M. P. Padmanabhan v. Krishna Janaki, Jamuna Satyapradeep, Jagada Rajendran and Jalaja.M.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938 OP (RC).No. 43 of 2016 (O) --------------------------I.A.NO.2120/2015 IN RCA NO.123/2015 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY. PETITIONER(S): ------------- M.P.PADMANABHAN, AGED 70 YEARS, S/O.NARAYANAN, KUNHIMANGALAM, EDANAD DESOM, EDAT - POST, PAYYANNUR, KANNUR DISTRICT. BY ADVS. SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN RESPONDENT(S): - -------------- 1. KRISHNA JANAKI - AGED 84 YEARS, W/O.LATE KAPPANA MURALEEDHARA, RESIDING AT BLOCK 7, SI, CHINTHAVALAPPU FLATS, RAM MOHAN ROAD, CALICUT - 4, PRESENTLY RESIDING AT 2F, GLENDALE POINT (NORTH), S.I. APARTMENTS, NEAR FATHIMA SCAN AND RESEARCH HOSPITAL, SIVAPURI, NAMK ROAD, KOZHIKODE - 673 001. 2. JAMUNA SATYAPRADEEP, - AGED 47 YEARS, D/O.LATE KAPPANA MURALEEDHARA,RESIDING AT BLOCK 7, SI, CHINTHAVALAPPU FLATS, RAM MOHAN ROAD, CALICUT - 4, PRESENTLY RESIDING AT 2F, GLENDALE POINT (NORTH), S.I. APARTMENTS, NEAR FATHIMA SCAN AND RESEARCH HOSPITAL, SIVAPURI, NAMK ROAD, KOZHIKODE - 673 001. 3. JAGADA RAJENDRAN, - AGED 44 YEARS, D/O.LATE KAPPANA MURALEEDHARA, RESIDING AT BLOCK 7, SI, CHINTHAVALAPPU FLATS, RAM MOHAN ROAD, CALICUT - 4, PRESENTLY RESIDING AT 2F, GLENDALE POINT (NORTH), S.I. APARTMENTS, NEAR FATHIMA SCAN AND RESEARCH HOSPITAL, SIVAPURI, NAMK ROAD, KOZHIKODE - 673 001. 4. JALAJA.M., - AGED 41 YEARS,D/O.LATE KAPPANA MURALEEDHARA, RESIDING AT BLOCK 7, SI, CHINTHAVALAPPU FLATS, RAM MOHAN ROAD, CALICUT - 4, PRESENTLY RESIDING AT 2F, GLENDALE POINT (NORTH), S.I. APARTMENTS, NEAR FATHIMA SCAN AND RESEARCH HOSPITAL, SIVAPURI, NAMK ROAD, KOZHIKODE - 673 001. R1 BY ADV. SRI.T.K.VIPIN DAS(B/O) THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 08-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KAV/ OP (RC).No. 43 of 2016 (O) --------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------- EXT.P1: A TRUE COPY OF THE MEMORANDUM OF APPEAL IN RCA.123/2015 IS NOW PENDING BEFORE THE RENT CONTROL AUTHORITY (DISTRICT JUDGE), THALASSERY. EXT.P2:A TRUE COPY OF THE I.A.NO.2120/2015 IN RCA NO.123/2015 ON THE FILE OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), THALASSERY. EXT.P3: A TRUE COPY OF THE ORDER DATED 21.10.2015 IN I.A.NO.2120/2015 IN RCA NO.123/2015 ON THE FILE OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), THALASSERY. RESPONDENT(S)' EXHIBITS ------------------------------- NIL // TRUE COPY // P.S. TO JUDGE ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O.P.(R.C.)No.43 of 2016 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 8[th] day of April, 2016** ## **JUDGMENT** ## _**K.Ramakrishnan, J.**_ The appellant in R.C.A.No.123 of 2015 on the file of the Rent Control Appellate Authority, Thalassery has filed this original petition challenging Ext.P3 order passed by the rent control appellate authority in I.A.No.2120 of 2015 in R.C.A.No.123 of 2015 under Article 227 of the Constitution of India. It is alleged in the petition that the respondents herein as landlords filed R.C.P.No.6 of 2011 on the file of the Rent Control Court, Payyannur for fixation of fair rent of the petition schedule building. They claimed that the rent will have to be fixed at the rate of Rs.3,968/- per square meter. The tenant entered appearance and filed counter denying the entitlement of the landlords to get enhancement as claimed. According to him, the rent that is now being paid is just and reasonable and the petitioner is not entitled to get any enhancement. 2. This petition was tried along with other rent control petitions filed by the same landlords against different tenants in respect of the buildings situate adjacent to the petition schedule building and after ## **O.P.(R.C.)No.43 of 2016** ## **-:2:-** trial, the rent control court fixed the fair rent of the petition schedule building as Rs.12,500/- per month. This order was challenged by the tenant/petitioner herein by filing R.C.A.No.123 of 2015 before the Rent Control Appellate Authority, Thalassery which was made over to the III[rd] Additional District Judge, Thalassery for disposal. The petitioner herein also filed I.A.No.2120 of 2015 in R.C.A.No.123 of 2015 for staying the operation of the order fixing the fair rent. The rent control appellate authority by Ext.P3 order granted stay on condition that the petitioner shall deposit the rent at the rate of Rs.6,000/- per month from the date of petition till the date of the impugned order less the amount already paid by him within two months. This order is being challenged by the petitioner by filing this original petition. 3. Heard Sri.M.Sasindran, learned counsel appearing for the petitioner and Sri.T.K.Vipindas, learned counsel appearing for the respondents. 4. Learned counsel appearing for the petitioner submitted that the petitioner had filed R.C.A.No.123 of 2015 challenging the order fixing the fair rent itself. So under the circumstances, the court below should not have imposed any condition directing deposit of rent to stay the operation of the order fixing fair rent. Further the amount fixed by the court below is also exorbitant. Learned counsel for the petitioner ## **O.P.(R.C.)No.43 of 2016** ## **-:3:-** relied on the decision reported in **Ismail S.P. v. K. Sudhakara Shenoy** [2009 (4) KHC 889] in support of his case. 5. On the other hand, learned counsel appearing for the respondents submitted that similar petitions have been filed by other tenants and the appellate authority has directed them to deposit the entire amount fixed as fair rent by the rent control court. In this case, the court had shown some leniency and being a discretionary order, no interference is called for under Article 227 of the Constitution of India. Learned counsel also submitted that his client has also filed R.C.A.No.154 of 2015 dissatisfied with the quantum of fair rent fixed by the rent control court. He had relied on the decision reported in **Thalish v. Binu Raj** [2011 (3) KLT 857] for the proposition that the court can impose condition of deposit of rent more than the contract rent for granting stay in rent control matters. 6. The relationship between the parties is not in dispute. It is also an admitted fact that the petition was filed by the landlords for fixation of fair rent and the rent control court had fixed the fair rent of the building in question at the rate of Rs.12,500/- per month payable from the date of petition. Dissatisfied with the same, the tenant filed the above appeal as R.C.A.No.123 of 2015 and the landlords also filed another appeal as R.C.A.No.154 of 2015. Both the cases are pending ## **O.P.(R.C.)No.43 of 2016** ## **-:4:-** in different courts. 7. There is no dispute regarding the dictum laid down in the decision reported in **Ismail S.P. v. K. Sudhakara Shenoy** (supra) as section 12 is not applicable in an appeal filed by the tenant against the fixation of the fair rent. That was a case where in the appeal filed by the tenant against the order fixing fair rent, the landlord filed an application under section 12 of the Kerala Buildings (Lease and Rent Control) Act, 1965 for not remitting the rent fixed by the rent control court and the appellate authority allowed the application as the tenant did not deposit the amount and that was under challenge and in that circumstance this court has held that section 12 is not applicable in an appeal filed by the tenant against the order fixing the fair rent of the building and that will be applicable only in a case filed under section 11 of the Act. 8. In the decision reported in **Thalish v. Binu Raj** (supra) this court has held that the appellate authority has power to fix the rent payable more than the contractual rent for ordering stay of execution of the order of eviction passed even without an enquiry under section 5 of the Act. That principle also can be to some extent justified as but for the stay, the tenant's occupation of the building will become unlawful and he will have to pay compensation for use and occupation ## **O.P.(R.C.)No.43 of 2016** ## **-:5:-** of the building and the court can fix a reasonable amount as compensation for that purpose. That was not the case in hand. So the imposition of a condition for stay of operation of the fair rent fixed normally is not justifiable. But in this case considering the fact that the property tax itself comes to Rs.10,000/- per annum, when we put a question to the learned counsel for the tenant as to whether what is the rate at which he can prepare to deposit the rent, the learned counsel for the petitioner submitted that he is prepared to deposit rent at the rate of Rs.2,000/- per month from the date of petition filed by the landlord before the rent control court for fixation of fair rent. Though the counsel for the respondents opposes the same, we feel it appropriate that it can be accepted and the amount fixed by the appellate authority as a condition for staying the operation can be reduced to Rs.2,000/- per month, which the petitioner has to pay from the date of filing of the rent control petition till the filing of the appeal after deducting the amount already paid, within a period of two months and continue to pay the rent at that rate till the disposal of the appeal. We also feel it appropriate to direct the rent control appellate authority to dispose of the present appeal and also other appeals pending against the same common order as expeditiously as possible. Since the appeals are pending before different courts, we direct the ## **O.P.(R.C.)No.43 of 2016** ## **-:6:-** rent control appellate authority/Principal District Judge to consider the question as to whether all these cases can be posted before the same court so as to avoid conflicting decisions on the subject matter which has been decided by the rent control court on the basis of a common evidence and also consider the question as to whether service can be completed by giving notice to the counsels appearing for the respective parties in the respective appeals so as to avoid delay in service of notice as well namely if the tenant and the landlord has filed appeal against the same judgment, both parties can exchange notice in the appeal so that further notice to the parties can be avoided and delay can be avoided in disposal of the case. After complying with these things, the courts before which the cases are pending or to be transferred by the rent control appellate authority on administrative side on the basis of the observations made by this court, that court is directed to dispose of all the appeals as expeditiously as possible at any rate before the court closes for the Onam Holidays namely 9.9.2016. The rent control appellate authority is at liberty to consider the quantum of fair rent fixed by the rent control court untrammelled by the observation made by this court in disposing of this original petition and the interim arrangement made by this court. With the above direction and observation, the impugned order ## **O.P.(R.C.)No.43 of 2016** ## **-:7:-** passed by the court below is modified and the original petition is disposed of accordingly. Sd/- **P.N.RAVINDRAN JUDGE** Sd/- **K.RAMAKRISHNAN JUDGE** **vpv**