P. M. Ismail v. Abbas and Abdul Saleem

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 14TH DAY OF JUNE 2017/24TH JYAISHTA, 1939** **RCRev..No. 150 of 2017** **----------------------** **AGAINST THE JUDGMENT IN RCA 25/2012 OF THE RENT CONTROL APPELLATE AUTHORITY & ADDITIONAL DISTRICT JUDTE,NORTH PARAVUR DATED 17-11-2016.** **AGAINST THE ORDER IN RCP 2/2011 OF THE RENT CONTROLLER/ MUNSIFF COURT, ALUVA DATED 31-10-2012.** ## **REVISION PETITIONER/APPELLANT/PETITIONER:** **----------------------------------------** **P.M. ISMAIL , S/O.MAMMU, M/S.BOMNBAY HARDWARES, VIII/9, (OLD NO.XVIII/462), PALACE ROAD, ALUVA-683 101.** ## **BY ADV. SRI.S.B.PREMACHANDRA PRABHU** **RESPONDENTS/RESPONDENTS/RESPONDENTS:** **-----------------------------------** **1. ABBAS , S/O.HYDROSE, THEMBADATH BUILDING, TASS ROAD, ALUVA KARA, ALUVA WEST VILLAGE, NOW RESIDING AT THEMBADATH HOUSE, MANA LANE, THOTTAKKATTUKARA, ALUVA-683 108.** **2. ABDUL SALEEM @ SALIM S/O.HYDROSE, TASS ROAD, ALUVA KARA, ALUVA WEST VILLAGE, NOW RESIDING AT THEMBADATH HOUSE, MANA LANE, THOTTAKKATTUKARA, ALUVA-683 108.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## _**“C.R.”**_ ## _**K. HARILAL & P. SOMARAJAN., JJ.**_ _**--------------------------------------------------------R.C.R. No.150 of 2017-E ---------------------------------------------------------Dated this the 14[th] day of June, 2017**_ ## _**ORDER**_ ## _**Harilal, J.**_ The question that emerges for consideration in this Rent Control Revision is, whether there is any illegality or impropriety in fixing the fair rent at a rate more than the existing rent, considering the plea of the landlords, in an application filed by the tenant seeking fixation of fair rent lesser than the existing rent? 2. The revision petitioner is the tenant, who filed an application seeking fixation of rent before the Rent Control Court. In an earlier round of litigation, under Sec.11(3) of the Kerala Buildings (Lease and _**R.C.R. No.150 of 2017**_ -: 2 :- Rent Control) Act, 1965 (for short 'the Act'), which culminated in C.R.P. No.447/2003 filed before this Court, this Court remanded the Rent Control Petition to the Rent Control Court for de novo enquiry and provisionally fixed the rent at the rate of `7,500/- per month till the Rent Control Court fixing the fair rent and the parties were given liberty to move for the same. Pursuant to the aforesaid fixation of enhanced rent, the tenant filed the said application seeking reduction of the said rent. He contended that the building is old fashioned and dilapidated and when comparing with the facilities and convenience available to those buildings situated in the locality, the rate of rent provisionally fixed by this Court is not fair rent. It is also contended that the building is not situated in a commercially important area, as contended by the landlords. 3. The landlords contended that the plaint schedule building is located in a most commercially _**R.C.R. No.150 of 2017**_ -: 3 :- important and busy junction in Aluva. Private bus stand, palace road etc., are starting from the junction where the petition schedule building is situated. Other institutions offering service to the public. Banks, textiles etc., are very near to the petition schedule room. Even though the building is old, it is not dilapidated and the tenant has not raised any complaint so far before the Accommodation Controller alleging lack of facilities or inconvenience. Now, the Aluva Municipality fixed the fair rent of the Municipal Complex, situated very near to the petition schedule building, at the rate of `40/per sq. ft. Having regard to the area, location, facilities and convenience available to the tenant, fair rent is to be fixed at the rate of `40/- per sq. ft. 4. On the aforesaid rival contentions, both parties adduced oral and documentary evidence and after considering the evidence available, on record, the Rent Control Court fixed the fair rent at the rate of `30/- per sq. ft. Feeling aggrieved, the tenant _**R.C.R. No.150 of 2017**_ -: 4 :- had preferred an appeal before the Appellate Authority and after re-appreciating the evidence, on record, the Appellate Authority reduced the rant to `25/- per sq. ft. 5. This Rent Control Revision is filed challenging the re-fixation of the fair rent by the Appellate Authority on the ground that both the Rent Control Court as well as the Appellate Authority fixed the fair rent at a rate more than the existing rent provisionally fixed by this Court, considering the contentions raised by the landlords, in the application seeking reduction of the existing rent filed by the tenant. 6. Heard Sri. S.B. Premachandra Prabhu, the learned counsel for the revision petitioner/tenant. 7. It is contended that the courts below ought not to have enhanced the fair rent to a rate more than the amount existed at the time of filing the petition, in an application filed by the tenant seeking reduction of fair rent. In view of the submissions _**R.C.R. No.150 of 2017**_ -: 5 :- made at the Bar, the question raised above emerges for consideration of this Court. 8. Let us have a look at the relevant provision which is extracted below: ## “ **5. Determination of fair rent.--** The Rent Control Court shall, on application of the tenant or landlord of a building, fix the fair rent of such building after holding such enquiry as it thinks fit”. Interpreting the aforesaid provision, a Division Bench of this Court in _**Edger Ferus v. Abraham Ittycheira [2004 (1) KLT 767]**_ held as follows: “6. The Rent Control Court can while resolving any rent control dispute on an application either by the landlord or tenant examine whether the rent is static and requires revision and fix fair rent accordingly permitting the parties to adduce evidence.” This decision stands confirmed by the Supreme Court in _**Edger Ferus v. Abraham Ittycheira [2009 (4)**_ _**R.C.R. No.150 of 2017**_ -: 6 :- _**KLT 673 (SC)].**_ On a close reading of the aforesaid provision, in the light of the decision referred above, it is discernible that an enquiry is contemplated under the said provision, for fixing the fair rent, on the basis of the evidence adduced by the landlord and tenant and the general guidelines laid down in _**Edger Ferus' case,**_ untrammelled by the quantum of amount, claimed by the landlord or sought to be fixed by the tenant. The determination must be aimed at fixing 'fair rent' and not for fixing one among the rival claims. The Rent Control Petition seeking fixation of fair rent may be filed by either the landlord or the tenant and whoever be the petitioner, there is no limit for fixing the quantum of fair rent at an amount notwithstanding, the rival claims. In short, one Rent Control Petition filed by either the landlord or tenant is sufficient for fixing fair rent, considering the rival claims of both the landlord and the tenant. _**R.C.R. No.150 of 2017**_ -: 7 :- 9. The above view is supported by a decision of this Court in _**Devassy v. Joseph [1969 KLT 541]**_ wherein this Court held that “fair rent is not always what is fair between a particular landlord and his tenant, considering their relative economic circumstances. Fair rent is not what a tenant has acquiesced in for reasons of prudence; but what the law prescribes to be fair in spite of his consent to pay the higher rent”. 10. In the above view, we find that we find that there is no illegality in fixing the fair rent at a rate higher than the existing rate, considering the contentions raised by the landlords, in an application filed by the tenant, seeking reduction of the existing rent. 11. Going by the impugned judgment, under challenge, it could be seen that the Rent Control Court has fixed the fair rent, on the basis of the parameters laid down by this Court in the above _**R.C.R. No.150 of 2017**_ -: 8 :- decision. Moreover, in the impugned judgment passed by the lower Appellate Authority, it is found that the rent fixed by the Rent Control Court is not exorbitant; though reduced `5/- from the rate fixed by the Rent Control Court. 12. In the above analysis, we find that there is no illegality or impropriety in the impugned judgment passed by the Appellate Authority. Therefore, this Rent Control Revision is dismissed. _**Sd/(K.HARILAL, JUDGE)**_ Sd/- _**(P. SOMARAJAN, JUDGE)**_ _**Nan/ //true copy//**_ _**P.S. To Judge**_