P. Anantharama Aithal (dead) & Others v. N. Reghunathan Potty & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 16[TH] DAY OF MARCH 2022 / 25TH PHALGUNA, 1943** **R.C.REV.NO.121 OF 2018** **AGAINST THE JUDGMENT DATED 21.12.2017 IN R.C.A.NO.1 OF 2011 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-III), ALAPPUZHA AND THE ORDER DATED 30.09.2010 IN R.C.P.NO.60 OF 2004 OF THE RENT CONTROL COURT (MUNSIFF), ALAPPUZHA** ## **REVISION PETITIONERS:** - **1 P. ANANTHARAMA AITHAL (DIED) SREE DURGA BHAVAN HOTEL, CULLEN ROAD, MULLACKKAL, ALAPPUZHA.** - **2 VAMANAN POTTI, LAKSHMI SADANAM, MULLACKKAL, ALAPPUZHA (SON AND L/R OF PETITIONER NO.1).** **3 GIRISH, LAKSHMI SADANAM, MULLACKKAL, ALAPPUZHA. (SON AND L/R OF PETITIONER NO.1). BY ADVS. SRI.S.RAMESH BABU (SR.) SRI.A.KRISHNAN** ## **RESPONDENT/:** - **1 N. REGHUNANTHAN POTTY, VALIYAVEETTIL, THEVALLY, KOLLAM-691009.** - **2 P.SUNANDA, LAKSHMI SADANAM, MULLACKKAL, ALAPPUZHA-688011. (WIFE AND L/R OF PETITIONER NO.1).** - **3 A.ANANDAN, HEERA BAGH, BANNANJE WRONGLY TYPED IN THE ORDER AS BANNERJI, UDUPPI, KARNATAKA STATE, PIN - 576101. (SON AND L/R OF PETITIONER NO.1).** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.121 of 2018 ## **O R D E R** ## Ajithkumar, J. The respondent-tenant in R.C.P.No.60 of 2004 on the files of the Rent Control Court (Munsiff), Alappuzha, is the revision petitioner. The respondents-landlords filed the Rent Control Petition under Section 5(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking fixation of fair rent for the petition schedule shop room. As per order dated 30.09.2010, the Rent Control Court fixed fair rent at Rs.10,000/- per month. The petitioner preferred an appeal before the Rent Control Appellate Authority (Additional District Judge-III), Alappuzha as R.C.A.No.1 of 2011 under Section 18(1)(b) of the Act. The respondentslandlords preferred a cross objection in that appeal. The Appellate Authority as per judgment dated 21.12.2017 dismissed the appeal and allowed the cross objection in part, thereby re-fixing the fair rent at Rs.15,000/- per month with an annual increase of 8%. Thereupon, the petitioner has filed this Revision Petition under Section 20 of the Act. 2. In the Rent Control Petition, in the appeal and also in this Revision Petition, the petitioner took up a contention that the 3 R.C.Rev.No.121 of 2018 petition schedule shop room, although has an area above 3000 sq.ft., being an old and dilapidated building, it does not fetch any value, and therefore, the rent derivable could only be a less amount. It was also contended that the original rent of Rs.100/was eventually increased to Rs.1,000/- per month and any further increase will be detrimental to the petitioner. 3. On 12.04.2018, this revision was admitted to file and notice was ordered to the respondents. Operation of the order of the courts below was stayed as well. 4. Heard the learned counsel appearing for the petitioner. 5. In **Edgar Ferus v. Abraham Itticheriya [2004 (1) KLT 767]** , this Court laid down the principles governing the fixation of fair rent and the Apex Court affirmed the said decision in **Edgar Ferus v. Abraham Itticheriya [2009 (1) KLT 673 (SC)]** . The Rent Control Court, following the said guidelines, fixed the fair rent at the rate of Rs.10,000/- per month with an annual increase of 5%. The Appellate Authority after considering the appeal and cross objection, refixed the fair rent at Rs.15,000/- per month with an annual hike of 8%. 6. Section 5(1) of the Act reads thus: - - "5. **Determination of Fair Rent.** (1) The Rent Control 4 R.C.Rev.No.121 of 2018 Court shall, on application of the tenant or landlord of a building, fix the fair rent for such building after holding such enquiry as it thinks fit." 7. Section 5(1) makes it clear that once the Rent Control Court is called upon either by the tenant or the landlord to decide the fair rent, it is the responsibility of the Court to fix the fair rent, after holding an enquiry as it thinks fit and, of course, on taking into consideration the evidence let in by the parties, following the guidelines laid down in **Edgar Ferus** (supra) _**.**_ 8. PW1 is the respondent. He deposed in court in detail regarding the rent of various premises in the locality. He has produced Exts.A1 to A3, which are only copies of lawyers notice, postal acknowledgment and reply notice, which have no much bearing on the fact in issue. As pointed out above, as regards the area of the tenanted premises, there is no much dispute. A commissioner was appointed in this case. She filed Ext.C1 report along with a mahazar and rough sketch which are Exts.C1, C1(a) and C1(b). The commissioner measured the area of the property; of course, only from outside, since she was not able to enter the building as it was closed at the time of inspection. On the basis of the measurement, the commissioner reported that the building 5 R.C.Rev.No.121 of 2018 has an area of 3132.18 sq.ft. The petitioner did not dispute the ascertainment of the area by the commissioner. 9. The case of the petitioner is that the rent originally fixed was Rs.100/- and eventually it was increased to Rs.1,000/-. It has come out that rent was re-fixed as Rs.1,000/- in 1984. Hence forth, the rent at the said rate has been paid by the petitioner. In that context, only the requirement of fixation of fair rent and the quantification can be considered. 10. While PW1 deposed in general regarding the institutions of importance and business houses situated in the locality, and on such basis, his quantification of rent as Rs.24,000/-, PWs.2 and 3 gave some specialised details. PW2 is a person conducting business in a nearby area. He stated that he has been paying Rs.2,350/- for an area of 150 sq.ft. in his occupation. PW3 is the owner of the building, where a retail outlet of the beverages corporation is accommodated. The said building was let out for a monthly rent of Rs.17,000/- per month. Ext.C1 report would show that the petition schedule building is situated in a busy area of Alappuzha Town. Of course, construction is old and the facilities available in the building are limited. Taking into account all such aspects, the Rent Control Court applied the guidelines in the 6 R.C.Rev.No.121 of 2018 **Edgar Ferus** (supra) and fixed the rent as Rs.10,000/- per month. 11. The Appellate Authority re-appreciated the evidence in detail. In the view of the Appellate Authority, the area where the petition schedule building is situated is very prominent and the other buildings in the locality fetch more rent. It was after taking such aspects, the Appellate Authority reached a finding that the petition schedule building should fetch a minimum rent of Rs.5/per sq.ft. In that point of view, the Appellate Authority re-fixed the fair rent at Rs.15,000/-. 12. 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 the 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 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 7 R.C.Rev.No.121 of 2018 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 reappreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 13. 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 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 8 R.C.Rev.No.121 of 2018 ## impugned before it. 14. After referring to the aforesaid decisions, the Apex Court reiterated the principle in **Addissery Raghavan v. Cheruvalath Krishnadasan, 2020 (6) SCC 275** in the following words: interfering with this finding of fact, again, without any perversity or misappreciation of evidence by the Appellate Authority would clearly be outside the High Court's ken in its revisional jurisdiction. 15. Having considered the entire materials on record, we are of the view that the said quantification is based on sound principles of law and real factual aspects. We find no reason to interfere with the said finding saying it illegal, irregular or perverse. The revision is devoid of any merit and it is therefore dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr