K.V.Sasi Varma and K.V.Rajasree Varma v. V. Parthasaradi

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
P. Somarajan
Judgment Date: 2017-06-06
Court Decision / Holding: RCR No.159/2014 is allowed; RCR No.177/2014 is dismissed; case remanded to Rent Control Court to determine the correct area of the petition schedule building, with the rent fixed at Rs. 10 per sq ft from the petition date and with 5% annual enhancement; the enhancement standards are reaffirmed by reliance on Sreekumaran Nair v. A.Ponnuswami Chettiyar.
Final Disposition: RCR 159/2014 allowed; RCR 177/2014 dismissed; remand for area determination; rent fixed at Rs.10 per sq ft; 5% annual enhancement confirmed.

Parties to the Case

Appellants / Petitioners

K.V. Sasi Varma
K.V. Rajasree Varma

Respondents

V. Parthasaradi
S/o V. Viswanatha Pillai

Legal Representation & Advocates

Counsels for Petitioners

• Sri V. T. Madhavanunni
• Sri V. A. Satheesh
• Sri J. Abhilash

Counsels for Respondents

• Sri O. Ramachandran Nambiar
• Sri Geen T. Mathew

Case Synopsis & Summary

This revision petition arises from a landlord-tenant dispute under the Kerala Buildings Lease and Rent Control Act, 1965, before the Kerala High Court. The Rent Control Court fixed the fair rent of the petition schedule building at Rs. 2,000 per month from the date of petition. The landlord challenged the quantum in R.C.Revision No.159/2014, while the tenant cross-appealed contending the rent fixed was exorbitant and not in line with locality. The Rent Control Appellate Authority enhanced the rent to Rs. 3,500 per month with a 5% annual enhancement, thereby allowing the landlord’s appeal and dismissing the tenant’s cross-appeal. On appeal, the court examined the evidence, including Ext. C1 Commission Report, which showed higher rents nearby and shop-room rates per square foot; the lower appellate rent of Rs. 5 per sq ft was found inadequate given the area and comparables. The court held that while the building is old, that alone cannot justify such a drastic reduction. It concluded that the fair rent should be Rs. 10 per sq ft, and the Rent Control Petition should be remitted to determine the correct area, with rent payable from the petition date at Rs. 10 per sq ft and with 5% annual enhancement continuing. It remanded with directions for area proof and cited Edger Ferus Vs. Abraham Ittycheria and Sreekumaran Nair v. A.Ponnuswami Chettiyar to support the approach; RCR No.159/2014 was allowed, and RCR No.177/2014 dismissed.

Provisions of Law Cited

Section 5 of the Kerala (Buildings Lease and Rent Control) Act, 1965

Submissions & Arguments

Contentions of Appellants / Petitioners

The landlord contends that the petition schedule building’s fair rent should reflect locality rates; he asserts an area of about 750 sq ft and claims market rates around Rs. 25 per sq ft, leading to a proposed rent of Rs. 18,750 per month. The Commission Report (Ext. C1) indicates higher rents in nearby premises. The landlord challenges the Appellate Authority’s fixation of Rs. 3,500 per month and argues that the old-age and fashion of the building alone cannot justify a reduced rent.

Contentions of Respondents

The tenant disputes the landlord’s quantum, arguing that Rs. 140 per month was the prevailing rent until petition, and contends the area remains contested. He relies on Ext. C1 and local rent comparisons to argue that Rs. 10 per sq ft may be excessive; the tenant also seeks accurate area measurement via commission.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Edger Ferus Vs. Abraham Ittycheria	2004(1) KLT 767	Positive	Court notes the lower appellate authority did not apply the parameters laid down in Edger Ferus in its correct perspective; Edger Ferus provides the guiding parameters for determining fair rent.
Sreekumaran Nair v. A.Ponnuswami Chettiyar	2010 (3) KLT 444	Positive	Court relies on this decision to affirm the 5% annual enhancement in rent.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 6TH DAY OF JUNE 2017/16TH JYAISHTA, 1939 ## RCRev..No. 159 of 2014 () -------------------------- AGAINST THE JUDGMENT IN RCA 3/2013 of ADDL. DISTRICT COURT-II, KOZHIKODE DATED 22-02-2014 AGAINST THE ORDER IN RCP 9/2011 of PRL. MUNSIFF COURT-II, KOZHIKODE DATED 06-09-2012 REVISION PETITIONER/APPELLANTS/PETITIONERS NOS.1 & 2:-: --------------------------------------------------------------------- 1. K.V.SASI VARMA, S/O.SUBHADRA KOVILAMMA AGED 56 YEARS, SREERAJ HOUSE, POST MANKAVU, VALAYANAD AMSOM & DESOM, KOZHIKODE TALUK, PIN - 673 007. 2. K.V.RAJASREE VARMA, D/O.SUBHADRA KOVILAMMA, AGED 46 YEARS, PRANAVAM HOUSE, POST MANKAVU, VALAYANAD AMSOM & DESOM, KOZHIKODE TALUK, PIN - 673 007. BY ADVS.SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.J.ABHILASH RESPONDENT/RESPONDENT/RESPONDENT:-: ------------------------------------------------------- V.PARTHASARADI, S/O.V.K.VISWANATHA PILLAI, AGED 54 YEARS, NO.8 KEERTHI NAGAR COLONY, KASABA AMSOM AND DESOM, PIN - 673 002, KOZHIKODE TALUK. BY ADVS. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06-06-2017, ALONG WITH RCR.177/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: IAP K.HARILAL & P. SOMARAJAN, JJ. --------------------------R.C.R. Nos.159 & 177 of 2014 --------------------------Dated this the 6[th] day of June, 2017 ## O R D E R ## **Harilal, J.** R.C.R.No.159/2014 and R.C.R.No.177/2014 are filed by the landlord and tenant respectively challenging the judgment passed by the Rent Control Appellate Authority, Kozhikode, modifying the fair rent fixed by the Rent Control Court, Kozhikode on the application filed by the tenant under Section 5 of the Kerala (Buildings Lease and Rent Control) Act, 1965, (for short 'the Act'), seeking fixation of fair rent. The Rent Control Court fixed the fair rent of the petition schedule building at the rate of Rs.2,000/- per month with effect from the date of petition. Challenging the inadequacy of the quantum of fair rent, the landlord filed R.C.A.No.3/2013 and the tenant filed Cross Appeal therein contending that the fair rent fixed by the Rent Control Court was exorbitant and not in accordance with the rent prevailing in the locality. RCRs.159 & 177 of 2014 :2: 2. After considering the Appeal and Cross Appeal, the Appellate Authority modified the rate of rent fixed by the Rent Control Court by re-fixing the rent at the rate of Rs.3,500/- per month with effect from the date of petition with an enhancement of 5% for every year. Thus, the Cross Appeal was dismissed and the Appeal was allowed. 3. Admittedly, the earlier rent was Rs.140/- only for nine years till the filing of the Rent Control Petition. According to the landlord, the prevailing rent in the locality is more than Rs.50/- per Sq. Ft. and since the petition schedule building is an old one, it will fetch Rs.25/- per Sq.Ft. Therefore, the fair rent of the building is to be enhanced at the rate of Rs.25/- per Sq. Ft. and claimed the rent at the rate of Rs.18,750/- per month. The tenant resisted the said claim; but admitted that the prevailing rent till the filing of the petition was only Rs.140/-. As regards the extent of area, the landlord contended that the petition schedule building is having an extent of 750 Sq.Ft. and the tenant contended that the petition schedule building is having an extent less than RCRs.159 & 177 of 2014 :3: 700 Sq.Ft. On the above premises, both parties adduced evidence. The landlord was examined as P.W.1 and Exts.A1 to A3 were marked and the tenant was examined as R.W.1 and the Commission Report was marked as Ext.C1. After evaluating the evidence on record, the courts below fixed the fair rent differently. 4. Heard the learned counsel for the landlord and the learned counsel for the tenant. 5. The only question to be considered is whether the modified rent fixed by the appellate court is just and fair in view of the evidence on record. 6. Going by the judgment and the order under challenge, it has come out in evidence that the landlord has mainly relied on Ext.C1 Commission Report and the Commissioner, in Ext.C1, has reported that no building is available in the locality for rent less than Rs.5,000/- per month. So also, it was reported that the rate of rent of two buildings near the petition schedule building ranges from Rs.3,000/- to Rs.4,235/- and two other buildings are leased out on daily basis for Rs.250/- and Rs.500/- RCRs.159 & 177 of 2014 :4: respectively. During cross-examination, the tenant himself admitted that the rent of the shop room just beneath the petition schedule building is Rs.30/- per Sq. Ft. So also, the tenant admitted that the rent of the shop room situated on the ground floor of one Jayanthi Buildings, which is situated near to the petition schedule building is Rs.50/- per Sq. Ft. 7. It is true that the petition schedule building is an old fashioned building. But, no evidence has been adduced by the tenant to prove that the old age or inconvenience of the building has affected the business of the tenant in the building. When the rent of the shop room beneath the petition schedule shop room is Rs.30/per Sq. Ft., the modified rent fixed by the appellate court at the rate of Rs.5/- per Sq. Ft. is inadequate and unjust. It can never be a fair rent. There is no rationale or reasonableness in reducing the rent to 1/6[th] of the rent of the room on the ground floor. The old fashion of the building alone is not sufficient to make wide variation, too much less than prevailing rent in the locality. The courts RCRs.159 & 177 of 2014 :5: below have not applied the parameters laid down in **Edger Ferus Vs. Abraham Ittycheria (2004(1) KLT 767),** in its correct perspective. It is to be remembered that the old fashion and age of the building are common factors affecting alike the tenant herein and the tenant of the shop room beneath the petition schedule building. 7. Having regard to the above view, we find that the modified rent fixed by the lower appellate authority is too meager and, considering the facts and circumstances of the case, the fair rent will stand fixed at the rate of Rs.10/- per Sq.Ft. 8. Coming to the extent of the petition schedule building, it is the specific case of the petitioner that the total extent of the petition schedule building is 750 Sq. Ft. But, according to the tenant, it is less than 700 Sq. Ft. It is to be noted that the tenant has not specifically stated the correct area of the petition schedule building, which is in his possession and enjoyment. However, there is no reliable evidence showing the correct area of the petition schedule building. RCRs.159 & 177 of 2014 :6: 9. We feel that, when the tenant disputes the area, it was incumbent upon him to take out a commission to ascertain the correct area of the petition schedule building, according to him. But, he failed to do so. However, we grant an opportunity to prove the correct area of the petition schedule building. Consequently, we fix the fair rent at the rate of Rs.10/- per Sq. Ft. and the Rent Control Petition is remitted back to the Rent Control Court for the limited purpose of proving the correct area of the petition schedule building alone and the tenant shall pay rent from the date of Rent Control petition, at the rate of Rs.10/- per Sq. Ft., for the area to be determined correctly by the Rent Control Court. It is made clear that the enhancement at the rate of 5% in every year will also stand confirmed, in view of the decision of this Court in **Sreekumaran Nair v. A.Ponnuswami Chettiyar [2010 (3) KLT 444]** . The tenant shall take steps to prove the correct area of the petition schedule building. The parties shall appear before the Rent Control Court on **10.7.2017.** RCRs.159 & 177 of 2014 :7: RCR.No.159/2014 will stand allowed and RCR No.177/2014 will stand dismissed. **Sd/-** okb. K.HARILAL, Judge. Sd/P.SOMARAJAN, Judge. //true copy// P.A. to Judge