R.C.Rev. Nos.179 of 2020 & 102 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR. JUSTICE JOHNSON JOHN FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA,** ## **1945** **RCREV. NO. 102 OF 2021** **AGAINST THE COMMON JUDGMENT DATED 23-03-2020 PASSED IN RCA NO.10 OF 2019 OF RENT CONTROL APPELLATE AUTHROTITY, ERNAKULAM WHICH ARISES FROM THE COMMON ORDER DATED 31-102018 PASSED IN RCP NO.7 OF 2014 ON THE FILES OF THE RENT CONTROL COURT, MUVATTUPUZHA.** ## **REVISION PETITIONERS/APPELLANTS/RESPONDENTS :** 1 REXINE HOUSE, A PROPRIETARY CONCERN, REPRESENTED BY ITS PROPRIETOR, K.A.MAITHEEN, S/O. ABDUKKUNJU, KEEPARAMBATH HOUSE, ANICAUD, REXINE HOUSE, VETTUKATTIL THEATRE COMPLEX, VELLURKUNNAM VILLAGE KARA AND P.O. MUVATTUPUZHA, ERNAKULAM DISTRICT 686 669. 2 SHAMSU, AGED 54 YEARS, S/O. MAITHEEN, KEEPARAMBATH HOUSE, ANICADU, “REXINE HOUSE”, VETTUKATTIL THEATRE COMPLEX, VELLURKUNNAM VILLAGE KARA AND P.O. MUVATTUPUZHA, ERNAKULAM DISTRICT 686 669. BY ADVS. AJITH VISWANATHAN SHIBU JOSEPH SAYED MANSOOR BAFAKHY THANGAL P.VISWANATHAN (SR.) 2 R.C.Rev. Nos.179 of 2020 & 102 of 2021 ## **RESPONDENTS/RESPONDENTS/PETITIONERS :** 1 PAUL VARGHESE, AGED 34, S/O. LATE JOY, VETTUKKATTIL HOUSE, PRESENTLY RESIDING AT APARTMENT NO. 10E, SKYLINE LAVENDER, PETTA, TRIPUNITHURA P.O. ERNAKULAM DISTRICT, PIN CODE - 682 304. 2 DAISY JOY, AGED 62, W/O. LATE JOY, VETTUKKATTIL HOUSE, PRESENTLY RESIDING AT APARTMENT NO. 10E, SKYLINE LAVENDER, PETTA, TRIPUNITHURA P.O. ERNAKULAM DISTRICT, PIN CODE - 682 304. BY ADVS. MATHEW JOHN ABY J AUGUSTINE ## **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD** **ON 17.11.2023, ALONG WITH RCRev.NO.179/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev. Nos.179 of 2020 & 102 of 2021 **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR. JUSTICE JOHNSON JOHN FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA,** **1945** **RCREV. NO. 179 OF 2020** **AGAINST THE COMMON JUDGMENT DATED 23.03.2020 IN RCA Nos.9 AND 10 OF 2019 OF RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM CONCURRING WITH THE COMMON ORDER IN RCP NOS.5, 6, 8, 9, 10 & 11 OF 2014 DATED 31.10.2018 OF RENT CONTROL COURT,MUVATTUPUZHA.** ## **REVISION PETITIONER/IST RESPONDENT :** PAUL VARGHESE, AGED 34 YEARS, S/O LATE JOY, VETTUKATTIL HOUSE, PRESENTLY RESIDING AT APARTMENT NO 10 E, SKYLINE LAVENDER, PETTA, THRIPUNITHURA P.O., ERNAKULAM DISTRICT - 682 034. BY ADVS. MATHEW JOHN (K) SRI.MATHEW DEVASSI SRI.ABY J AUGUSTINE 4 R.C.Rev. Nos.179 of 2020 & 102 of 2021 ## **RESPONDENTS/APPELLANTS 1 AND 2/2ND RESPONDENT :** 1 REXINE HOUSE, A PROPRIETARY CONCERN REPRESENTED BY ITS PROPRIETOR - K.A MAITHEEN, AGED 78 YEARS, S/O ABDUKUNJU, KEERAMPATTU HOUSE, ANICADU, REXINE HOUSE, VETTUKATTIL THEATRE COMPLEX, VELLURKUNNAM VILLAGE AND KARA, VELLURKUNNAM P.O.MUVATTUPUZHA, ERNAKUALAM - 686 669. 2 SHAMS, AGED 54 YEARS, S/O MAITHEEN, KEERAMPATTU HOUSE, ANICADU, REXINE HOUSE, VETTUKATTIL THEATRE COMPLEX, VELLURKUNNAM VILLAGE AND KARA, VELLURKUNNAM P.O.MUVATTUPUZHA, ERNAKULAM - 686 669. 3 DAISY JOY, AGED 62 YEARS, W/O LATE JOY,, VEETTUKATTIL HOUSE, PRESENTLY RESIDING AT APARTMENT NO 106, 6KY LINE, LAVENDER, PETTA, THRIPUNITHURA P.O., ERNAKULAM DISTRICT - 682 304. BY ADVS. AJITH VISWANATHAN P.T.GIRIJAN P.VISWANATHAN (SR.) ## **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD** **ON 17.11.2023, ALONG WITH RCRev.NO.102/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 R.C.Rev. Nos.179 of 2020 & 102 of 2021 ## **P.B.SURESH KUMAR & JOHNSON JOHN, JJ.** ## **-----------------------------------------------** ## **R.C.Rev. Nos.179 of 2020 & 102 of 2021** ## **----------------------------------------------Dated this the 17[th] day of November, 2023.** ## **O R D E R** ## **P.B.Suresh Kumar, J.** These revisions arise from a proceedings under Section 5 of the Kerala Buildings (Lease and Rent Control) Act (the Act) for fixation of fair rent. Among the revisions, R.C.R. No.102 of 2021 is preferred by the tenant and R.C.R. No.179 of 2020 is preferred by the landlords. 2. The subject matter of the proceedings is two portions of a building, one on the ground floor measuring 955 sq. ft and the other on the cellar measuring 2227 sq. ft. The R.C.Rev. Nos.179 of 2020 & 102 of 2021 6 application for fixation of fair rent was instituted on 21.10.2014. At the relevant time, rent was being paid for the portion of the building on the ground floor at the rate of Rs.7/per sq. ft and for the portion of the building on the cellar at the rate of Rs.5/- per sq. ft. The claim of the landlords in the proceedings was to fix the fair rent of the portion of the building on the ground floor at the rate of Rs.30/- per sq. ft and for the portion of the building on the cellar at the rate of Rs.25/per sq. ft. The tenant disputed the claim. Both the tenant as well as the landlords adduced oral and documentary evidence. On an appraisal of the materials on record, the Rent Control Court fixed the fair rent for the ground floor portion of the building at Rs.20/- per sq. ft and for the cellar portion of the building at Rs.15/- sq. ft. The Rent Control Court also ordered periodical revision of rent at the rate of 5% per year. The tenant challenged the decision of the Rent Control Court on the ground that the fixation of fair rent made is unreasonably excessive. 7 R.C.Rev. Nos.179 of 2020 & 102 of 2021 The landlords filed a cross objection in the appeal preferred by the tenant on the ground that the fixation of fair rent made is unreasonably low. The Appellate Authority allowed the appeal in part by affirming the fixation of fair rent and vacating the periodical revision of the fair rent ordered. Both the landlords and the tenant are aggrieved by the said decision of the Appellate Authority. 3. Heard the learned counsel for the landlords as also the learned counsel for the tenant. 4. Though several documents have been produced on the side of the landlords to support the claim for fixation of fair rent, on a perusal of the materials on record, we find that Exts.A11 dated 28.08.2014 and A12 dated 12.09.2014 are the most relevant among the documents produced by the landlords as they are certified copies of registered lease deeds executed between the landlords and identically placed tenants who are occupying different portions of the very same building. 8 R.C.Rev. Nos.179 of 2020 & 102 of 2021 The premises involved in Ext.A11 lease deed is a portion of the ground floor of the building as also a portion of its cellar. The premises involved in Ext.A12 lease deed is a portion of the ground floor of the building. In both Exts.A11 and A12, the rent shown as agreed to between the parties for the ground floor of the building is Rs.25/- per sq. ft. As far as the cellar portion of the building occupied by the tenant in Ext.A11 is concerned, the rent shown as agreed to between the parties is Rs.18/- per sq. ft. Even though it was argued by the learned counsel for the tenant placing reliance on the evidence tendered by PW3, the tenant involved in Ext.A11 lease deed, that the rent agreed to by him in the document is not the prevalent rent, the tenant does not deny the arrangements evidenced by Exts.A11 and A12. 5. It is seen that even though the Rent Control Court has taken note of the rent agreed to between the parties in Exts.A11 and A12, a decision to fix the fair rent for the 9 R.C.Rev. Nos.179 of 2020 & 102 of 2021 ground floor at the rate of Rs.20/- per sq. ft. and the cellar portion at the rate of Rs.15/- per sq. ft was arrived at having regard to the various factors made mention of in the decision of this Court in **Edger Ferus v. Abraham Ittycheria** , (2004 (1) KLT 767, and the Appellate Authority found that the said decision is in order. It is also seen that the order directing periodical revision of fair rent was vacated on the assumption that the authorities under the Act may not have jurisdiction to order periodical revision. 6. Even though the factors which are to be taken note of by the Court while fixing the fair rent have been elaborately laid down by this Court in **Edger Ferus** , if it is shown to the Court as to the rate at which an identical premises in the same building is taken on rent by an identically placed tenant immediately preceding the date of institution of the application, according to us, there is no impediment in fixing the fair rent of the premises based on the 10 R.C.Rev. Nos.179 of 2020 & 102 of 2021 same, provided the evidence let in by the parties in this regard is found acceptable. 7. As noted, the rent agreed to between the parties for the ground floor of the building for the premises covered by Exts.A11 and A12 lease deeds entered into immediately preceding the institution of the proceedings, is Rs.25/- per sq. ft. The only difference between the premises as pointed out by the learned counsel for the tenant is that the area covered by Ext.A12 lease deed is only 276 sq. ft, whereas the tenant in the case on hand is holding an area of approximately 955 sq. ft. It was the argument of the learned counsel for the tenant that it is only common knowledge that lesser area would fetch a higher rent and therefore, the landlords cannot be heard to contend that the rent fixed between the parties as reflected in Exts.A11 and A12 lease deeds shall be fixed for the ground floor portion of the building. In reply to the said argument, it was pointed out by the learned 11 R.C.Rev. Nos.179 of 2020 & 102 of 2021 counsel for the landlords that it cannot be contended that a lesser area would fetch a higher rent in all cases. According to the learned counsel, the possibility of a larger area fetching a higher rent cannot be ruled out. True, in exceptional situations, a larger area would fetch a higher rent having regard to the peculiar nature of the need of the tenant, but generally, what is seen from the materials that are brought before this Court in similar cases is that a lesser area would fetch a higher rent. In the said view of the matter, the learned counsel for the tenant is right in contending that the same rent specified in Exts.A11 and A12 shall not be fixed as the fair rent in respect of the subject premises. Having regard to the totality of the facts and circumstances of the cases, we are of the view that Rs.22.50 per sq.ft. would have been the appropriate fair rent to be fixed for the ground floor portion of the building. 8. As far as the fair rent fixed for the cellar portion of the building is concerned, as noted, the fair rent 12 R.C.Rev. Nos.179 of 2020 & 102 of 2021 fixed for the cellar portion in terms of Ext.A11 lease deed is Rs.18/- per sq. ft. There is nothing on record to indicate as to the area which is being occupied by the tenant in Ext.A11 lease deed, even though the materials indicate that the tenant is holding approximately an area of 2227 sq. ft. In the absence of any evidence as to the area occupied by the tenant in Ext.A11 rent deed, we are unable to find fault with the Rent Control Court in fixing the fair rent in respect of the cellar portion of the building at the rate of Rs.15/- per sq.ft. 9. What remains to be considered is as regards the periodical enhancement of the rent payable to the landlords on the fair rent fixed. In the light of the decision of the Full Bench of this Court in **Rahul v. Sudheesh** , 2023(2) KLT 771 (FB), the right of the landlords to claim periodical enhancement of fair rent cannot be questioned. This Court has been taking a consistent stand that the appropriate revision of fair rent to be granted is 10% once in three years. 13 R.C.Rev. Nos.179 of 2020 & 102 of 2021 In the result, the revision petitions are disposed of affirming the fair rent fixed by the authorities below on the cellar portion of the building, and modifying the fair rent fixed for the ground floor portion of the building to Rs.22.50 per sq.ft from Rs.20/- per sq.ft. The landlords will be entitled to periodical revision of fair rent also at 10% once in three years. **Sd/-P.B.SURESH KUMAR, JUDGE.** **Sd/-JOHNSON JOHN, JUDGE.** amk