Sapna Menokee v. Adikkoool Abdu Rahiman and others

## **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 6[TH] DAY OF JANUARY 2022 / 16TH POUSHA, 1943 R.C.REV.NO. 137 OF 2021** **AGAINST THE JUDGMENT DATED 08.04.2021 IN R.C.A.NO.172 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), VATAKARA AND THE ORDER DATED 06.11.2019 IN R.C.P.NO.72 OF 2018 OF THE RENT CONTROL COURT (MUNSIFF), VATAKARA** ## **REVISION PETITIONER:** **DR.SAPNA MENOKEE AGED 49 YEARS, W/O C.R.SIVAKUMAR, 'SOOORYODAYAM, EDODY, VATAKARA P.O., KOZHIKKODE DISTRICT, PIN-673101, NOW WORKING AT MENOKEE'S HOMOEOPATHIC MEDICAL CENTER, THIRUVALLOOR ROAD, NARAYANA NAGARAM, VADAKARA AMSOM DESOM, VADAKARA P.O., KOZHIKKODE DISTRICT, PIN – 673101.** **BY ADVS. C.R.SIVAKUMAR MINI.M.NAIR BINI.K K.K.ANILRAJ C.B.BHAGYALEKSHMY** ## **RESPONDENTS:** **1 ADIKKOOL ABDU RAHIMAN AGED 61 YEARS, S/O ABDULLA, RESIDING AT FIRDOUSE MAHAL,VILLIAPPALLY VILLAGE KEEZHAL DESOM, KEEZHAL PO,** **VADAKARA TALUK, KOZHIKKODE DISTRICT,** 2 R.C.Rev.No.137 of 2021 **KERALA STATE, PIN – 673542.** - **2 THUNDIYIL JAMEELA, AGED 51 YEARS, D/O KUNHAMMED,** **RESIDING AT FIRDOUSE MAHAL,VILLIAPPALLY VILLAGE KEEZHAL DESOM, KEEZHAL PO, VADAKARA TALUK, KOZHIKKODE DISTRICT, KERALA STATE, PIN – 673542.** - **3 WASEEM ABDURAHIMAN, AGED 34 YEARS, S/O ABDU RAHIMAN,** **RESIDING AT FIRDOUSE MAHAL, VILLIAPPALLY VILLAGE, KEEZHAL DESOM, KEEZHAL PO, VADAKARA TALUK, KOZHIKKODE DISTRICT KERALA STATE, PIN – 673 542, REPRESENTED BY POWER OF ATTORNEY HOLDER, 1ST RESPONDENT, ADIKKOOL ABDU RAHIMAN, S/O ABDULLA , AGED 61 YEARS, RESIDING AT FIRDOUSE MAHAL, VILLIAPPALLY VILLAGE,KEEZHAL DESOM KEEZHAL PO, VADAKARA TALUK, KOZHIKKODE DISTRICT, KERALA STATE, PIN – 673542.** - **4 WISAM ABDURAHIMAN** **AGED 32 YEARS, S/O ABDU RAHIMAN,** **RESIDING AT FIRDOUSE MAHAL,VILLIAPPALLY VILLAGE KEEZHAL DESOM, KEEZHAL PO, VADAKARA TALUK, KOZHIKKODE DISTRICT, KERALA STATE, PIN-673542.** **BY ADVS.** **P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE B.ANUSREE MANU VYASAN PETER** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 21.12.2021, THE COURT ON 06.01.2022 DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.137 of 2021 ## **O R D E R** ## Ajithkumar, J. The respondents-landlords filed R.C.P.No.72 of 2018 before the Rent Control Court (Munsiff), Vatakara against the petitioner-tenant for eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court dismissed that petition. In the appeal preferred by the respondents as R.C.A.No.172 of 2019, the Rent Control Appellate Authority (Additional District Judge), Vatakara reversed that order and ordered eviction. Feeling aggrieved thereof, the petitioner invoking the jurisdiction of this Court under Section 20 of the Act filed this revision petition. 2. The respondents sought eviction on the ground that the wife of the 1[st] respondent wanted to start an audio and speech therapy centre in the petition schedule shop room. It was contended that the respondents purchased the petition schedule shop room as per assignment deed No.897 of 2016 and the petitioner attorn to the existing rental arrangement. The petitioner continued as a tenant on a monthly rent of 4 R.C.Rev.No.137 of 2021 Rs.8,000/-. The Rent Control Court after recording evidence on the side of the respondents alone, proceeded to dispose of the rent control petition. The Rent Control Court found that parties mutually agreed the monthly rent as Rs.8,000/- in the year 2016 and in the light of the decision in **Mohammad Ahmad v. Atma Ram Chouhan [(2011) 7 SCC 755]** , dismissed the petition. 3. The Appellate Authority considered the matter in detail in R.C.A.No.172 of 2019. The Appellate Authority after considering guideline No.5 in **Mohammad Ahmad (supra)** , which provides that 'if present and prevalent 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 eviction against such a tenant at least for a period of five years' held that the same had no application in this case inasmuch as the rent fixed in 2016 was not the 'present and prevalent' market rent. Just because the rate of rent is increased, it cannot be stated that the tenant is entitled to immunity from eviction. There is no evidence to show that the 5 R.C.Rev.No.137 of 2021 rent enhanced is the present and prevalent market rent. It is for the tenant who claims immunity to plead and prove that the rent fixed is in accordance with prevalent market rent. There is no such pleading or evidence and accordingly the Appellate Authority found that there is no bar for claiming eviction of the petitioner. 4. The Appellate Authority proceeded further to consider the claim for eviction on the basis of the available evidence and ordered eviction. Before the Rent Control Court, the petitioner did not participate in the trial. When the matter was taken up for trial, the learned counsel appearing for the petitioner before the Rent Control Court reported no instruction. Therefore, the evidence of PW1 was recorded and Exts.A1 to A6 were marked on the side of the respondents. The Rent Control Court, however, did not consider the said evidence in the light of its finding that the rent control petition was not maintainable for the reason that the petitioner-tenant had immunity from eviction for a period of five years from 08.06.2016 on which date the respondents purchased the 6 R.C.Rev.No.137 of 2021 property and entered into the rental arrangement with the petitioner. 5. Heard the learned counsel appearing for the petitioner and the learned counsel for the respondents. 6. The learned counsel appearing for the petitioner would contend that when the Appellate Authority found that the finding of the Rent Control Court regarding the maintainability of the eviction petition was wrong, the course open to it was only to remand the matter for fresh consideration of the other points. Instead, the Appellate Authority considered the evidence and entered a finding that the petitioner was liable to be evicted on the ground of bonafide need. 7. In **Mohammad Ahmad (supra),** the Apex Court observed that majority of cases claiming eviction were being filed because of the reason that the landlords did not get reasonable rent akin to market rent. Taking into account that aspect of the matter, the Apex Court with a view to minimise landlord-tenant litigations at all levels, laid down the following 7 R.C.Rev.No.137 of 2021 ## guidelines: (i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently. (ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only. (iii) The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord. (iv) But if any major repairs are required to be carried out then in that case only after obtaining permission from the landlord in writing, the same shall be carried 8 R.C.Rev.No.137 of 2021 out and modalities with regard to adjustment of the amount spent thereon, would have to be worked out between the parties. (v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises. (vi) The parties shall be at liberty to get the rental fixed by the official valuer or by any other agency, having expertise in the matter. (vii) The rent so fixed should be just, proper and adequate, keeping in mind, location, type of construction, accessibility with the main road, parking space facilities available therein etc. Care ought to be taken that it does not end up being a bonanza for the landlord.' 8. In this case, following the purchase of the petition schedule shop room by the respondents a new rental arrangement was entered into between the parties. That was to attorn to the existing rental arrangement. Of course, at that time, parties mutually agreed among other terms, that 9 R.C.Rev.No.137 of 2021 the rent shall be Rs.8,000/- per month. The Appellate Authority considered those aspects and held that the petitioner could not claim immunity on the reason that the rent was agreed to at the time of executing a new agreement. We are of the view that the said finding of the Appellate Authority is not incorrect. However, it is to be considered whether the Appellate Authority is right in deciding the other point, namely; the claim for eviction, since the trial court disposed of the rent control petition on the preliminary point of maintainability. 9. A Rent Control Appellate Authority is constituted under Section 18 (1)(a) of the Act. Section 18(3) of the Act deals with powers of the Appellate Authority constituted under Section 18 (1)(a) of the Act, which reads: ‘The appellate authority shall send for the records of the case from the Rent control Court and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either directly or through the Rent Control Court, shall decide the appeal.’ 10 R.C.Rev.No.137 of 2021 ## 10. This Court in **Gopakumar G. and others v. Ancy Thankachan Philip and others [2019 (3) KLT 346]** while considering the question whether Section 5 of the Limitation Act applies to the proceedings before the Rent Control Appellate Authority observed thus: '14. We may refer to Section 2(8) of the Code where the term "Judge" has been defined as the presiding officer of a Civil Court and in Section 2(4), we find the definition of the term "district" as the local limits of jurisdiction of the Principal Civil Court of original jurisdiction (called a "District Court"). From the above notification, it is very clear that the Government of Kerala had expressly conferred all powers under Section 18 of the Act on the District Judges having jurisdiction over the areas within which the provisions of the Act had been extended. In the light of the principles declared in Kerala State Electricity Board's case, we have no hesitation to hold that the District Judges, on whom the appellate powers traceable from Section 18 of the Act have been conferred on, function as Civil Courts controlled by the provisions of the Code.' 11. While considering an appeal arising on a decision rendered on a preliminary point, can the appellate court, after answering such a preliminary question, venture to consider all 11 R.C.Rev.No.137 of 2021 the other questions involved in the case? This question has to be considered in the light of the principle underlying Order LXI Rule 23 of the Code of Civil Procedure, 1908. Rule 23 reads as follows: ‘Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions be evidence during the trial after remand.’ 12. A point can be said to be a preliminary point if the decision thereon in a particular way is sufficient to dispose of the whole matter without the necessity of deciding other points in the case. If the question is one relating to jurisdiction of the court to entertain the dispute is ordinarily a pure question of law which could be decided at the threshold. 12 R.C.Rev.No.137 of 2021 In **A.Sankararamiah v. M.S. Lakshminarayana moorthi [2016 (5) KHC 87],** a Constitution Bench of the Apex Court held that an order remanding a proceeding may ordinarily be made under Order XLI Rule 23 of the Code when the trial court has decided the case on a preliminary point and the appellate court reverses the decision of the trial court. 13. In view of the principle of law mentioned above, the Appellate Authority on reversing the finding of the Rent Control Court on the question of maintainability should have remanded the Rent Control Petition for retrial. Instead, the Appellate Authority proceeded to consider the evidence which was not at all considered by the trial court and entered into its findings. Therefore, the order of the Appellate Authority for eviction on the ground of bonafide need is unsustainable in law and liable to be set aside. 14. In the above circumstances, the inevitable conclusion is that the judgment of the Appellate Authority dated 08.04.2021 is liable to be set aside and R.C.P.No.72 of 2018 remanded for fresh consideration to the Rent Control 13 R.C.Rev.No.137 of 2021 Court. The Rent Control Court shall decide the matter afresh after affording an opportunity to both sides for adducing evidence, if any. The Revision Petition is allowed accordingly. The parties are directed to appear before the Rent Control Court (Munsiff), Vatakara on 28.01.2022. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr