P.T. James v. Francis T. Chandy

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MR. JUSTICE EASWARAN S.** **WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 RCREV. NO. 98 OF 2024** **AGAINST THE JUDGMENT DATED 30.03.2023 IN RCA NO.19 OF 2016 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT & SESSIONS COURT), THRISSUR AGAINST THE ORDER DATED 30.10.2015 IN RCP NO.92 OF 2013 OF RENT CONTROLLER (PRINCIPAL MUNSIFF COURT), THRISSUR** ## **REVISION PETITIONER/APPELLANT/RESPONDENT :** **P.T.JAMES, AGED 62 YEARS S/O. PALAMITTAM THOMAS, ST.MARY'S STREET, KURIACHIRA DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK-, PIN - 680026** **BY ADVS. K.M.MUHAMMED HUSSAIN T.K.VIPINDAS** ## **RESPONDENT(S)/RESPONDENT/PETITIONER :** **FRANCIS T.CHANDY,** **AGED 62 YEARS S/O. CHANDY THIMATHY, CHANDY HOUSE , MISSION QUARTERS ,THRISSUR -, PIN - 680001** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22.05.2024, ALONG WITH RCRev..176/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.R Nos.176 of 2023 & 98 of 2024 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MR. JUSTICE EASWARAN S.** **WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 RCREV. NO. 176 OF 2023** **AGAINST THE JUDGMENT DATED 30.03.2023 IN RCA NO.30 OF 2016 OF RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT COURT-I), THRISSUR ARISING OUT OF THE ORDER DATED 30.10.2015 IN RCP NO.92 OF 2013 OF THE RENT CONTROLLER (I ADDITIONAL MUNSIFF COURT) ,THRISSUR** ## **REVISION PETITIONER/APPELLANT/PETITIONER :** **FRANCIS T.CHANDY AGED 62 YEARS S/O. CHANDY THIMATHY, CHANDY HOUSE, MISSION QUARTERS, CHEMBUKKAVU, THRISSUR ., PIN - 680001** **BY ADVS. P.B.SUBRAMANYAN P.B.KRISHNAN SABU GEORGE B.ANUSREE MANU VYASAN PETER MEERA P.** ## **RESPONDENT/RESPONDENT/RESPONDENT :** **P.T.JAMES AGED 63 YEARS S/O. PALAMATTAM THOMAS, ST.MARY'S STREET, KURIACHIRA DESOM, CHIYYARAM VILLAGE, THRISSUR., PIN - 680006** R.C.R Nos.176 of 2023 & 98 of 2024 3 **BY ADVS.** **K.M.MUHAMMED HUSSAIN T.K.VIPINDAS(K/528/1995)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22.05.2024, ALONG WITH RCRev..98/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.R Nos.176 of 2023 & 98 of 2024 4 ## **AMIT RAWAL & EASWARAN S. , JJ. ------------------------R.C.R Nos.176 of 2023 & 98 of 2024** **----------------------------------Dated this the 22nd day of May 2024** ## **ORDER** ## AMIT RAWAL, J. This order of us shall dispose of two Rent Control Revisions; R.C.R No.173 of 2023 by the landlord against the judgment of the Rent Controller and the Appellate authority and R.C.R. No.98 of 2024 on behalf of the tenant. 2. Succinctly the facts in brief are as follows: 2.1 The tenant Sri.P.T. James, who is the petitioner in R.C.R. No.98 of 2024 and respondent in R.C.R. No.176 of 2023 will be referred as the tenant and Sri.Francis T. Chandy, who is the petitioner in R.C.R.No.176 of 2023 and respondent in R.C.R. No.98 of 2024 will be referred as the landlord. 2.2 The landlord instituted a petition in 2013 for claiming the fixation of fair rent at the rate of Rs.15,000/- on the premise that the area in occupation of the tenant is 1000 square feet and was R.C.R Nos.176 of 2023 & 98 of 2024 5 inducted as a tenant in 2004 at the rate of Rs.3000/- with 15% increase every three years. At the time of the institution of the rent petition, the enhanced rate of rent was Rs.5000/-. Before the Rent Controller, landlord was supposed to examine the witnesses and place on record the lease deeds of the adjoining area for assisting the Rent Controller for arriving at a just and equitable decision, but instead, had brought on record fair value certificate of the land and not of the building and the Commissioner’s report. On the basis of the location and the area, learned Rent Controller allowed the rent petition and fixed the rent at the rate of Rs.10,000/-. 2.3. Being aggrieved by the finding, two appeals were preferred before the appellate authority as R.C.A. 13 of 2016 on behalf of the landlord and R.C.A. No.19 of 2016 on behalf of the tenant; both the appeals have been dismissed. 3. Mr. Subramaniam, learned counsel appearing on behalf of the landlord, submitted that the learned Rent Controller while adjudicating the rent petition has not taken into consideration the ratio decidendi culled out by the Full Bench of this Court in **Rahul v. Sudheesh** [2023 (2) KLT 771 (FB)] for, it failed to add the clause of R.C.R Nos.176 of 2023 & 98 of 2024 6 periodical increase of three years at a certain percentage. It is on that account, the appeal and revision petition has been filed. 4. On the contrary, Mr.Vipin Das, the learned counsel appearing on behalf of the tenant contended that both the courts have abdicated in allowing the rent petition and dismissing the appeal for not noticing the fact that the landlord has failed to bring on record any direct and cogent evidence, except the two documents which cannot be a basis for determining the rate of rent and the rent petition was liable to be dismissed. 5. We have heard the learned counsel for the parties and perused the paper books. 6. Paragraph No.4 of the judgment relied on by the learned counsel for the landlord, **Rahul v. Sudheesh** [2023 (2) KLT 771 (FB)] reads as under: 4. By the order dated 08.01.2016, this Rent Control Petition was directed to be placed before the Honourable the Chief Justice, to place the matter before a Full Bench. Paragraphs 2 to 4 of that order read thus; “2. One of the issues that arise for consideration in this revision petition is whether, while fixing the fair rent, the Rent Control Court can direct that the rent fixed by it R.C.R Nos.176 of 2023 & 98 of 2024 7 will stand increased periodically even without a fresh application for fixation of fair rent being filed. While Sri P.A. Harish, learned counsel appearing for the tenant submits, relying on the decision of a Division Bench of this court in Kadar Pillai v. Goven Travels [2014 (4) KLT 593] that periodical enhancement cannot be granted by the Rent Control Court while fixing the fair rent, learned counsel appearing for the respondents submits, relying on the decisions of two Division Benches of this Court in Sreekumaran Nair v. V.A. Ponnuswami Chettiyar [2010 (3) KLT 444] and George v. T.K. Saidu Muhammed [2013 (2) KLT 513] that such periodical enhancement is permissible. Learned counsel appearing on both sides also invited our attention to the recent decision of a Division Bench of this court in Rajesh R. Kartha v. K.A. Ismail (2016 (1) KLT SN 85 (C.No.91)= [2015 (4) KHC 408] wherein the Division Bench has granted only a quinquennial enhancement of fair rent by 15%. 3. A reading of the decision of the Division Bench in Kadar Pillai v. Goven Travels (supra) discloses that it was after noticing the decision of the Division Bench in Sreekumaran Nair v. V.A. Ponnuswami Chettiyar (supra) that the Division Bench held that the cause of action to fix fair rent is a recurring cause of action depending upon the factors that warrant fixation of the fair rent. It was held that in an extreme case, the fair rent so fixed may have to be reduced on account of the decrease in market transactions, change of main avenue, shift of commercial R.C.R Nos.176 of 2023 & 98 of 2024 8 activities, diversion of main road, etc. and therefore in such a situation it is not safe to award periodical increase. The Division Bench thereafter proceeded to hold that in the case before it no reasons have been assigned by the Rent Control Court to grant periodical enhancement and accordingly affirmed the decision of the Appellate Authority which had set aside the periodical enhancement granted by the Rent Control Court. The Division Bench, which decided Rajesh R. Kartha v. K.A. Ismail (supra) has not referred to the decision of the Division Bench in Sreekumaran Nair v. V.A. Ponnuswami Chettiyar (supra). In view of the conflict of judicial opinion as regards the question whether the Rent Control Court while fixing the fair rent can grant periodical increase in the fair rent so fixed, we are of the opinion that the said issue requires consideration by a Full Bench of this Court, as otherwise the Rent Control Courts/Rent Control Appellate Authorities will find it difficult to decide the question whether periodical increase in the fair rent can be granted while exercising jurisdiction under section 5(1) of the Act. 4. There is also yet another reason why we are inclined to refer this revision petition to a Full Bench for consideration. The Apex Court has in Mohammad Ahmad and another v. Atma Ram Chauhan and others (2011(2)KLT SN.98 (C.No.120) SC= [AIR 2011 SC 1940] while laying down the guidelines and norms to be followed in litigations between landlord and tenant, inter R.C.R Nos.176 of 2023 & 98 of 2024 9 alia stipulated that if the present and prevailing market rent assessed and fixed between the parties is paid by the tenant, then the landlord shall not be entitled to bring any action for his eviction at least for a period of five years. In other words, it was stipulated that for a period of five years the tenant shall enjoy immunity from being evicted. The said stipulation was pressed into service before the Division Bench which decided Subair and others v. C.P.Kunhami Kunjhimariyam and others (2015 (4) KLT SN.137 (C.No.165) = [2015 (5) KHC 260] wherein, the Division Bench to which one of us (P.N.Ravindran, J.) was a party, held that fair rent was fixed with effect from the date of the petition and by the time the petition for eviction was filed, the said period of five years had expired and therefore, no reliance can be placed on the decision of the Apex Court in Mohammad Ahmad and another v. Atma Ram Chauhan and others (supra) to contend for the position that the petition for eviction which was filed within a period of five years from the date of the order fixing the fair rent, is not maintainable. It is relevant in this context to note that if the guideline laid down by the Apex Court in the aforesaid decision is pressed into service, a tenant of a building inrespect of which fair rent has been fixed can with impunity sub-let the tenanted premises, cause material alteration and damage to the building, refuse to pay even the fair rent fixed by the Rent Control Court and close down his business and in such eventualities, the landlord will be disabled from instituting a petition for R.C.R Nos.176 of 2023 & 98 of 2024 10 eviction for a period of five years. There may also be cases where a dire need for own occupation may arise after the fair rent is fixed. Such being the situation, we are of the opinion that the said question also deserves to be considered by a Full Bench of this court. The question whether Sections 5, 6 and 8 of the Act which were declared to be unconstitutional and void by a Division Bench of this court in Issac Ninan v. State of Kerala [1995 (2) KLT 848] can be brought back to the statute by a court exercising the power of review or by a bench of co-ordinate strength on the reasoning that unless all or any of the provisions of the Act are thus restored, the Rent Control Courts will not be in a position to discharge their duties, has also been referred to a Full Bench of this Court as per the reference order passed on 11.9.2015 in R.C.R.Nos.203 and 348 of 2013.” 7. No doubt the landlord has miserably failed to place on record the lease deeds of the adjacent area for determining the fair value of the rent which could have been helpful for the court below, but the reasoning assigned by the Rent Controller in arriving at the rent rate of Rs.10,000/- is based on the location and the area in occupation of the tenant. We find that the findings are perfectly legal and justified and do not call for any interference, except for modification in view of the observations recorded in **Rahul** (Supra). R.C.R Nos.176 of 2023 & 98 of 2024 11 8. Accordingly, both the Rent Control Revisions are disposed of directing that the tenant shall continue to pay the rent at the rate of Rs.10,000/- with a periodical increase of 15% after every three years and shall pay the arrears and continue to pay the increase within a period of two months from the date of receipt of a certified copy of this order. Sd/- ## **AMIT RAWAL, JUDGE** Sd/- **EASWARAN S., JUDGE** NS