 13 :-** absence of evidence to prove the payment of arrears of rent after 02.01.2006, we do not find any kind of illegality in the order, granting order of eviction passed concurrently under Section 11(2)(b) of the Act. 11. The next question to be considered is, whether there is any illegality or impropriety in the determination, whereby the Appellate Authority enhanced the monthly rent from `5,000/- to `10,000/-? It is not disputed that the petition schedule building is situated in the heart of Thrissur town. The petition schedule building is situated very near to the office of the Corporation, Head Post Office, BSNL buildings, private bus stand, famous temple by name Vadakumnatha temple etc. The commercial importance of the locality, where the tenanted premises is situated is proved by Ext.C1 ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 14 :-** commission report and Ext.C1(a) sketch. 12. Going by the impugned judgment, it could be seen that the Appellate Authority has meticulously observed the guideline formulated by this Court in _**Edger Ferus v. Abraham Ittiyera**_ [2004(1) KLT 767 DB]. It has come out in evidence by the oral examination of PWs.2 and 3 that the the prevailing rent, with respect to the new buildings in the locality, is at the rate of `70/- to `96/per sq.ft. In order to prove the effect of inflation and decrease in the money value, the petitioner has produced Exts.A6 and A7. Ext.A6 is the relevant page of a book by name “Statistics since Independence” published by Department of Economics and Statistic, Government of Kerala and Ext.A7 is a publication by the Reserve Bank of India. ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 15 :-** 13. It is the case of the respondent that the petition schedule building is an old building, having no sufficient amenities as that of the buildings referred to by PWs.2 and 3, which stand 100 metres away from the petition schedule building. PW.2 is the Assistant Manager of South Indian Bank, situated very near to the tenanted premises. PW.2 has given evidence to prove the prevailing rent of the building occupied by South Indian Bank. PW.3 is the Revenue Officer of the Thrissur Corporation. He deposed about the prevailing rent of the shop room in their shopping complex owned by the Corporation. The proximity between the petition schedule building and the building occupied by the South Indian Bank and the shopping complex owned by the Corporation is not disputed. The rate of rent prevailing with respect to the aforesaid two buildings, which stand ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 16 :-** very near to the petition schedule building is `70 to `96/-per sq.ft. Ext.P7 shows that the average rate of inflation during the period from 1962 to 2005 is 9.9%. The original rent at the time of commencement of the tenancy in the year 1962 was `105/- only and at the time of filing of the Rent Control Petition, the rate of rent was `1,400/-. The total areas of the petition schedule building is 506 sq.ft. Thus, at the time of filing of rent control petition, the rate of rent was around `3/per sq. ft. only. The Rent Control Court enhanced the same, in view of Exts. P6 and P7 and the oral evidence of PWs.2 and 3, to `10/- and the Appellate Authority enhanced it again to `20/- per sq.ft. 14. It is true that the petitioner is not entitled to get rent at the rate of `70/- to `96/as that of the buildings occupied and by the South ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 17 :-** Indian Bank or owned by Thrissur Corporation, because those buildings are new buildings having more facilities than the petition schedule building. But, on a balancing of the rate of rent prevailing in the locality with the oldness and lack of amenities of the petition schedule building, we find that the enhancement of rent per st.ft. from `10/to `20/- made by the Appellate Authority is just and proper. The rent fixed by the Rent Control Court was inadequate, in view of the prevailing rent in the locality and inflation during the period from 1962 to 2005 and the consequence thereof in the economy. The Appellate Authority is justified in enhancing the rate of rent from `10/- to `20/- per sq.ft., considering the importance of the locality, inflation and resultant reduction in the money value and variation in the market value of the property, ## **R.C.R. Nos.225 & 226 of 2018** ## **-: 18 :-** construction cost of the building and living index etc. We do not find any kind of illegality or impropriety in the methodology adopted by the Appellate Authority in determining the fair rent. Hence, these Revision petitions are devoid of merits and dismissed accordingly. All pending Interlocutory Applications will stand closed. Sd/- **K. HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** RKM/DST //True copy// P.A. To Judge