Nochikkattu Vadakkayil Vinod Kumar v. P.S. Mohammed Ashraf and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 17TH DAY OF JUNE 2013/27TH JYAISHTA 1935** ## **RCRev.No.332 of 2012 ()** **--------------------------** **(AGAINST THE JUDGMENT DATED 04-04-2012 IN RCA NO.83/2011 OF RENT CONTROL APPELLATE AUTHORITY/ DISTRICT JUDGE, KOZHIKODE, AGAINST THE ORDER DATED 28-03-2011 IN RCP NO.19/2010 OF PRL.MUNSIFF--I , KOZHIKODE.)** ## **REVISION PETITIONER(S)/APPELLANT(RESPONDENT IN CROSS OBJECTION)/ RESPONDENT:-** - **-----------------------------------------------------------------------------------------------------------------** **NOCHIKKATTU VADAKKAYIL VINOD KUMAR, S/O. BALAN, 51 YEARS, SHOP NO.16/904, NAGARAM AMSOM DESOM, KOZHIKODE TALUK-673 010.** **BY ADVS.SRI.V.T.RAGHUNATH, SMT.C.V.RAJALAKSHMI.** ## **RESPONDENT(S)/RESPONDENTS (CROSS APPELLANTS)/PETITIONERS:** - **-------------------------------------------------------------------------------------------------------** **1. P.S.MOHAMMED ASHRAF, S/O SHAHUL HAMEED, 54 YEARS, HOUSE NO 34/84D, KAIRALI NAGAR, VENGERI VILLAGE, KOZHIKODE TALUK - 673010.** **2. P.S. MOHAMMED SAGEER, S/0 SHAHUL HAMEED, 53 YEARS, HOUSE NO 34/84D, KAIRALI NAGAR, VENGERI VILLAGE, KOZHIKODE TALUK - 673010.** **3. P.S. ABDHUL GAFOOR, S/O SHAHUL HAMEED, 48 YEARS, HOUSE NO 34/84D, KAIRALI NAGAR, VENGERI VILLAGE, KOZHIKODE TALUK - 673010.** - **R1 TO R3 BY ADVS. SRI.K.SANEESH KUMAR, SMT.V.B.SANTHINI.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17-06-2013, ALONG WITH RCR. 333/2012 AND OTHER CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **T.R.RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.** = = = = = = = = = = = = = = = = = = = R.C.R Nos.332, 333, 334, 335 & 336 of 2012 = = = = = = = = = = = = = = = = = = = = = = = Dated this the 17[th] day of June, 2013 ## **O R D E R** ## **Ramachandran Nair, J.** The dispute raised by the landlords claiming enhancement of rent in R.C.P Nos.16, 17, 18, 19 and 20 of 2010 has been disposed of by a common order by the Rent Control Court. The same was subjected to appeals before the Rent Control Appellate Authority. In two cases viz., R.C.P Nos.18 & 19 of 2010, the landlords have filed cross objections. The Rent Control Court ordered enhancement in the following manner:- In R.C.P Nos.16 & 17 of 2010, fair rent is fixed as `1,000/- per month from 1.1.2010. In R.C.P Nos.18 & 19 of 2010, fair rent is fixed as `800/- per month from 1.1.2010. In R.C.P No.20 of 2010, fair rent is fixed as `1,500/- per month from 1.1.2010. 2. While disposing of the appeals, the learned Appellate Authority has given a modification in respect of two cases viz., R.C.P Nos.18 & 19 of 2010, where the rent has been fixed as `900/- per month. 3. While assailing the orders, the learned counsel for the petitioners Sri.V.T.Raghunath and Sri.S.Nirmal have submitted that no relevant data **2** _RCRs.332/10 and contd. cases_ has been submitted by the landlords either with regard to the importance of the locality or with regard to other factors. They submitted that some of the new buildings which have been pointed out are not very near to the petition schedule building in the same lane. Those are in main roads, where the road herein viz., Saibaba lane is not an important one and, therefore, mere presence of those buildings, may be in the nearby roads, cannot be a factor for granting enhancement like this. It is further submitted by the learned counsel that the landlords did not adduce evidence with regard to the comparable rate of monthly rent with respect to similarly situated buildings from the very same locality. It is also submitted that after referring to the evidence and finally analysing the same, the Rent Control Court abruptly granted enhancement without adopting any scientific method. 4. These contentions have been answered by the learned counsel appearing for the landlords Sri.K.Saneesh Kumar by pointing out that the landlords have been successful in adducing evidence to show the importance of the locality; to bring in evidence about the important establishments which have come up in the locality, the nearness of the same to the petition schedule building and the yardstick regarding the development in the area etc. It is submitted by the learned counsel for the _RCRs.332/10 and contd. cases_ **3** respondents submitted that these are some of the factors which are relevant for considering the fixation of rent, in the light of the decision of a Division Bench of this Court in **Edger Ferus** v. **Abraham Ittycheria** [2004 (1) KLT 767]. 5. Learned counsel Sri. V.T. Raghunath points out that there has been enhancement of rent upto the year 2006, going by the chief affidavit of the landlords, which factor has not considered by the Rent Control Court in fixing the fair rent. The landlords have claimed enhancement from 1.1.2010, going by the pleadings. 6. We have perused the orders passed by both the authorities below. 7. It is a case where the extent and measurement of the plaint schedule buildings are different and they are thus not equally placed. In paragraph (24) of the order passed by the Rent Control Court, while discussing the evidence of the landlords and the report of the Commissioner produced as Ext.C1, it was observed that the railway station link road is 50 metres away while the railway station road is just 200 metres away. The Kallai National Highway is 50 metres away. The Saibaba lane on the side of which the petition schedule buildings are situated, is a tarred motorable road. Just 50 metres away from the petition schedule _RCRs.332/10 and contd. cases_ **4** building, there is a four storied building by name Vikas Bhavan belonging to the Corporation of Kozhikode. Opposite to that, there is Apsara theatre and there is a telephone exchange within 50 metres on the south. Mention is made also about another shop room-cum-flat being constructed nearby the telephone exchange. It was also observed that on the north of the petition schedule building and the Annie Hall road, there is a three storied building by name Calicut centre which has recently come up and the same is later converted into a show room of Jayalakshmi Silks. Within 75 metres, there are a number of buildings known as M.A complex, Kamala Building, Vijaya Mansion and Sarada building which are multi storied buildings having three to four floors. It was also observed in the said paragraph that there are a number of institutions like computer institutions, dental clinic, beauty parlor, establishments and offices etc. All these aspects were taken together by the Rent Control Court to find that the locality is a very vibrant one. It was also observed that it cannot be a busy one like the Kallai road or Annie Hall road which are nearby localities. But, it was observed that these will show that there are developments in the locality. 8. After discussing the said evidence, along with other factors and the evidence of PW1 in paragraph (25), finally the court has fixed the respective monthly rate in respect of the rooms in the following manner: **5** _RCRs.332/10 and contd. cases_ “ _Considering all the materials adduced before this court this court is of the opinion that it is necessary to have a fair rent fixed. As far as RCP 16/10, and RCP 17/10 are concerned an amount of_ ` _1,000/- can only be considered as a fair rent while RCP 18/10 and 19/10 are concerned it is_ ` _800/-. As far as RCP 20/10 is concerned it is_ ` _1,500/-.Therefore the points are answered accordingly.”_ 9. The learned counsel for the petitioners are right in submitting that no effective method was adopted by the court in arriving at the monthly rent as above. The amount has been fixed after finding that the same is reasonable. But, it is not a case where the court has fixed the rent by adopting a particular percentage of rate for enhancement every year or by adopting the rate per sq. feet. We find from the impugned judgment that the same method has been adopted by the learned Appellate Authority also after overruling the contentions of the petitioners/tenants. With regard to R.C.P Nos.18 & 19 of 2010, a slight modification was given. 10. We have given our anxious consideration to the respective contentions of the learned counsel on both sides. The learned counsel on both sides have relied upon various decisions of this Court as well as of the Apex Court while putting forward their respective contentions. 11. The proof affidavit filed by the landlords mentions about the enhancement factor in respect of various buildings from the initial rent. _RCRs.332/10 and contd. cases_ **6** With regard to R.C.P No.18 of 2010, it was stated that initially the rent was `200/- from 1.8.1986 which was increased upto `280/- from 2006. No enhancement has been given in respect of R.C.P No.19 of 2010 after 2006. The averment is that on 21.4.1986 as per agreement `150/- was fixed as the monthly rent, which was increased upto `280/- and in 2006, there was no enhancement. The same is the statement made in respect of the building in R.C.P No.20 of 2010 that there was no enhancement from 2006 onwards. 12. It is evident that from the above that the case of the landlords is that from 2006 onwards they have not received any enhancement of rent. Therefore, it is reasonable to adopt 2006 as the base year for working out the enhancement for fixing the fair rent from 1.1.2010. ## 13. In **Mohammad Ahmad & anor** v. **Atma Ram Chauhan &** **ors** . (AIR 2011 SC 1940) various guidelines were issued by the Apex Court for applicability in matters wherein the tenant and landlord are fighting out for getting enhancement of rent and eviction on various grounds. In paragraph (21) Their Lordships have given several guidelines. Item No.1 is the following.- The tenant must enhance the rent according to the terms of the agreement or at least by ten percent after every three years, and the second limb of the said paragraph concerns the cases where rent is too low **7** _RCRs.332/10 and contd. cases_ (in comparison to market rent), having been fixed almost 20 to 25 years back then, the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rent also in the surrounding years, let out on rent recently. 14. Herein, there is no reliable evidence regarding the rent of the building let out in recent years and only Ext.A11 is produced. We are of the view that as far as these cases are concerned, since there has not been any enhancement from 2006, no reliable data except Ext.A11 lease deed is produced by the landlords to show the regular increase in the rate of rent in the locality, it will be sufficient to provide enhancement by 10% every year from 2006, which will do justice to both sides. 15. The next question is regarding the future rate of increase. The learned counsel for the petitioners submitted that the same is not a matter for this Court to consider while sitting in revision, as it was not considered by both the courts also. 16. The learned counsel for the landlords submitted that rather than leaving the parties to fight it out again before the Rent Control Court, the dictum laid in the decision of this Court in **Sreekumaran Nair** v. **Ponnuswami Chettiyar** [2010 (3) KLT 444] could be applied in this case by providing a similar enhancement for future years also. A reading of the **8** _RCRs.332/10 and contd. cases_ judgment will show that, that was a case where the Rent Control Court has granted 10% per year as future increase also. While dealing with the said contention, this Court in paragraphs (4) and (5) have found as follows:- _“4. The question that survives for consideration is whether the decision of the statutory authorities to allow 10% increase per year can be approved. A cursory reading of S.5(1) of Act 2 of 1965 which stands presently restored to the statute book by the judgment of the Supreme Court in Edger Ferus v. Abraham Ittycheria (2009 (4) KLT 673 (SC)), approving the judgment of this Court in Edger Ferus v. Abraham Ittycheria (2004 (1) KLT 767) to which one among us (PCK(J)) was party, can give room for rent for an argument that the Rent Control Court has power to fix only a definite amount as fair rent for a given building and has no power to permit periodical increase on the fair rent so fixed. The learned Rent Control Appellate Authority noticed several relevant aspects such as the value of money being on decline, corresponding increase in the value of land, inflationary trends in the economy and also the regular growth of the city as a whole etc. These reasons, we also feel, are good reasons which can justify the decision to allow increase on the fair rent at a reasonable rate at regular intervals. The learned District Judge has also pointed out that unless periodical increase is not permitted by the order of the Rent Control Court fixing fair rent, the landlords who have secured fair rent fixation orders, may approach the Court again for re-fixation of fair rent, and this can overburden the Courts. Avoidance of recurrence of litigation is certainly a laudable object. But, we cannot approve the_ **9** _RCRs.332/10 and contd. cases_ _reasoning of the learned District Judge that our courts may find it difficult to tackle the pendency situation arising from recurring litigation. According to us, our courts which are expected to be manned by dedicated and resolute Judges, will be capable of tackling any pendency situation, provided useful assistance is rendered to them by equally dedicated and industrious lawyers._ _5. ................Hence we hold that the authorities under the Rent Control Court have the power not only to fix fair rent but also to allow reasonable modifications to the rate so fixed at reasonable intervals by the order fixing fair rent itself._ 17. Having regard to the various aspects pointed out, we are of the view that enhancement at the same rate for future also can be adopted in this matter. Accordingly, the revision petitions are partly allowed. 18. As regards R.C.P Nos.16 & 17 of 2010, the monthly rent is fixed at `660/- from 1.1.2010 onwards, regarding R.C.P Nos.18 & 19 of 2010 the monthly rent is fixed as `410/- from 1.1.2010 onwards, regarding R.C.P No.20 of 2010, the monthly rent is fixed at `821/-, which is rounded off to `820/- from 1.1.2010 onwards respectively. The above amounts are arrived at after granting enhancement at the rate of 10% every year from 2006 onwards. 19. We also direct the tenant to deposit/pay to the landlords, the entire arrears of rent as on today, within a period of two months. The _RCRs.332/10 and contd. cases_ **10** landlords will be entitled to get enhancement of rent at the same of 10%, for the future years also. Sd/- **T.R.RAMACHANDRAN NAIR JUDGE** Sd/- **A.V.RAMAKRISHNA PILLAI JUDGE** krj /True Copy/ P.A to Judge