Leena Ramachandran v. Fathima and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 7[TH] DAY OF DECEMBER 2021/16TH AGRAHAYANA, 1943** ## **R.C.REV.NO.104 OF 2021** **AGAINST THE JUDGMENT DATED 20.03.2021 IN R.C.A.NO.21 OF 2017 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-II), PALAKKAD AND THE ORDER DATED 29.08.2017 IN R.C.P.NO.6 OF 2016 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), PALAKKAD** ## **REVISION PETITIONER:** ## **LEENA RAMACHANDRAN** **AGED 51 YEARS, W/O. RAMACHANDRAN, NEAR OLD STATE BANK, KALLEKULANGARA, PALAKKAD-678 009.** **BY ADVS. SRI.P.J.ANILKUMAR SRI.AJAY V.ANAND SRI.P.S.SREE PRASAD** ## **RESPONDENTS:** - **1 FATHIMA** **AGED 62 YEARS. W/O.SATHAR, MARHABA, RIVER ROAD, ANDIMADAM, PALAKKAD-678 651.** **2 FIROZE, AGED 42 YEARS** **S/O.SATHAR, MARHABA, RIVER ROAD, ANDIMADAM, PALAKKAD-678 651.** **3 SHINOZ, AGED 39 YEARS S/O.SATHAR, MARHABA, RIVER ROAD, ANDIMADAM, PALAKKAD-678 651.** **2** ## **R.C.Rev.No.104 of 2021** **4 RAHNA, AGED 36 YEARS,** **D/O.SATHAR, MARHABA, RIVER ROAD, ANDIMADAM, PALAKKAD-678 651.** **BY ADV SRI.LIJU. M.P** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 26.11.2021, THE COURT ON 07.12.2021 DELIVERED THE FOLLOWING:** **3** **R.C.Rev.No.104 of 2021** ## **O R D E R** ## Ajithkumar, J. The petitioner filed this Revision Petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, challenging the judgment of the Rent Control Appellate Authority (Additional District Judge-II), Palakkad in R.C.A.No.21 of 2017. As per the said judgment, the Appellate Authority confirmed the order of the Rent Control Court in R.C.P.No.6 of 2016 fixing fair rent of the petition schedule shop room. 2. Sri.M.A.Sathar was the landlord. He filed R.C.P.No.6 of 2016. He died and hence his legal representatives have been impleaded, who are supplemental respondents 2 to 5 herein. 3. The petition schedule shop room was let out to the petitioner in 1991. The rent was fixed as Rs.2,500/- per month with a provision for enhancement of rent at the rate of 20% in every five years. The lease agreement is Ext.A1. Rent was eventually enhanced to Rs.4,000/-. The landlord contends that considering the locational advantage, commercial **4** ## **R.C.Rev.No.104 of 2021** importance, rent being paid for neighbouring buildings/shop rooms and such other aspects, petition schedule shop room would fetch a monthly rent of at least Rs.50,000/-. The R.C.P. for fixation of the fair rent was filed in the said premises. 4. The respondent took up the contentions that at the time of availing the shop room on rent, Rs.2 lakhs was paid as advance and in view of the provision in the rent agreement for quinquennial revision, the court cannot fix fair rent. The petitioner also contended that the area where the petition schedule shop room is situated lost its commercial importance in course of time. He maintains that since the attempt of the landlord to evict the petitioner was failed, this R.C.P was filed. He also denied the claim that neighbouring buildings including the upstairs portion in the same building fetch higher rent. 5. The Rent Control Court after considering the evidence brought on record, namely, oral evidence of PW1 to PW3 and RW1 and the documents, Exts.A1, A2, C1 and B1 ordered to fix the fair rent of the petition schedule shop room as Rs.18 per sq.ft. **5** **R.C.Rev.No.104 of 2021** 6. The Appellate Authority considered the matter in detail and re-appreciated the entire evidence. The finding of the Rent Control Court that oral evidence of PW2 and PW3 could not be relied on was reversed. After such a detailed consideration of entire materials on record and on taking into account the guidelines laid down by this Court in **Edgar Ferus v. Abraham Itticheriya [2004 (1) KLT 767]** which stood affirmed by the Apex Court in **Edgar Ferus v. Abraham Itticheriya [2009 (4) KLT 673]** proceeded to dismiss the appeal. 7. The learned counsel for the petitioner would contend that the fair rent fixed was exorbitant, and considering the lessened commercial importance of the location as has been reflected from the evidence and in the absence of any reliable evidence regarding payment of higher rent to any of the nearby buildings, the courts below ought not have fixed the fair rent at such an exorbitant rate. The adverse impact of COVID-19 on business activities was not taken into account. Surmises and conjunctures in the **6** ## **R.C.Rev.No.104 of 2021** Commission report, Ext.C1 were wrongly placed reliance on by the courts below. Since there is provision for enhancement of rent in Ext.A1, jurisdiction under Section 5(1) stands excluded. The learned counsel would submit that in view of those aspects the impugned judgment requires interference. 8. The learned counsel appearing for the respondents, on the other hand, contended that the rent being paid for the rented premises of the first floor of the same building which has a lesser area, is more than what has been fixed as fair rent. The learned counsel further contended that considering the inflation and resultant reduction in the purchasing power of money, and also the locational importance the rent fixed by the courts below is still less. 9. In **State Bank of India, Tvm. v. Prasanna Kumari and others [2019 (2) KLJ 624]** this Court held thus,- 'On a survey of various provisions under the Act, we find that there is no provision prohibiting institution of a rent control petition, where there is an agreement between the landlord and tenant for periodical enhancement of rent during the period of the lease deed. On the other **7** **R.C.Rev.No.104 of 2021** hand, we find that according to Section 11(9) of the Act, where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply to the Rent Control Court for eviction of the tenant before the expiry of such period. In the above view, we are of the opinion that, the Legislature was so conscious to omit such a bar against institution of rent control petition seeking fixation of fair rent even if there is an agreement between the landlord and the tenant fixing the rent with provision for periodical enhancement. The absence of such a statutory bar gives rise to an inference that the Legislature has consciously permitted the landlord to approach the Rent Control Court to get the fair rent determined, notwithstanding the stipulation regarding periodical enhancement in the lease agreement. Therefore, it can be concluded that an agreement fixing the rent with periodical enhancement, at a specified rate, between the landlord and tenant, will not preclude the landlord from instituting a rent control petition invoking Section 5(1) of the Act, for fixation of fair rent.' In the light of the said decision, there cannot be any doubt as to the jurisdiction of the Rent Control Court in fixing the fair rent notwithstanding the provision for enhancement of rent in Ext. A1. **8** **R.C.Rev.No.104 of 2021** 10. The petition schedule shop room has an area of 117.92 sq.m. It is at Olavakkode and faces the PWD road. The building was let out to the petitioner in 1991 and the rent originally fixed was Rs.2,500/-. There was a provision for enhancement at the rate of 20% in every five years. The rent after revision was Rs.4,000/-. These facts are beyond dispute. 11. The learned counsel for the petitioner would contend that what stated in Ext.C1 are on the basis of hearsay information and the same should not have been acted upon. Only other evidence available on record was the oral testimony of PW1, and therefore, there was dearth of evidence for fixing the fair rent. The learned counsel further would contend that Rs.18 per sq.ft. is a very high rate, taking into account the limited facilities available in the building, locational disadvantages and other factors. 12. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the **9** **R.C.Rev.No.104 of 2021** District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under subsection (1) shall be at its discretion. 13. In **Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499]** , the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of **10** **R.C.Rev.No.104 of 2021** appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ‘propriety’ it - cannot mean that there could be a re appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 14. In **T. Sivasubramaniam v. Kasinath Pujari [(1999) 7 SCC 275]** the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High **11** **R.C.Rev.No.104 of 2021** Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. 15. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma Saradamma** it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to reappreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under **12** **R.C.Rev.No.104 of 2021** Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional - court will not be entitled to re appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 16. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in **Rukmini Amma Saradamma** the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and **13** **R.C.Rev.No.104 of 2021** Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in **Rukmini Amma Saradamma** that the word ‘propriety’ does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 17. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh** the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said - to be perverse in any way. The High Court could not have re appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. **14** **R.C.Rev.No.104 of 2021** 18. The Appellate Authority has marshalled the entire evidence came on record and notice the locational importance and commercial potential of the area. It is noted that institutions like Family Court, railway station, market, banks, and many residential colonies are available in the locality. The Appellate Authority also has taken into account the inflation and resultant reduction in the purchasing power of money and variations in the cost of living index. Oral testimonies of PW2 and PW3 were discarded by the Rent Control Court, but the Appellate Authority reversed that finding. However, no much reliance has been placed on their evidence, which is with respect to the rent being paid for the other buildings in the neighbourhood. Report of the advocate commissioner- Ext.C1, in which it is stated that the premises having less area than the petitioner's shop room, situated in the upstairs of the same building, fetches monthly rent of Rs.28,000/- was also taken into account. After considering all such aspects, the Appellate Authority concluded that the fair rent fixed by the Rent Control Court is reasonable. We are of the view that the **15** ## **R.C.Rev.No.104 of 2021** fair rent so fixed is in conformity to the guidelines laid down in **Edger Ferrus (supra).** 19. In the light of the principle of law discussed in paragraphs 11 to 16, we are of the view that the findings of the Appellate Authority or the Rent Control Court are not illegal, irregular or improper, warranting interference under Section 20 of the Act. The revision therefore fails and the same is dismissed. No costs. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr