K.S. Arun v. P.K. Ramachandran and K.M. Parthasarathy and Sons

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 10TH DAY OF MARCH 2017/19TH PHALGUNA, 1938** **RCRev..No. 130 of 2014 ()** **--------------------------** **AGAINST RCA 36/2011 of THE RENT CONTROL APPELLATE AUTHORITY/I ADDL. DISTRICT COURT, KOZHIKODE DATED 06-04-2013** **AGAINST THE ORDER/JUDGMENT IN RCP 14/2010 of RENT CONTROL COURT/PRL.MUNSIFF COURT-I, KOZHIKODE DATED 21-01-2011** **REVISION PETITIONER/APPELLANTS IN R.C.A.NO.36 OF 2011/ 2ND RESPONDENT IN R.C.P.NO.14 OF 2010.:** **------------------------------------------------------** ## **K.S.ARUN** **AGED 34 YEARS, S/O.SURENDRAN, RESIDING AT A-4, 4TH FLOOR, BASSAM SEA SCAPE APARTMENTS, KASABA AMSOM AND DESOM, KOZHIKODE TALUK.** **BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA** **RESPONDENTS/RESPONDENTS IN R.C.A.NO.36 OF 2011/ PETITIONER IN R.C.P.NO.14 OF 2010 AND 1ST RESPONDENT IN RCP.:** **--------------------------------------------------** ## **1. P.K.RAMACHANDRAN** **AGED 77 YEARS, S/O.KRISHNA IYER, 1/796, SINGLE STREET, KALAPATHY P.O., PALAKKAD-678003.** ## **2. K.M.PARTHASARATHY AND SONS** **REPRESENTED BY ITS PARTNER K.P.SURENDRAN, HARDWARE MERCHANT, 13/311, PALAYAM ROAD, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK-673002.** **R-R1 BY ADV. SRI.K.B.SIVARAMAKRISHNAN R-R1 BY ADV. SRI.K.SANEESH KUMAR R1 BY ADV. SRI.T.C.SURESH MENON R1 BY ADV. SRI.P.S.APPU R1 BY ADV. SRI.A.R.NIMOD** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ.** **-----------------------------------------R.C.R. No.130 of 2014** **----------------------------------------Dated this the 10th day of March, 2017** ## **O R D E R** **--------------** ## _**Harilal, J**_ **.** - 1.The revision petitioner herein/2[nd] respondent is the tenant against whom the Rent Control Petition was filed under section 11(2)(b), 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for brevity) by the 1[st] respondent herein/petitioner. The parties are referred to as in the RCP. - 2.Originally, the petition was filed under the aforesaid provisions only. But, subsequently a prayer for determining fair rent of the petition schedule room was also incorporated in the rent control petition. The Rent Control Court found that the petitioner is not entitled to get eviction under section 11(3) and 11(4)(iii) of the Act; but fixed the fair rent as Rs.6,000/- from the date of petition and directed the 2[nd] respondent to put the landlord in vacant possession of the petition schedule room 2 R.C.R. No.130/2014 within 45 days under section 11(2)(b) of the Act. - 3.Aggrieved by the fixation of fair rent at the rate of Rs.6,000/-, the 2[nd] respondent preferred an appeal before the Appellate Authority and after re-appreciating the evidence on record, the Appellate Authority dismissed the appeal on a finding that there is no reason to interfere with the fixation of rent at the rate of Rs.6,000/- per month. The legality and propriety of the findings whereby the Rent Control Court fixed the fair rent, are challenged in this revision petition. - 4.It is the case of the petitioner that the petition schedule premises belonged to the family of the petitioner by virtue of partition deed No.1345/1902 of SRO, Kozhikode and as per the said said partition deed, the eldest member of the family is entitled to collect rent from the petition schedule rooms, as per the settlement deed. The petition schedule premises are shop rooms and the respondents are conducting hardware business in the said premises. The 2[nd] respondent, who is the son of the partner of the 1[st] respondent firm, executed a renewal deed enhancing rent to Rs.750/- per month and the period of lease is fixed till 31.7.2008. Accordingly, the 2[nd] respondent paid R.C.R. No.130/2014 3 rent up to August 2008 and thereafter the rent was kept in arrears. There was no enhancement in the rate of rent after 2008. 5.The 2[nd] respondent contended that the petitioner is not entitled to receive the rent and thereby he has disputed the landlordtenant relationship. But, at the same time, he further contended that he has executed a lease deed in his personal capacity with the petitioner's father in the year 2004. Thus, in the year 2004, the father of the petitioner entrusted the petition schedule premises with the 2[nd] respondent after receiving Rs.2,700/- with a provision for enhancement of rent by 5% every three year. Shri.Venkidachala Ayyer, the father of the petitioner, is no more and on enquiry it is learnt that the petitioner is not entitled to collect rent from the 2[nd] respondent, as he is not the eldest member of the family. The eldest members of the petitioner's family being Ranganayaki and Saraswathi, they are entitled to collect rent from the 2[nd] respondent. Now the place where the petition schedule shop rooms are situated became congested and it is not a business centre and therefore, the claim made by the petitioner is R.C.R. No.130/2014 4 - exorbitant and baseless and hence the claim for enhancement of rent cannot be allowed. - 6.On the aforesaid rival pleadings on the claim for enhancement of rent, the petitioner's power of attorney holder was examined as PW1 and the 2[nd] respondent was examined as RW1 and the documentary evidence consists of Exts.A1 to A3, B1 to B2 and C1(a) to C1(b) were marked. After considering the aforesaid evidence on record, the Rent Control Court fixed fair rent at the rate of Rs.6,000/- mainly on the basis of Ext.C1(a) commission report which was prepared after issuing notice to both parties. - 7.The learned counsel appearing for the 2[nd] respondent advanced arguments assailing the manner in which the Rent Control Court has fixed the fair rent. Secondly it is contended that there was no landlord-tenant relationship between the petitioner and the 2[nd] respondent, as the petitioner was not entitled to collect rent from the 2[nd] respondent as he is not the eldest member of the family under Ext.B1 partition deed. In order to substantiate the said contention, the 2[nd] respondent has produced copy of the election identity card of Ranganayaki under Order XLI rule 27 of the Code of Civil Procedure R.C.R. No.130/2014 5 (hereinafter referred to as 'the Code' for brevity) before the Appellate Authority. But, the Appellate Authority has not considered or disposed of the said application. Thirdly it is contended that even though the Rent Control Court relied on Ext.C1(a) report to fix fair rent, the Commissioner who prepared and submitted Ext.C1(a) report was not examined and his non-examination is fatal to the fixation of fair rent. - 8.Per contra, the learned counsel for the petitioner advanced arguments to justify the fixation of fair rent on the basis of Ext.C1(a) report. The learned counsel contends that no enquiry need be conducted to identify the persons who is entitled to receive rent under Ext.B1, as the person who receives rent also would come under the definition of landlord as contemplated under section 2 (3) of Act. Further, it is contended that even though the 2[nd] respondent has filed objection to the Commission report, no steps had been taken to examine the Commissioner so as to assail the findings in the report and the burden of proof in this respect was on the 2[nd] respondent. 9.At the outset, we must remember the scope and extent of R.C.R. No.130/2014 6 revisional jurisdiction of this Court under section 20 of the Act. Indisputably, the revisional court is not ordinarily expected to re-appraise the pleadings and evidence for the purpose of substituting factual findings entered by the fact finding authorities particularly when those findings are concurrent and reasonable findings entered on evidence. Thus, the scope of revision is limited to examination of the legality and propriety of the findings in the impugned order whereby the Appellate Authority allowed or dismissed the appeal. 10.The above view is reiterated by the Apex Court and all doubts in this regard are laid to rest by the decision in **Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh** (2014 (4) KLT 182 SC) para 45. _45. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court / First Appellate Authority because on reappreciation of the evidence, its view is different from the Court / Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court / Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by_ R.C.R. No.130/2014 7 _Court / Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or re - assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a Court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity._ - 11.In view of the above decision, we are not inclined to reappreciate or re-assess the evidence on which the factual findings are based, particularly when the impugned judgment shows that the fair rent was fixed on the basis of the R.C.R. No.130/2014 8 commission report, in adherence to the decision of this Court in **Edger Ferus v. Abraham Ittycheria** (2004 (1) KLT 767). 12.Coming to the denial of landlord-tenant relationship, the Rent Control Court found that the petitioner would fall under the definition of “landlord” provided under section 2(3) of the Act. The Rent Control Court has arrived at such a finding on the basis of Exts.A2 and A3 and on the admission of the 2[nd] respondent himself, when he was cross-examined in evidence. Ext.A2 is a letter sent by the 2[nd] respondent to the petitioner, which reveals that he paid rent by way of DD to the petitioner. It is also evident from Ext.A3 that he recognized the petitioner as landlord of the petition schedule rooms and even invited the petitioner, who is residing at Palakkad to come to Calicut for preparing their renewal deed. Moreover, at the time of examination of the 2[nd] respondent as RW1, he had admitted that he had paid rent to the petitioner and he has also admitted that he had sent letters to the petitioner to renew the rent deed and he was prepared to pay rent to the petitioner. As rightly held by the Appellate Authority in this context, the definition of landlord under section 2(3) of the Act is very R.C.R. No.130/2014 9 relevant. Section 2(3) of the Act defines landlord as follows: _“Landlord” includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.”_ 13.On a cursory reading of the definition itself, it could be understood that the landlord includes a person who is receiving or is entitled to receive the rent of the building, whether on his own account or on behalf of another. In the instant case, the 2[nd] respondent himself admitted that he has paid rent to the petitioner and the petitioner has received the same. In view of the above admission, no enquiry need be conducted as to whether the petitioner was entitled to receive rent as per Ext.B1 partition deed. Thus, the landlord-tenant relationship stands proved. Then it follows that the Rent Control Petition is perfectly maintainable also. Even though the Appellate Authority has not stated the reason for discarding the documents produced under Order XLI rule 27 of the Code of Civil Procedure, we find that even if those documents are R.C.R. No.130/2014 10 accepted in evidence, they would not improve the case of the 2[nd] respondent in the above analysis. It follows that no prejudice was caused to the 2[nd] respondent by the non consideration of document produced under Order XLI rule 27 of the Code of Civil Procedure. 14.Next we turn to the non-examination of the Commissioner. It is true that the fair rent was fixed on the basis of Ext.C1(a) commission report and the Commissioner was not examined in evidence, though the 2[nd] respondent has filed an objection. In the above context the decision of this Court in **Rajesh R.Kartha v. K.A.Ismail** (2015 (4) KHC 408) assumes relevance and significance. In this decision, this Court held that the report of the Commissioner and the evidence taken by him shall be the evidence in the suit and shall form part of the record. But it is left open for the court or with the permission of the court, any of the parties to the suit to examine the commissioner personally in open court touching any of the matters reported by him in his report or the manner in which he had made the investigation. Further, when one of the parties challenges the commission report, the burden is on the R.C.R. No.130/2014 11 party who challenges the commission report to examine the Commissioner under Order XXVI rule 10(2) to elicit explanation on the matters of resistance. In the instant case, the 2[nd] respondent has not taken steps to examine the Commissioner so as to substantiate his objection against the matters reported by the Commissioner. In the above analysis, we find that in the instant case non examination of the Commissioner is not fatal to the fixation of fair rent. 15.It is not disputed that the rent was at the rate of Rs.735/- till 2008. The commission report clearly shows that the petition schedule shop room is situated in the heart of Calicut Corporation on the side of a famous road by name Palayam road. The commission report further shows that Palayam bus stand is 150 metres away and Railway station is 250 metres away and several big buildings are situated on both sides of the said road. RW1 himself admitted that Palayam road is a business centre in Calicut city and several jewelleries, hardware shops, glass ware shops etc. are situated on the adjacent sides and the opposite side of the petition schedule room. The 2[nd] respondent has contended that due to congestion the R.C.R. No.130/2014 12 importance of Palayam road has been lost recently; but no evidence has been produced to substantiate any kind of loss or decrease in his income from the petition schedule shop room. So also he has no case that he is not getting enough income from the business so as to pay the enhanced rent. Had there been any loss or decrease in income, the 2[nd] respondent could have produced his statement of accounts before the Rent Control Court so as to show the reduction in his income. That apart, the Commissioner has reported that the prevailing rent in the locality for the same and similar condition is at the rate of Rs.15/- per sq.feet. As rightly observed by the Appellate Authority, if we apply the said rate, necessarily the monthly rent will come to Rs.10,500/-. But the Rent Control Court has not applied Rs.15/- per sq.feet as reported by the Commissioner and the rate is below Rs.10/- per sq.feet. ## 16.Further, we find that in **Edger Ferus v. Abraham Ittycheria** (2004 (1) KLT 767) this Court has issued certain guidelines for the fixation of fair rent and the Rent Control Court has gone through the said decision and fixed rent at the rate of Rs.6,000/- by considering the ingredients of the land value, R.C.R. No.130/2014 13 prevailing rent in the locality for the same and similar accommodation, inflationary trends in economic growth of city, cost of construction of the building, advantageous of amenities, bus stand places of public importance like bus stand, railway station, educational institutions etc. The Rent Control Court had taken into consideration all the aforesaid factors. In view of our limited jurisdiction, we are not inclined to re-appreciate the evidence entered by the Rent Control Court. In the absence of any illegality or impropriety in any of the findings, we find that there is no reason to interfere on the findings of the Appellate Authority. Hence this revision petition is dismissed. **Sd/-** **K.HARILAL, JUDGE** **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** vps