K.S. Kannan v. Padmavathy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY ,THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940** **R.C.Rev..No. 130 of 2016** **AGAINST THE ORDER IN RCP 11/2011 of RENT CONTROL COURT,PONNANI DATED 28-06-2012 AGAINST THE JUDGMENT IN RCA 28/2012 of RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE - III, MANJERI DATED 22-01-2016** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **K.S.KANNAN, AGED 51 YEARS, S/O.SANKUNNY, KONNAMKALATH HOUSE, EDAPPAL AMSOM, THUYYAM DESOM, PONANI TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.K.MOHANAN(PALAKKAD)** ## **RESPONDENT/RESPONDENT/PETITIONER:** **PADMAVATHY, AGED 59 YEARS, W/O.CHINNA SAMI, "RADHA NIVAS", EDAPPAL AMSOM, TALAMUNDA DESOM, PONANI TALUK, POST EDAPAL, MALAPPURAM DISTRIT, PIN 679 576.** **BY ADVS. SRI.Y.JAFAR KHAN SRI.SANTHEEP ANKARATH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.C.Rev..No. 130 of 2016 2 ## **ORDER** ## **Harilal, J** The revision petitioner is the respondent in R.C.P.No.11/2011 before the Rent Control Court, Ponnani under Sections 11(2)(b) and 5(1) of the Kerala Building (Lease and Rent Control) Act, 1965 [for short, the Act]. According to the respondentpetitioner-landlord, rent was in arrear from 01.06.2007, so she is entitled to get an order of eviction under Section 11(2)(b) of the Act. The petition schedule shop room was leased out to the revision petitioner-respondent-tenant in the year 2001, by executing a lease deed fixing the fair rent @ Rs.15/- per day. Thereafter there was no periodical revision of rent till the filing of the rent control R.C.Rev..No. 130 of 2016 3 petition. According to the respondent-petitionerlandlord, the rent of the similarly situated building in the locality had escalated upto ten times from the existing rent of the petition schedule shop room. The petition schedule shop room is situated in a commercially important locality and after the commencement of tenancy with the revision petitioner-tenant-respondent, surrounding area had been developed considerably and several wholesale and retail shops and public offices are located in that area. That apart, the petition schedule building is situated in a manner abutting to Ponnani-Palakkad State highway, very near to Edappal town. The Sub Registrar Office is housed in a building, very near to the petition schedule shop room. With the aforesaid averments petitioner claimed rent @ Rs.100/- per R.C.Rev..No. 130 of 2016 4 day. The revision petitioner-respondent-tenant resisted both the claims. According to the revision petitioner-respondent-tenant, no rent was in arrear. Further he denied the averment that the petition schedule shop room is situated in a commercially important area. According to him, the fixation of fair rent is sought only as a ruse to evict the respondent from the petition schedule shop room. After the commencement of tenancy, the respondentpetitioner-landlord had reduced the amenities given to to the petition schedule shop room at the inception of the tenancy and now created some hindrances to the free access to the courtyard of the tenanted premises. Several other vacant rooms are available in the locality; so, there was no increase in the rate of rent of the similarly situated buildings in R.C.Rev..No. 130 of 2016 5 the locality. With the aforesaid contentions, the revision petitioner-respondent-tenant prayed for dismissal of the rent control petition. 2. Both parties adduced evidence and after considering the evidence on record, the rent control court rejected the claim for eviction under Section 11(2)(b) of the Act; but passed an order fixing the fair rent @ Rs.30/- per day. The respondent-petitionerlandlord has not preferred appeal against rejection of the claim for eviction. But the revision petitioneras respondent-tenant has preferred an appeal R.C.A.No.28/2012 challenging the fixation of fair rent @ Rs.30/- per day. After re-appreciating the evidence on record the appellate authority also confirmed the order passed by the rent control court R.C.Rev..No. 130 of 2016 6 and dismissed the appeal. The legality and propriety of the concurrent findings, of the courts below, whereby the rent control court fixed the fair rent @ Rs.30/-, are under challenge in this revision. Heard the learned counsel for the revision 3. petitioner. 4. The sum and substance of the arguments advanced by the learned counsel for the respondent/petitioner/tenant is that there is no evidence to enhance the fair rent, but the rent control court enhanced the fair rent from Rs.15/- to Rs.30/-. It is also contended that the rent control petition itself was filed not in conformity with Section 27 of the Act. Per contra the learned counsel for the respondent-petitioner-landlord advanced R.C.Rev..No. 130 of 2016 7 arguments to justify the findings, whereby the courts below enhanced the fair rent from Rs.15/- to Rs.30/-. 5. Admittedly, the rent was originally fixed in the year 2001 @ Rs.15/- per day and thereafter there was no periodical enhancement. The rent control petition was filed after a long lapse of ten years. Going by the impugned judgment, it could be seen that the petition schedule shop room is situated very near to Edappal town and it is abutting to PonnaiPalakkad State Highway. The revision petitionerrespondent-tenant has not challenged the commercial importance of the locality, wherein the petition schedule shop room is situated. It is a commercially important area. Though, the tenant R.C.Rev..No. 130 of 2016 8 contended that the respondent-petitioner-landlord has reduced the amenities provided to the plaint schedule shop room at the inception of tenancy, no evidence has been adduced to substantiate the said contention. So, we do not find any reason to interfere with the findings of the court below that the petition schedule shop room is situated in a commercially important area. 6. Coming to the fixation of fair rent, as pointed out by the learned counsel for the revision petitioner-respondent-tenant, no evidence other than the oral evidence of PW1 was adduced by the respondent/petitioner/landlord to prove the prevailing rent of other buildings in the locality. PW1 has testified the commercial importance of the R.C.Rev..No. 130 of 2016 9 locality where the building is situated and the enhancement of rent, for the similarly situated buildings in the locality, during the last 10 years and the courts below have placed reliance on his oral testimony. We do not find any reason to disbelieve the claim for enhancement made by PW1. Going by the impugned judgment passed by the rent control court and the appellate authority, we find that the courts below have mainly relied on the decision laid down by this Court in _**Edgerferus v. Abraham Itticheriya**_ **[2004 (1) KLT 767]** for enhancing the rent from Rs.15/- to Rs.30/- per day. In _Edgerferus case_ (supra), this Court has held that the rent control court should take note of: - i. _The inflation and the resultant variations in the purchasing power money, variation_ R.C.Rev..No. 130 of 2016 10 _in the cost of living index, in the area reduction if the purchasing power of money and variation in the cost of living index caused by inflation since the commencement of lease._ - ii. _Demand of accommodation and availability of the building in the locality._ - iii. _Cost of construction of the building and type of construction._ - iv. _Locational importance._ - v. _The enhancement in the rental value and property tax._ - vi. _Increase in the price of building materials and the market value of the property in the locality etc._ 7. We are of the view that the reduction in the purchasing power of money and increase in the cost of living index, caused by inflation, are universal phenomena, which does not require any other R.C.Rev..No. 130 of 2016 11 proof. Even in the absence of any documents to prove the same, the court can take judicial notice of the consequence of inflation invoking the power of this Court under Section 56 of the Indian Evidence Act, 1872. According to Section 56 of the Indian Evidence Act, no fact of which the court will take judicial notice need to be proved. 8. In the instant case, the rent was originally fixed in the year 2001 and there was no periodical revision, despite the long lapse of one decade. Having regard to the reduction in the money value and increase in the cost of living, market price of the property and construction cost etc., we find that the courts below are justified in fixing the fair rent @ Rs.30/- per day. We do not find any reason to interfere with the determination of fair rent made by R.C.Rev..No. 130 of 2016 12 the courts below. The periodical enhancement is also justified in view of the decision of this Court in _**Sreekumaran Nair v. Ponnuchami Chettiar**_ [2010 (3) KLT 444] and _**Mohammad Ahmad v. Atma Ram Chauhan**_ [2011 (2) KLT (SN) 98]. With the above observations, we do not find any reason to interfere with the orders passed by the courts below and this revision is devoid of merits and, therefore, is dismissed accordingly. Sd/- **K.HARILAL, JUDGE** **sd/-** **ANNIE JOHN, JUDGE** AMV/30/01/2019 R.C.Rev..No. 130 of 2016 13