M.V. Manikandan and K. Ratheesh v. Mulakkiryath Khadeeja and Edamana Vlappil Khadeeja, R.C.Rev.No.123 of 2017, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA,** ## **1944** **RCREV. NO. 123 OF 2017** **AGAINST THE ORDER DATED 31.07.2013 IN RCP NO.38 OF 2011** **OF THE RENT CONTROL COURT (MUNSIFF), PAYYANNUR CONCURRING WITH THE COMMON JUDGMENT IN RCA NO.148 OF 2013 DATED 07.11.2016 OF ADDITIONAL DISTRICT JUDGE-III, THALASSERY REVISION PETITIONERS/APPELLANTS/RESPONDENTS:** - **1 M.V.MANIKANDAN, AGED 48 YEARS S/O. T. KRISHNAN,AMUL ICE CREAM, EVEREST BUILDING, MAIN ROAD, PAYYANNUR.** - **2 K. RATHEESH, AGED 38 YEARS** **S/O. THAMPAN, EVEREST AUDIO & VIDEO, EVEREST BUILDING, MAIN ROAD, PAYYANNUR, RESIDING AT PAYYANNUR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.** **BY ADV SRI.M.V.AMARESAN** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** - **1 MULAKKIRIYATH KHADEEJA, AGED 58 YEARS D/O. AYISHA UMMA, RESIDING AT NILESHASWARAM VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT PIN- 671 314.** - **2 EDAMANA VLAPPIL KHADEEJA, AGED 70 YEARS D/O. AYISHA UMMA, RESIDING AT THANKAYAN, SOUTH TRIKARIPUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT PIN - 671 310.** **BY ADV.SRI.R.SUDHISH** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev.No.123 of 2017 -: 2 :- ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ. -----------------------------------------------** ## **R.C.Rev.No.123 of 2017** ## **----------------------------------------------Dated this the 8[th] day of December, 2022** ## **O R D E R** ## **P.B.Suresh Kumar, J.** The tenants in a proceedings for fixation of fair rent under Section 5 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) are the petitioners in this revision petition. Respondents are the landladies in the proceedings. 2. The subject matter of the proceedings is a room in the ground floor of a shopping complex beneath a staircase. The tenants were paying rent in respect of the room at the rate of Rs.385/- per month. The application for fixation of fair rent was instituted by the landladies alleging that the rent that is being paid by the tenants is meagre and that fair rent has to be fixed at Rs.200/- per sq.ft. It is alleged in the application that the area of the room is 45 sq.ft. The tenants R.C.Rev.No.123 of 2017 -: 3 :- raised objections to the application. The Rent Control Court tried the application along with other applications preferred by the landladies in respect of a few other rooms in the very same shopping complex and fixed the fair rent of the premises at Rs.4,500/- per month, at the rate of Rs.100/- per sq.ft. 3. Aggrieved by the decision of the Rent Control Court, the tenants preferred appeal before the Appellate Authority. In the appeal, the landladies took out a Commission. In the report filed by the Advocate Commissioner, it was stated, among others, that the area of the tenanted premises is 70.37 sq.ft. and not 45 sq.ft. as pleaded by the landladies in the application for fixation of fair rent. The appeal was considered by the Appellate Authority along with the appeals preferred by other tenants against the common order. On a reappraisal of the materials on record, the Appellate Authority took the view that the Rent Control Court was not justified in fixing a uniform fair rent for all the rooms in the shopping complex of which some premises suffer from specific commercial disadvantages when compared to the rest. The Appellate Authority thereupon proceeded to consider the claim R.C.Rev.No.123 of 2017 ## -: 4 :- for fixation of fair rent with reference to each room separately and found that the tenanted premises being a room beneath the staircase, the Rent Control Court ought not have fixed its fair rent at Rs.100/- per sq.ft, and fixed its fair rent at Rs.80/per sq.ft. Thereupon, having regard to the fact that the area of the subject room is 70.37 sq.ft and not 45 sq.ft as pleaded by the landladies, it was held by the Appellate Authority that the tenants are liable to pay fair rent at the rate of Rs.80/- per sq.ft. for 70.37 sq.ft and thus the liability of the tenants was fixed at Rs.5,630/- per month, in the place Rs.4500/- fixed by the Rent Control Court. The tenants are aggrieved by the said decision of the Appellate Authority and hence, this revision petition. 4. Heard the learned counsel for the tenants as also the learned counsel for the landladies. 5. The learned counsel for the tenants contended, placing reliance on the reports of the Advocate Commissioner appointed in the proceedings, that the tenanted premises is an insignificant room in the building complex and the Appellate Authority, in the circumstances, was not justified R.C.Rev.No.123 of 2017 -: 5 :- in fixing the fair rent at Rs.80/- per sq.ft. for such a premises. It was also argued by the learned counsel that other than the importance of the locality, there is no evidence on record to infer as to what is the prevailing rate of rent for similar/identical premises. It was also argued by the learned counsel that at any rate, in the absence of an appeal against the decision of the Rent Control Court by the landladies, the Appellate Authority was not justified in raising the fair rent from Rs.4,500/- to Rs.5,630/- per month in the appeal preferred by the tenants. 6. Per contra, the learned counsel for the landladies supported the decision of the Appellate Authority mainly pointing out that the question relating to fair rent payable in respect of the premises is a pure question of fact, and the same cannot be challenged in a revision under Section 20 of the Act on any ground, whatsoever. According to him, the revision petition, in the circumstances, is liable to be dismissed on that sole ground. It was also argued by the learned counsel that insofar as the principles behind the provisions contained in Order XLI Rule 22 of the Code of Civil Procedure applies to the R.C.Rev.No.123 of 2017 -: 6 :- proceedings before the authorities under the Act as well, the Appellate Authority cannot be found fault with for having refixed the fair rent based on the report of the Advocate Commissioner. He relied on the decision of this Court in **Santha v. 1[st] Additional District Judge** , 1994 (1) KLT 516, in support of the said argument. 7. In exercise of the power under Section 20 of the Act, this Court is empowered to satisfy the correctness or legality or propriety of any decision or order of the authorities under the Act. It is now trite that in the said process, a finding of fact recorded by the authorities under the Act can be set at naught only if the same is perverse or has been arrived at without consideration of the material evidence or based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, would result in gross miscarriage of justice, as it is not treated as a finding in accordance with law [See **Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh** , (2014) 9 SCC 78]. Let us now consider the sustainability or otherwise of the arguments advanced by the learned counsel for the parties, keeping in mind the said principles. R.C.Rev.No.123 of 2017 -: 7 :- 8. True, there is no evidence on record to indicate the rent that is being paid by a willing tenant to a willing landlord for a similar/identical premises in the locality. The evidence on record, on the other hand, only indicates the commercial importance of the premises. As rightly observed by the Appellate Authority, commercial importance of the locality, its proximity to public places like schools, offices, hospitals are some among the factors to be taken note of, for the purpose of fixing the fair rent of a premises [See **Edger Ferus v. Abraham Ittycheria,** 2004 (1) KLT 767]. As such, merely for the reason that there is no evidence on record as regards other factors to be taken note of in the matter of fixing the fair rent of a premises, it cannot be said that the fixation of fair rent is bad. As noted, the Rent Control Court fixed a uniform fair rent for several rooms and the said decision was interfered with by the Appellate Authority and the fair rent was re-fixed for each room including the subject room separately having regard to its peculiarity. The factual finding arrived at by the Appellate Authority in this regard is purely a finding on a question of fact and we do not think that we would be justified in interfering R.C.Rev.No.123 of 2017 ## -: 8 :- with the said factual finding in a revision under Section 20 of the Act. All the arguments raised by the learned counsel for the tenants against the said finding are, therefore, liable to be rejected and we do so. 9. As noted, the specific case pleaded by the landladies in the eviction petition is that the area of the subject room is 45 sq.ft. and it is on that basis that the Rent Control Court fixed the fair rent of the premises at Rs.4,500/- per month, at the rate of Rs.100/- per sq.ft. There is no appeal against the said decision by the landladies. The decision of the Rent Control Court was challenged by the tenants only on the ground that the fixation of fair rent at the rate of Rs.100/- per sq.ft. is unsustainable in law. True, in the report of the Advocate Commissioner filed before the Appellate Authority, it is stated that the area of the subject room is 70.37 sq.ft. Even though the Appellate Authority accepted the contention of the tenants that fixation of fair rent at the rate of Rs.100/- per sq.ft is unsustainable in law, it is on the basis of the report of the Advocate Commissioner that the Appellate Authority re-fixed the fair rent payable in respect of the premises at Rs.5,630/- R.C.Rev.No.123 of 2017 -: 9 :- per month. True, the records do not indicate that the tenants disputed the area of the premises as reported by the Advocate Commissioner, but it is a fact that the tenants who were liable to pay only Rs.4,500/- per month, had they not challenged the decision of the Rent Control Court, is now called upon to pay Rs.5630/- per month in the place of Rs.4500/- per month. According to us, the Appellate Authority is not empowered to pass an order in favour of the landladies in an appeal preferred by the tenants. The decision of this Court in **Santha v. 1[st] Additional District Judge** _(supra)_ has no application to the facts of this case, as the proposition laid down in the said case is only that the respondent in an appeal filed under the Act is entitled to support the decision of the Rent Control Court not merely on the grounds found in his favour but also on the grounds which have been held against him by that authority, on the principle of Order XLI Rule 22 of the Code of Civil Procedure. The said decision cannot be understood as laying down the proposition that an Appellate Authority under the Act is empowered to pass an order in favour of a landlord in an appeal by the tenants. Needless to say, the decision of the R.C.Rev.No.123 of 2017 ## -: 10 :- Appellate Authority inasmuch as it held that the tenants are liable to pay fair rent at the rate of Rs.5,630/- per month instead of Rs.4500/- per month, is illegal, irregular and improper, and the said part of the decision of the Appellate Authority is liable to be interfered with. In the result, the revision petition is allowed in part setting aside the decision of the Appellate Authority to the extent indicated above and clarifying that the tenants are liable to pay fair rent only at the rate of Rs.4,500/- per month. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 09.12.2022