R.C.Rev. Nos. 248 of 2018 and 212 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 4[TH] DAY OF JANUARY 2023 / 14TH POUSHA, 1944 RCREV. NO. 248 OF 2018** **AGAINST THE ORDER/JUDGMENT IN RCP NO.26 OF 2013 OF MUNSIFF COURT, NORTH PARAVUR CONCURRING WITH THE COMMON ORDER IN RCA NO.7 OF 2015 DATED 28.02.2018 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR** ## **PETITIONER/APPLLANT/PETITIONER:** **GOVINDAS PRABU, AGED 36, S/O. LATE GOKULADAS PRABU, KANNUMOARABIL, PARAVUTHARA MURI, PARAVUR VILLAGE, PARAVUR TALUK, REPRSENTED BY HIS POWER ATTORNEY HOLDER AND MOTHER LALITHA. SRI.P.VISWANATHAN SMT.M.J.ANOOPA SMT.NIMITHA SALIM SRI.SHIBU JOSEPH SRI.SUNIL N.SHENOI** ## **RESPONDENT/RESPONDENT/RESPONDENT:** **BABU, AGED ABOVE 55, S/O.IBRAHIM, KANJIRAPARAMBIL, VEDIMARA, PARAUTHARA MURI, MANNAM P.O, PARAVUR VILLAGE, PARAVUR TALUK - 683513(BABU, AGED ABOUT 55, S/O.IBRAHIM, PMC II/438, R.K.G BUILDING, K.M.K JUNCTION, NORTH PARAVUR, PIN CODE 683513)** **ADV.K.S. RAJESH ADV.M. SHAJU PURUSHOTHAMAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04.01.2023, ALONG WITH RCRev..212/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev.Nos.248 of 2018 & 212 of 2019 -: 2 :- **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 4[TH] DAY OF JANUARY 2023 / 14TH POUSHA, 1944 RCREV. NO. 212 OF 2019** **AGAINST THE ORDER/JUDGMENT DATED 29.02.2016 IN RCP NO.22 OF 2014 OF MUNSIFF COURT, NORTH PARAVUR CONCURRING WITH THE COMMON ORDER IN RCA NO.17 OF 2016 DATED 30.11.2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, NORTH PARAVUR / I ADDITIONAL MACT, NORTH PARAVUR** ## **PETITIONER/APPELLANT/PETITIONER:** **MOHANADASA PRABHU, AGED 70 YEARS, S/O.RAMADAS PRABHU, KANNAMPARAMBIL, PARAVUTHARA MURI, PARAVUR VILLAGE, PARAVUR TALUK, PIN CODE-683513.** **BY ADVS. SHIBU JOSEPH SRI.SUNIL N.SHENOI SRI.AJITH VISWANATHAN SHRI. SAYED MANSOOR BAFAKHY THANGAL SHRI.BALRAM S.A.** ## **RESPONDENT/RESPONDENT/RESPONDENT:** **C.S.UNNI, AGED 50 YEARS, S/O.SANKARAN, II/458, R.K.G. BUILDING, KMK JUNCTION NORTH PARAVUR, PIN CODE683513, RESIDING AT CHILLIKKATTU HOUSE, CHERAI MURI, PALLIPURAM VILLAGE, PARAVUR TALUK, PIN CODE-683514** R.C.Rev.Nos.248 of 2018 & 212 of 2019 -: 3 :- **BY ADVS. SRI.SOORAJ K.ABRAHAM SRI.VISHNU BABU** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04.01.2023, ALONG WITH RCRev..248/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev.Nos.248 of 2018 & 212 of 2019 -: 4 :- ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** ## **-----------------------------------------------** ## **R.C.Rev. Nos.248 of 2018 and 212 of 2019** ## **-----------------------------------------------** ## **Dated this the 4[th] day of January, 2023.** ## **O R D E R** ## **P.B.Suresh Kumar, J.** Among these revisions, R.C.R.No.248 of 2018 is directed against the judgment in R.C.A. No.7 of 2015 and R.C.R No.212 of 2019 is directed against the judgment in R.C.A. No.17 of 2016 on the files of the Rent Control Appellate Authority, North Paravur. R.C.R.No.248 of 2018 arises from R.C.P. No.26 of 2013 on the files of the Rent Control Court, North Paravur and R.C.R.No.212 of 2019 arises from R.C.P. No.22 of 2014 on the files of the very same court. The said proceedings were instituted under Section 5(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) for fixation of fair rent in respect of two premises in the ground floor of a building situated in North Paravur town. 2. The area of the premises which is the subject R.C.Rev.Nos.248 of 2018 & 212 of 2019 -: 5 :- matter of R.C.P.No.26 of 2013 is 450 sq.ft. and the area of the premises which is the subject matter of R.C.P.No.22 of 2014 is 325 sq.ft. The tenant in the premises involved in R.C.P. No.26 of 2013 has been paying rent at the rate of Rs.6,900/- per month and the tenant in the premises involved in R.C.P. No.22 of 2014 has been paying rent at the rate of Rs.3,850/- per month. Though the premises involved in the cases are parts of the same building, they belong to two different landlords. 3. The landlord in R.C.P.No.26 of 2013 claimed Rs.22/- per sq.ft. by way of fair rent for the premises involved in the said case and the landlord in R.C.P.No.22 of 2014 claimed Rs.25/per sq.ft. by way of fair rent for the premises involved therein. The Rent Control Court, on an elaborate consideration of the materials on record, fixed the fair rent of the premises in R.C.P.No.26 of 2013 at Rs.17/- per sq.ft. and for the premises in R.C.P.No.22 of 2014 at Rs.15/- per sq.ft. The landlords though challenged the said decisions in appeals, the Appellate Authority affirmed the decisions of the Rent Control Court by two separate judgments. The landlords are aggrieved by the said decisions of the Appellate Authority and hence, these revisions. R.C.Rev.Nos.248 of 2018 & 212 of 2019 -: 6 :- 4. Heard the learned counsel for the landlords as also the learned counsel for the tenants. 5. It is seen that a sum of Rs.6,00,000/- was received by the landlord in R.C.P.No.26 of 2013 and a sum of Rs.3,10,000/was received by the landlord in R.C.P.No.22 of 2014 from the respective tenants by way of advance at the time when they were let in the premises as tenants. While affirming the orders fixing the fair rent for the premises, among others, the Appellate Authority observed that if interest on the advance amount received by the landlords is taken into account, the fair rent ordered to be paid would workout to be far more than what is granted by the Rent Control Court. Rebutting the aforesaid observation, the learned counsel for the landlords submitted that insofar as Section 8 of the Act has been set at naught by this Court in **Issac Ninan v. State of Kerala,** 1995 KHC 397, the said observations were totally unwarranted. According to the learned counsel, in light of the decision of this Court in **Issac Ninan** , it would be open to the tenant and landlords to enter into any arrangement as regards the payment of advance and the same can never be taken into account while fixing the fair rent of the premises. It was argued by the learned R.C.Rev.Nos.248 of 2018 & 212 of 2019 -: 7 :- counsel that the Appellate Authority, in the circumstances, ought to have examined the correctness of the fixation of fair rent made by the Rent Control Court based on the materials on record. Although the applications for fixation of fair rent and the appeals arising therefrom were not considered together, the landlords in both cases rest their claim for enhancement of the fair rent based on three other lease deeds which were marked in R.C.P.No.26 of 2013 as Exts.A1 to A3 and in R.C.P.No.22 of 2014 as Exts.A8 to A10. Based on the said three lease deeds, it was persuasively argued by the learned counsel for the landlords that the fair rent of the premises as fixed by the Rent Control Court ought to have been enhanced by the Appellate Authority. It was also argued by the learned counsel that at any rate, the landlords are entitled to periodical revision on the fair rent and periodical revision was not granted by the authorities below for the landlord in R.C.P.No.26 of 2013. 6. Per contra, the learned counsel for the tenants supported the decisions of the Appellate Authority pointing out that the premises covered by Exts.A1 to A3 lease deeds in R.C.P.No.26 of 2013 are not comparable at all to the premises involved in the cases on hand. It was submitted that those are new buildings constructed R.C.Rev.Nos.248 of 2018 & 212 of 2019 -: 8 :- with better amenities and the rent agreed to be paid by the tenants in those buildings cannot therefore be claimed by the landlords for the premises involved in these cases. 7. We have examined the arguments advanced by the learned counsel for the parties on either side. 8. The main question that falls for consideration is as to whether the decision of the Rent Control Court as affirmed by the Appellate Authority suffer from any illegality, irregularity or impropriety insofar as the fixation of fair rent is concerned. 9. Before proceeding to deal with the arguments advanced by the learned counsel for the parties on either side in this regard, it is necessary to remind ourselves the scope of the jurisdiction of this Court under Section 20 of the Act. It is well settled that the jurisdiction of this Court under Section 20 of the Act is only to ensure that the decisions of the authorities below do not suffer from any illegality, irregularity or impropriety. This Court cannot, therefore, re-appreciate the evidence on record in order to come to a different conclusion on any factual issues, unless the finding can be said to be either erroneous or perverse. It has been held by the Apex Court in **Hindustan Petroleum Corpn. Ltd. v. Dilbahar** R.C.Rev.Nos.248 of 2018 & 212 of 2019 -: 9 :- **Singh** , (2014) 9 SCC 78 that only findings of facts which have been arrived at without consideration of the material evidence, or findings which are based on no evidence or misreading of the evidence, or findings which, if allowed to stand, would result in gross miscarriage of justice, alone could be said to be erroneous or perverse warranting correction under Section 20 of the Act. 10. The learned counsel for the landlords is right in his submission that in light of the decision of this Court in **Issac Ninan** , it would be open to the tenants and the landlords to enter into any arrangement as regards the payment of advance and the same cannot be taken into account while fixing the fair rent of the premises. The learned counsel is also right in his submission that the Appellate Authority, in the circumstances, ought to have examined the correctness of the fixation of fair rent made by the Rent Control Court based on the materials on record. As noted, the argument advanced by the learned counsel for the landlords is that in light of Exts.A1 to A3 lease deeds in R.C.P.No.26 of 2013, the fair rent fixed for the premises by the Rent Control Court is unreasonably low. We have perused the said documents. Among the same, Ext.A1 is a lease deed executed on 18.10.2012 in respect of a premises R.C.Rev.Nos.248 of 2018 & 212 of 2019 -: 10 :- measuring 1610 sq.ft. and the rent agreed to be paid by the tenant therein which is a bank, is Rs.35/- per sq.ft. Ext.A2 is a lease deed executed on 16.11.2006 in respect of a premises measuring 4400 sq.ft. and the rent agreed to be paid by the tenant therein which is a supermarket, is Rs.20/- per sq.ft. Similarly, Ext.A3 is a lease deed executed on 09.04.2013 in respect of a premises measuring 1341 sq.ft. and the rent agreed to be paid by the tenant therein which is also a bank, is Rs.28/- per sq.ft. As noted, the applications for fixation of fair rent for the premises involved in these cases were instituted after Exts.A1 to A3 lease deeds came into being. Despite that, the landlords in the cases on hand chose to claim fair rent only at the rate of Rs.22/- per sq.ft. for the premises involved in R.C.P.No.26 of 2013 and Rs.25/- per sq.ft. for the premises involved in R.C.P.No.22 of 2014. From the aforesaid fact alone, it could be seen that even according to the landlords, the premises which are involved in Exts.A1 to A3 lease deeds in R.C.P.No.26 of 2013 are not premises which are comparable to the premises involved in these cases. Be that as it may, we have perused the orders passed by the authorities below. It is seen that in both cases, the authorities below have taken note of the lease deeds referred to above, made a R.C.Rev.Nos.248 of 2018 & 212 of 2019 -: 11 :- comparison of the premises having regard to their location, facilities, activities undertaken by the tenants therein etc. and came to the conclusion that the landlords are not entitled to fair rent for their premises at par with Exts.A1 to A3 lease deeds. It is also seen that while carrying out the said exercise, the Rent Control Court has taken note of the area of the subject premises as also the fact that a portion of the premises which is the subject matter of R.C.P.No.26 of 2013, is being used by the tenant therein as a godown. It was observed by the authorities below that the landlords in the cases on hand cannot claim rent for the premises at par with the larger premises occupied by banks and supermarkets. We do not find any illegality, irregularity or impropriety in the decisions of the authorities below warranting exercise of jurisdiction under Section 20 of the Act insofar as the fixation of fair rent is concerned. 11. It is now settled that landlords are entitled to periodical revision on the fair rent fixed. As noted, although periodical revision at the rate of 12% on the fair rent once in three years was granted by the Appellate Authority to the landlord in R.C.P.No.22 of 2014, periodical revision was not granted by the authorities to the landlord in R.C.P.No.26 of 2013. Needless to say, R.C.Rev.Nos.248 of 2018 & 212 of 2019 -: 12 :- to the limited extent aforesaid, the order in R.C.P.No.26 of 2013 is liable to be corrected, as the same is an impropriety which could be corrected by this Court, in exercise of the power under Section 20 of the Act. In the result, R.C.R.No.212 of 2019 is dismissed and R.C.R.No.248 of 2018 is allowed in part granting to the landlord therein also, periodical revision of fair rent at the rate of 12% per annum once in three years from the date of institution of the proceedings. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** Sd/- ## **C.S.SUDHA, JUDGE.** YKB