RCR 111 of 2020 (R.C.R.No.111 of 2020) - Rappai @ Raphel vs Dixon Davis (formerly Sixon)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944** **RCREV. NO. 111 OF 2020** **AGAINST THE ORDER IN R.C.A No.96 OF 2016, DATED 21.12.2018, ON THE FILES OF ADDITIONAL DISTRICT JUDGE, IRINJALAKUDA ARISING OUT OF THE ORDER IN R.C.P.No.10 OF 2013, DATED 31.03.2016 ON THE FILES OF RENT CONTROL COURT, IRINJALAKUDA** ## **PETITIONER/RESPONDENT/PETITIONER:** **RAPPAI @ RAPHEL AGED 69 YEARS S/O.KURIAPPAN, KUNDUKULAM HOUSE, VELUPPADAM DESOM, VARANDARAPILLY VILLAGE, MUKUNDAPURAM TALUK. BY ADVS. M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA** ## **RESPONDENT/APPELLANT/RESPONDENT:** **'SIXON'(NAME CORRECTED) AGED 40 YEARS S/O.DAVIS, VALPPATTUKARAN HOUSE, THORAVU DESOM,THRIKKUR VILLAGE, MUKUNDAPURAM TALUK.680683. (THE NAME "SIXON" DELETED AND SUBSTITUTED BY "DIXON" AS PER ORDER DATED 7/3/2022 IN IA NO.2/2022 IN RCR.111/2020) BY ADVS. MAHESH V.MENON GOVERNMENT PLEADER** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.R.No.111 of 2020 ## **O R D E R** ## Ajithkumar, J. This Revision Petition filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, arose from the judgment of the Rent Control Appellate Authority (Additional District Judge), Irinjalakuda, in R.C.A.No.96 of 2016. The appeal along with a batch of connected appeals were allowed by the Appellate Authority as per its common judgment dated 21.12.2018. The Rent Control Court (Munsiff), Irinjalakuda, as per its common order dated 31.03.2016 in R.C.P.Nos.4, 5, 7, 8, 9 and 10 of 2013, fixed fair rent under Section 5(1) of the Act in respect of the petition schedule shop rooms involved in those rent control petitions. The Rent Control Court fixed fair rent at Rs.10 per sq.ft., along with an annual increase of 5%. The Appellate Authority modified that order and fixed fair rent at Rs.5/- per sq.ft., along with an annual increase of 10%. Aggrieved by the said finding of the Appellate Authority, the revision petitioner, who is the landlord, filed this Revision Petition. 3 R.C.R.No.111 of 2020 2. On 04.08.2020, this Court admitted the Revision Petition and directed notice to the respondent. Despite sending notice on several occasions, the same could not be served on the respondent. Since the notice sent by speed post was returned with an endorsement “not known”, this Court on 17.02.2022 directed to take out notice to the respondent by Special Messenger. It was specifically directed that in case the respondent is not available in the address shown in the rent control revision petition, the Special Messenger should serve notice on him in the tenanted premises, where he has been conducting a steel fabrication workshop. The Special Messenger returned the notice unserved with a report that the name of the respondent was 'Dixon Davis' and not 'Sixon'. The Special Messenger produced along with his report a copy of the Aadhaar card handed over to him by Sri.Dixon Davis. In the light of the said report, the petitioner has filed I.A.No.2 of 2022 for carrying out correction of the name of the respondent as 'Dixon Davis' in the cause title of the Rent Control Revision petition and the same was allowed on 4 R.C.R.No.111 of 2020 07.03.2022. When notice was sent to the respondent in the corrected address, the same was also returned with endorsement “not known”. The said circumstances compelled this Court to direct the Superintendent of Police (Rural), Thrissur to ensure personal appearance of the respondent before this Court on 06.04.2022. Accordingly, on 06.04.2022 the respondent, Dixon Davis, appeared before this Court in person. Advocate Mahesh V.Menon filed Vakalath for and on behalf of the respondent also. An affidavit explaining the facts and circumstances in which he failed to receive the notice has been filed by the respondent. The recalcitrant attitude of the respondent in the above respect will be dealt with a little later. 3. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. 4. As per the common order dated 31.03.2016 the Rent Control Court fixed fair rent for the petition schedule shop room as Rs.3,000/- per month with an annual increase of 5%. In the appeal, the Appellate Authority after re- 5 ## R.C.R.No.111 of 2020 appreciation of evidence, took a different view and refixed the fair rent. The Appellate Authority, holding that the increase made by the Rent Control Court was disproportionate, decided to make a 75% increase to the existing rent, thereby fixing fair rent at correspondingly enhanced rate. The fair rent so fixed by the Appellate Authority for the petition schedule shop room is Rs.1,522/-. The rate of increase was also modified to fix at 10% increase every year. 5. In **Edgar Ferus v. Abraham Itticheriya [2004 KHC 123 : 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 KHC 5126 : 2009 (4) KLT 673(SC)]** . The Rent Control Court, following those guidelines, fixed the fair rent at the rate of Rs.10/- per sq.ft. to all the petition schedule shop rooms, uniformly. However, the Appellate Authority did not agree with that finding. The Appellate Authority concurred with the findings of the Rent Control Court that these rooms are in an important locality, that area 6 ## R.C.R.No.111 of 2020 has considerable commercial importance and several institutions of importance are functioning within 100 meters distance. However, after observing that the other buildings/rooms in the nearby locality for which rent at higher rate is being paid by the respective tenants have no comparison with these rooms in terms of age, facilities, etc. and the time gap between date of rent agreements and the rent control petitions refixed the rent at Rs.5/- per sq.ft. 6. The learned counsel appearing for the revision petitioner would submit that the evidence on record was not considered by the Appellate Authority in the proper perspective lest it would not have set at naught the well reasoned finding of the Rent Control Court. 7. Section 5(1) of the Act reads thus: "5. Determination of Fair Rent.- (1) The Rent Control 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." 8. Section 5 makes it clear that once the Rent Control Court is called upon either by the tenant or the landlord to 7 ## R.C.R.No.111 of 2020 decide the fair rent, it is the responsibility of the Court, after holding an enquiry as it thinks fit in the facts and circumstances of the case, to fix the fair rent. The Court shall take into consideration the evidence let in by the parties and relevant to the issue and fix the fair rent, following the guidelines laid down in **Edgar Ferus (supra)** , which are the following: “7. Rent Control Court while fixing fair rent could take note of the inflation and resultant reduction in the purchasing power of money, variations in the cost of living index in the area since commencement of the lease, demand for accommodation and availability of the buildings in the locality. 8. The cost of construction of the building including cost of labour and building materials, capital value of the entire premises in the enjoyment of the tenant inclusive of the value of the land under the actual enjoyment of the tenant whether immediately appurtenant to the building or otherwise, type of construction, locational importance, situations of the tenanted premises, ground floor, first floor etc. and other advantages and amenities, such as access to places of public importance 8 ## R.C.R.No.111 of 2020 like bus stand, railway station, educational institution, hospitals etc. would also be guiding factors. 9. The Rent Control Court will also take into consideration the prevailing rent in the locality for the same and similar accommodation. The type of construction, the amenities, general or special provided in the building, the open land attached to the building, whether residential or non residential are also to be borne in mind. 10. Annual rental value of the building at the time of filing the application for fair rent may also be taken as a guiding factor along with others. 11. Revision or fresh imposition of municipal taxes, cess, rate in respect of other increase in the charge of electricity or water consumption by the tenant and also by the landlord and increase on account of sufficient repairs would also be taken note of by the Rent Control Court. 12. 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.” 9 ## R.C.R.No.111 of 2020 9. The Rent Control Court, after considering the evidence on record, came to the conclusion that in the light of the commercial importance of the area, where the petition schedule shop rooms situate, the proximity of the rooms to the various institutions of importance, and such other relevant aspects, which can be taken into account as allowed in the guidelines enunciated in **Edgar Ferus (supra)** concluded that a minimum of Rs.10/- per sq.ft. would be the fair rent for the petition schedule shop rooms. The main reason on which the Appellate Authority to dispel the said finding of the Rent Control Court is given in paragraph No.37 of its judgment, which reads,- “37. The rent control petitions were filed almost one year and two months after the execution of rent deeds. There will not be much difference in the commercial importance and cost of living within such a short period. In the said circumstances, the claim of the landlord that the rooms which he had agreed to rent out for rents ranging from Rs.790/- to 870/- would fetch Rs.5,400/- within the span of one year is difficult to 10 ## R.C.R.No.111 of 2020 digest.” 10. Even before the petitioner purchased the petition schedule shop room, the respondent was the tenant in the petition schedule shop room. After purchase, the petitioner entered into a new agreement with the respondent-tenant on 22.12.2011. Rate of rent of the said room was agreed to in the said document. It is seen that on considering the rent then in force parties have agreed to the rate and stated the same in the rent agreement. The Appellate Authority did not take into account the fact that the rent was agreed to between parties in such circumstances and the same has no nexus with the fair rent. 11. PW1, the petitioner, deposed in detail regarding the cost of the land where the building is situate, cost of construction and such other details before the court. PW2 is the Manager of Irinjalakuda Town Co-preoperative Bank. He deposed that the building having 1855 sq.ft. area in the occupation of the Bank was originally availed for a rent at the rate of Rs.13 per sq.ft. and the same was later enhanced to 11 R.C.R.No.111 of 2020 Rs.17 per sq.ft. 12. PW3 is the Branch Manager of the South Indian Bank Ltd., Ollaur branch. He deposed that an ATM counter of the bank is housed in a building situated near to the petition schedule shop room. It has an area of 78 sq.ft. and its rent is Rs.7,000/- per month. Of course, it being a small area with more proximity to the public road, the said rate may not be comparable one with the rent which may fetch to the petition schedule shop room. But the rent being paid to the building in occupation of Irinjalakuda Town Co-operative Bank certainly has comparability to the petition schedule shop rooms. 13. RW1, the respondent in R.C.P. No. 8 of 2013 deposed regarding the details about the schedule shop rooms. His version is that having the rent been fixed in 2011, there is no reason or necessity to revise it. He has given physical features of the all the rooms as well. 14. The petition schedule shop room has an area of 300 sq.ft.; whereas the area of the bank building is 1855 sq.ft. In the light of the said difference in the area, facilities 12 R.C.R.No.111 of 2020 available to the bank building and also it being a recent construction, the rent fetched to that building may not be the appropriate rent for the petition schedule shop room. But it certainly has a bearing while fixing the fair rent of the petition schedule shop room. 15. The petition schedule shop room is situated in a building abutting the public road. It is not a new construction and the facilities are limited. However, the institutions of importance and such other relevant aspects certainly give commercial importance to the petition schedule shop room. Therefore, it cannot be said that the rent agreed to between the parties on 22.12.2011 has a decisive bearing on the fair rent. Further, as per the guidelines in **Edgar Ferus (supra),** the agreed rent has no much relevance while fixing the fair rent. Taking into account all such aspects we are of the view that the Appellate Authority went wrong in interfering with the finding of the Rent Control Court. 16. Different rates were agreed for the petition schedule shop room and the adjoining rooms. But when fair 13 ## R.C.R.No.111 of 2020 rent is fixed for different rooms in the same building, having the same area and similar facilities, it is only appropriate to fix a uniform rate. Therefore, the view taken by the Appellate Authority that the fair rent shall be fixed corresponding to the rent agreed to between the parties also cannot be sustained. 17. Therefore, on reversing the findings of the Appellate Authority, we restore the findings of the Rent Control Court. The fair rent for the petition schedule shop room is accordingly fixed at Rs.10 per sq.ft. We are of the view that the periodical hike shall be at the rate of 10% in every two years. These revisions petitions are therefore allowed. Fair rent for the petition schedule shop room is fixed at Rs.10 per sq.ft. with a hike of 10% in every two years. 18. R.C.P.No.10 of 2013 was filed stating the name of the respondent as Sixon, S/o Valappattukaran Davis and the address Valppattukaran House, Thoravu Desom, Thrikkur Village, Mukundapuram Taluk. It is seen that the respondent received notice on that petition, entered appearance and contested the matter. He has filed R.C.A.No.96 of 2015 before 14 R.C.R.No.111 of 2020 the Appellate Authority with the same name and address. Obviously, all the pleadings and affidavits in the rent control petition as well as the appeal, were filed and sworn to by him with the same name and address. Things being so, when the Special Messenger approached him and tendered a notice, he could well realise that it was relating to the rent control proceedings in which he filed the appeal before the Appellate Authority. There was absolutely no rhyme or reason in his refusing to receive the said notice stating that the name was stated differently; though the address was mentioned as stated in the Rent Control Petition and the Rent Control Appeal. His act is contumacious, especially since the Special Messenger tendered the notice reaching at the tenanted premises, where he has been conducting business. In view of the said irresponsible and recalcitrant attitude of the respondent, much judicial time has been wasted and much inconvenience caused to the revision petitioner. Although it is a case where necessary punitive action is required to be initiated against the respondent, we refrain from doing so. 15 ## R.C.R.No.111 of 2020 However, it is quite appropriate and necessary to order him to pay exemplary costs to the petitioner. We hold that the respondent is liable to pay a cost of Rs.10,000/- (Rupees ten thousand only) to the revision petitioner. 19. The Revision Petition is allowed accordingly and the order of the Rent Control Court is restored. The costs as stated above shall be paid by the respondent to the petitioner within a period of two months from today. Sd/- ## **ANIL K.NARENDRAN JUDGE** Sd/- ## **P.G. AJITHKUMAR JUDGE** dkr