K. Anil Kumar v. Pulingancheri Mubarak

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 16TH DAY OF OCTOBER 2017/24TH ASWINA, 1939** **RCRev..No. 200 of 2015 () --------------------------** **AGAINST THE ORDER/JUDGMENT IN RCA 103/2013 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT COURT), KOZHIKODE DATED 14-11-2014** **AGAINST THE ORDER/JUDGMENT IN RCP 111/2012 OF THE RENT CONTROLLER ADDITIONAL MUNSIFF COURT ,KOZHIKODE-I DATED 31-07-2013** **REVISION PETITIONER(S)/APPELLANT IN RCA/RESPONDENT IN RCP: ---------------------------------------------------------** **K.ANILKUMAR, AGED 45** **S/O.KRISHNAN, 13/300, NALLAPPAN SETTIYARAU PARAMBA @ EKARANA PARAMBA, MELE PALAYAM, NAGARAM AMSOM AND DESOM, KOZHIKODE THALUK AND DISTRICT** **BY ADVS.SRI.A.SUDHI VASUDEVAN (SR.) SMT.K.PUSHPAVATHI** **RESPONDENT(S)/RESPONDENT IN RCA/& PETITIONER IN RCP: ----------------------------------------------------** **PULINGANCHERI MUBARAK, AGED 36** **S/O.MUHAMMED, 4/611, AREEKAD, P.O.NALLALAM, NALLALAM AMSOM, CHERUVANNUR DESOM, KOZHIKODE THALUK AND DISTRICT, REPRESENTED BY HIS PA. HOLDER, PULIANGACHERY MUHAMMED, S/O.MAMMU AGED 80 YEARS, 4/611, AREEKAD PO, NALLALAM, NALLALAM AMSOM, CHERUVANNUR DESOM, KOZHIKODE TALUK & DISTRICT 673028** **R-R BY ADV. SRI.VINOD SINGH CHERIYAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16-10-2017, ALONG WITH RCR. 226/2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.HARILAL & A.M.BABU, JJ. .......................................... RCR Nos 200 & 226 of 2015 ........................................... Dated 16[th] October, 2017** ## **COMMON ORDER** ## **K.HARILAL, J.** These revision petitions are directed against the common judgment dismissing the appeal filed by the revision petitioners herein and the order passed by the Rent Control Court fixing the fair rent at the rate of Rs.2500/- per month with an yearly increase at the rate of 10% in the RCP filed by the respondent under Sec. 5(1) of the Kerala Buildings (Lease and Rent Control) Act. (The parties are referred to, in this order, as they are arrayed in the Rent Control Petition). 2. According to the petitioner, the shop rooms rented out to the respondent in the year 2003 and the monthly rent for the petition schedule shop room in RCP No.109/2012 was Rs.1000/- and the monthly rent of the petition schedule shop room in RCP No.111/2012 was Rs.1200/-. According to the petitioner, after the commencement of tenancy there was no revision of rent. Thus the existing rent is a meagre amount only when 2 RCR Nos 200 & 226 of 2015 comparing with the rent prevailing for similar buildings in the locality. The petition schedule shop rooms are situated at Palayam in the heart of Calicut city. It is a commercially important area, very close to Calicut railway station, private bus stand and a lot of government or private institutions. Subsequent to the entrustment of the building to the respondents, a lot of development and progress have been taken place in the said locality and income derived by the respondent from the business carrying on in the petition schedule shop room has also been increased. There has been tremendous increase in the rent in the locality, but the present rate of rent of the petition schedule shop rooms are negligible only. Therefore, considering the commercial importance of the locality, the periodical increase occurred in the tax assessments by the local body and the prevailing rent of the similarly situated buildings in the locality, the petitioner is entitled to get fair rent fixed at the rate of 5000/- per month. 3. The respondents resisted the claim for enhancement in rent contending that the location is so 3 RCR Nos 200 & 226 of 2015 important as claimed by the petitioner. According to them, there is no motorable access to the petition schedule shop building and the petition schedule shop rooms lack basic amenities such as toilet, bathroom etc. Further it is contended that there are several rooms in the petition schedule building which have been entrusted to different tenants for monthly rents ranging from 500 to₹ ₹600. Rooms having similar convenience in the locality would fetch 600 month only as rent. Therefore the₹ petitioner is not entitled to get an enhanced rent as claimed by him. 4. On the aforesaid rival pleadings both parties adduced evidence which consists of oral testimony of PW1 and RW1 and marked Exts A1 to A5 and B1 to B16 and C1 and C1(a). After considering the evidence on record the Rent Control Court has fixed fair rent at the rate of Rs.2000/- per month for the petition schedule shop room in RCP No.109/2012 and Rs.2500/- per month for the petition schedule shop room in RCP 111/2012. Even though, the respondents have preferred appeal before the appellate authority, the appellate authority also confirmed 4 RCR Nos 200 & 226 of 2015 the fair rent fixed by the rent Control Court and dismissed the appeal. Now the respondents have come up in revision challenging the methodology adopted by the Rent Control Court in the determination of fair rent. 5. Heard the learned counsel for the revision petitioners and the respondents. 6. The landlord-tenant relationship is not disputed. Similarly, the prevailing rate of rent with respect to petition schedule shop room in RCP No.109/2012 was also not disputed. In RCP 111/2012 the landlord contended that the existing rate of rent is Rs.1200/-. But respondent contended that monthly rent is Rs.1100/- only. However, after considering Ext A4 rent deed produced by the petitioner and Exts B1 to B4 receipts produced by the respondent the courts below found that the actual rate of rent per month was only Rs.1100/- which is evidenced by Exts B1 to B4, though Ext A4 rent deed shows otherwise. We, do not find any kind of perversity in the said finding. The courts below is justified in finding that the existing rent of petition schedule shop room in RCP 111/2012 is Rs.1100/- only. But admittedly no revision of rent was 5 RCR Nos 200 & 226 of 2015 effected after the commencement of tenancy in the year 2003. 7. Going by the concurrent findings of the courts below, it is not seriously disputed that the petition schedule shop rooms are situated in a commercially important area and the importance of the locality is reported by the Advocate Commissioner in Ext C1 report also. It has come out in evidence that the petition schedule shop rooms are situated at Palayam, very near to Calicut railway station, private bus stand and a lot of Government and private institutions. Since the commencement of lease, it stands proved that a lot of development and progress have been taken place in the locality. But the importance of the locality alone is not a decisive or relevant factor in the determination of fair rent. 8. The prevailing rent of the similarly situated buildings in the same locality is an important and relevant factor for the determination of fair rent. In the instant case, we find that absolutely there is no evidence to prove prevailing rent in the locality except the oral 6 RCR Nos 200 & 226 of 2015 assertion of PW1, the power of attorney holder of the petitioner. At this juncture, it is pertinent to note that the petitioner has not chosen to enter the witness box so as to speak about the prevailing rent in the locality for the similarly situated buildings and the enhancement of tax with respect to the petition schedule shop rooms. It is true that long lapse of time after the last revision of rent is also an important as well as relevant factor in the determination of fair rent. But that factor alone is not sufficient to fix fair rent. 9. In the instant case we find that the Rent Control Court had fixed fair rent on the basis of the fact that the petition schedule shop rooms are situated in a commercially important area and more than one decade has been elapsed after the last revision of rent. Certainly the petitioner is entitled to get an enhanced rent as fair rent. But we do not find any reason to fix fair rent at the rate of Rs.2500/- particularly, in the absence of any evidence which would prove the prevailing rent of the similarly situated shop rooms in the locality. It has come out in evidence that the petitioner himself has rented out 7 RCR Nos 200 & 226 of 2015 some other rooms in the same building to other tenants also. Certainly, he could have produced evidence to prove the existing rent of that rooms. So also he could have produced the evidence to prove the prevailing rent of the similarly situated other buildings in the locality. Therefore, we find that there is no evidence to support the enhancement of rent to Rs.2000/- and Rs.2500/respectively. Thus, the fixation of fair rent lacks evidence on record. However, in view of the finding that the petitioner is entitled to get an enhanced rent, the petitioner and the respondents can be given an opportunity to adduce sufficient evidence to prove their respective claims. More importantly, the guidelines issued by this Court in **2004 (1) KLT 767 (Edger Ferus vs. Abraham Ittycheria)** have not been considered in its correct perspective. 10. Consequently impugned judgment under challenge will stand set aside and the Rent Control Petition is remitted back to the Rent Control Court for fresh consideration after affording an opportunity to both parties to adduce further evidence. The parties shall 8 RCR Nos 200 & 226 of 2015 appear before the Rent Control Court on 30.11.2017. The Rent Control Court shall dispose the Rent Control Petition after further trial, if any, within a period of three months from the date of appearance. **K.HARILAL Judge** **A.M.BABU Judge** _sks/_