P. I. Isaac and Others v. Handicrafts Development Corporation of Kerala Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **& THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **THURSDAY, THE 8TH DAY OF JUNE 2023 / 18TH JYAISHTA, 1945 RCREV. NO. 1 OF 2017** **AGAINST THE ORDER IN RCA 69/2014 OF THE RENT CONTROL APPELLATE AUTHORITY & II ADDITIONAL DISTRICT COURT,ERNAKULAM ORDER IN RCP 23/2013 OF III ADDITIONAL MUNSIFF AND RENT CONTROL COURT COURT, ERNAKULAM REVISION PETITIONERS/APPELLANTS/RESPONDENTS IN RCP:** THE HANDICRAFTS DEVELOPMENT CORPORATION OF KERALA LTD. 1 PB NO.171, PUTHENCHANTHAI, THIRUVANANTHAPURAM-695001, MANAGING DIRECTOR THE HANDICRAFTS DEVELOPMENT CORPORATION OF KERALA 2 LTD. PB NO.171, PUTHENCHANTHAI, THIRUVANANTHAPURAM-695001, BY ADVS. SRI.K.ANAND (SR.) SMT.LATHA ANAND SRI.M.N.RADHAKRISHNA MENON ## **RESPONDENTS/RESPONDENTS/PETITIONERS IN RCP:** P.I.ISSAC, AGED 70 YEARS 1 S/O.IPPORAH, PALAL HOUSE, PUTHENCRUZ-682308 P I MATHEW, AGED 68 YEARS 2 S/O.IPPORAH, PALAL HOUSE, PUTHENCRUZ-682308 P I GEORGE, AGED 63 YEARS 3 S/O.IPPORAH, PALAL HOUSE, PUTHENCRUZ-682308 LILLY ITTOOP, AGED 51 YEARS 4 W/O.LATE P I ITTOOP, PALAL HOUSE, PUTHENCRUZ-682308 P I JOSEPH, AGED 32 YEARS 5 S/O.LATE P I ITTOOP, PALAL HOUSE, PUTHENCRUZ. RC Rev.Nos.1 of 2017 & 181 of 2018 2 P I SMITHA, AGED 29 YEARS 6 D/O.LATE ITTOOP, PALAL HOUSE, PUTHENCRUZ. BY ADVS. SRI.S.SREEDEV THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08.06.2023, ALONG WITH RCRev..181/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RC Rev.Nos.1 of 2017 & 181 of 2018 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **& THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURSDAY, THE 8TH DAY OF JUNE 2023 / 18TH JYAISHTA, 1945 RCREV. NO. 181 OF 2018 AGAINST THE ORDER IN RCA 69/2014 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY & II ADDITIONAL DISTRICT COURT,ERNAKULAM ORDER IN RCP 23/2013 OF THE III ADDITIONAL MUNSIFF AND RENT CONTROL COURT,ERNAKULAM REVISION PETITIONERS/APPELLANTS/RESPONDENTS IN RCP:** THE HANDICRAFTS DEVELOPMENT CORPORATION OF KERALA LTD. 1 PB NO. 171, PUTHENCHANTHAI, THIRUVANANTHAPURAM - 695 001. MANAGING DIRECTOR HANDICRAFTS DEVELOPMENT CORPORATION OF KERALA 2 LTD., PB NO. 171, PUTHENCHANTHAI, THIRUVANANTHAPURAM - 695 001. BY ADVS. SRI.K.ANAND (SR.) SMT.LATHA ANAND, SC, HDCK LTD. ## **RESPONDENTS/RESPONDENTS/PETITIONERS IN RCP:** P.I.ISSAC, AGED 70 YEARS 1 S/O. IPPORAH, PALAL HOUSE, PUTHENCRUZ. P.I. MATHEW,AGED 68 YEARS 2 S/O. IPPORAH,PALAL HOUSE, PUTHENCRUZ. RC Rev.Nos.1 of 2017 & 181 of 2018 4 P.I. GEORGE, AGED 63 YEARS 3 S/O. IPPORAH, PALAL HOUSE, PUTHENCRUZ. LILLY ITTOOP, AGED 51 YEARS 4 W/O. LATE P.I. ITTOOP, PALAL HOUSE, PUTHENCRUZ. P.I. JOSEPH, AGED 32 YEARS 5 S/O. LATE ITTOOP, PALAL HOUSE, PUTHENCRUZ. P.I. SMITHA, AGED 29 YEARS 6 D/O. LATE ITTOOP, PALAL HOUSE, PUTHENCRUZ. BY ADV S.SREEDEV THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08.06.2023, ALONG WITH RCRev..1/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RC Rev.Nos.1 of 2017 & 181 of 2018 5 ## **A.K. JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P.** , JJ …................................................... ## **RC Rev.Nos.1 of 2017 & 181 of 2018** …............................................................. Dated this the 8[th] day of June, 2023 ## **ORDER** Mohammed Nias.C.P. J These revision petitions are preferred by the tenants/respondents in RCP No. 23 of 2013 filed by the respondents/landlords under Section 5(1) of the Kerala Buildings (Lease and rent Control) Act, 1965 (for short, 'the Act'). 2. The short facts leading to the above revision petitions are as follows:- On an earlier occasion, a petition for fixation of fair rent at the instance of the landlords, as RCP No.140 of 2004, was filed, wherein, by judgment dated 29.7.2011, the Rent Control Court fixed the fair rent of Rs.17/- per sq. ft. with effect from 15.12.2001, with a provision for enhancement of rent at the rate of 10% every two years. This determination of fair rent has attained finality in the absence of a challenge from the landlord and the tenant. Subsequently, the landlords filed RCP No.23 of 2013. The RC Rev.Nos.1 of 2017 & 181 of 2018 6 Rent Control Court after considering the evidence of PW1 and PW2, Exts A1 and A2 and C1 Commission Report and also considering the locational advantages and the rent in the neighbourhood and the amenities surrounding the building allowed the petition in part by judgment dated 30.6.2014, fixing Rs.80/- per sq. ft with effect from 12.02.2013 again with a provision for enhancement of rent at the rate of 30% every five years. Against the order in RCP No.23 of 2013, the tenants filed RCA No.69 of 2014, The landlords had also filed a cross objection in the said appeal in so far as it did not allow their claim of a rent of Rs 180 per sq ft in full. 3. The appellate court found that the contention of the tenants that the second petition was not maintainable was clearly wrong and also found that Ext.A1 document evidencing the lease of an adjacent property was rightly relied on along with the Commission Report marked as Ext.C1 as well as the evidence of the Advocate Commissioner that showed the prominence of the locality. It also found that no questions were put to the landlord in cross-examination regarding the veracity of Ext.A1 document, which was the lease deed with respect to a nearby building that formed the basis of the fixation of fair rent by the Rent Control Court. and hence, the attack on Ext.A1 document cannot be accepted. IA No.6041 of 2015 was filed in RCA No.69 of 2014 for appointing an Advocate Commissioner to ascertain the status of the building covered by Ext.A1 document. The appellate court followed the principles of law stated in **Edger Ferus** RC Rev.Nos.1 of 2017 & 181 of 2018 7 (supra) and found that the guidelines narrated therein were followed. 4. After considering the appeal as well as the cross objection, the appeal was dismissed, and the cross objection was allowed in part, fixing the rent at the rate of Rs.90/- per sq. ft. and confirming all the other finding of the trial Court. It is against the said judgment in RCA No.69 of 2014, the tenants filed RC Rev.Nos.1 of 2017. Earlier, RCR No.1 of 2017 was dismissed, stating that a revision was preferred only against the judgment in RCA 69 of 2014 and not against the cross-objection filed by the landlords. Later, RP 289 of 2018 was filed against the dismissal of RCR 1 of 2017, and by judgment dated 18.01.2013, the review was allowed. Accordingly, RCR 181 of 2018 was filed against the judgment in so far as it relates to the judgment in the cross objection, and both these revisions are posted before us. 5. We have heard the learned counsel for the petitioners and the learned counsel for the respondents. 6. Learned counsel for the petitioners argued that earlier, RCP for fixation of rent was allowed as per judgment dated 29.7.2011 in RCP No.140 of 2014, wherein the rent was enhanced to Rs.17/- per sq. ft with effect from 15.12.2001, and the said order also contained a stipulation for enhancement to the tune of 10% in every two years. The said order has RC Rev.Nos.1 of 2017 & 181 of 2018 8 become final between the parties, and without challenging the findings in the said case, the present RCP for enhancement of rent to Rs.180/- per sq. ft is not maintainable. The learned counsel also argues that both the trial court and the appellate court gave undue importance to Ext.A1 lease deed, which was created for the purpose of the case and was executed after the filing of RCP No.23 of 2013, and therefore, the said document ought not to have been taken note of. It is also argued that the tenants covered by Ext.A1 lease deed vacated the building on 28.7.2015, which again shows that Ext.A1 was a sham document created only for the purpose of the present proceedings. 7. Learned counsel for the respondents argued that the fair rent fixed was perfectly in order and taking into account the yardsticks as observed by this Court in **Edger Ferus v. Abraham Ittycheria** [2009 (4) KLT 673] It is also argued that there are several commercial important institutions near the tenanted premises. By order dated 30.06.2014, the Rent Controller had allowed the application after analysing the evidence tendered by PWs1 and 2, Exts.A1 and A2, and Ext.C1.Landlords urged that the tenants are in occupation of a total built-up area of 2107 sq. ft facing the M.G. Road, and the fair rent ought to have been fixed at Rs.180/-as prayed for and the order of the Rent Control Court needs interference to the extent it did not allow the petition as prayed for. RC Rev.Nos.1 of 2017 & 181 of 2018 9 8. After hearing the learned counsel on either side, we find that both the authorities had clearly taken into account all the criteria for fixing a fair rent. The argument on the maintainability of the second petition was rightly rejected by both authorities as the second case is neither hit by rejudicata nor by constructive resjudicata or Section 15 of the Act. We also find that the appellate court had independently appreciated the evidence and came to the conclusion that Rs.90/- per sq. ft. was the fair rent as far as the building in question is concerned, more particularly when no evidence was adduced on the part of the tenant to substantiate their contentions on the aspect of fixation of fair rent. We are also told the tenants have already vacated the premises, and the landlords have filed a suit claiming arrears of rent. Under such circumstances, we do not think that the orders impugned call for any interference, accordingly, the above revision petitions are hereby dismissed. ## **Sd/-A.K. JAYASANKARAN NAMBIAR,** **JUDGE** ## Sd/- **MOHAMMED NIAS C.P.** ## **JUDGE** dlk/16.6.2023