Simon John S/o M.C. John v. Susan Isaac Mathew and Equity Intelligence India Private Limited (RCR No. 35 of 2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 22[ND] DAY OF APRIL 2022 / 2ND VAISAKHA, 1944** **R.C.REV. NO.35 OF 2018** **AGAINST THE JUDGMENT DATED 15.11.2017 IN R.C.A.NO.4 OF 2013 OF THE RENT CONTROL APPELLATE AUTHORITY & ADDITIONAL DISTRICT COURT V, ERNAKULAM WHICH IS AGAINST ORDER DATED 27.11.2012 IN R.C.P.NO.154 OF 2010 OF THE HON'BLE RENT CONTROL COURT (ADDITIONAL MUNSIFF III), ERNAKULAM** ## **REVISION PETITIONER:** **SIMON JOHN S/O.M.C.JOHN, PROPRIETOR, SNOOSH ICE CREAM, SHOP NO.242/28, BENISTA BUILDING, PANAMPILLY NAGAR, KOCHI-682036** **BY ADVS. SRI.M.P.RAMNATH SRI.BEPIN PAUL SRI.S.DEEPAK SRI.P.RAJESH KOTTAKKAL SRI.K.J.SEBASTIAN SRI.SHALU VARGHESE SMT.S.SANDHYA SEI.M.VARGHESE VARGHESE** ## **RESPONDENT:** **1 SUSAN ISSAC MATHEW W/O.DR.ISSAC MATHEW, MUDUVELIL PUTHEN VETTIL,MAVELIKKARA, ALAPPUZHA DISTRICT,PIN- 690101** ***ADDL.R2. EQUITY INTELLIGENCE INDIA PRIVATE LIMITED REPRESENTED BY ITS DIRECTOR, ABHILASH VARGHESE, 5[TH] FLOOR, AREEKAL MANSION, MANORAMA JUNCTION, MAIN AVENUE, PANAMPILLY NAGAR, COCHIN – 682 036** ***IS IMPLEADED AS ADDL.RESPONDENT NO.2 AS PER ORDER DATED 06.01.2022 IN I.A.NO.1/2021 IN R.C.R.No.35/2018** **BY ADV.** **P.K.RAVI SANKAR** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 04.04.2022, THE COURT ON 22.04.2022 DELIVERED THE FOLLOWING:** 2 RCR No.35 of 2018 ## **O R D E R** ## Ajithkumar, J The 1[st] respondent landlord filed R.C.P.No.154 of 2010 before the Rent Control Court (Additional Munsiff-III) Ernakulam, under section 5(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965. As per order dated 27.11.2012, the Rent Control Court fixed fair rent for the petition schedule shop room as Rs.9030/- per month, at the rate of Rs.14/- per sq.ft., with 10% biennial increase. The petitioner preferred an appeal against that order under Section 18(1)(b) of the Act. The Appellate Authority (Additional District Judge-V) Ernakulam, as per judgment dated 15.11.2017, dismissed the appeal. Hence, the petitioner-tenant filed this revision under Section 20 of the Act. 2. On 06.02.2018, this revision was admitted. Operation of the order fixing fair rent was stayed on the condition of payment by the petitioner from February, 2018 onwards, the rent at the rate of Rs.7300/- per month. 3. Respondent No.2 was impleaded as per order dated 06.01.2022 on the basis of the claim that it had purchased the petition schedule building from the 1[st] respondent as per Annexure 3 RCR No.35 of 2018 A document produced along with I.A.No.2 of 2021, which was received on file. 4. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for respondent No.2. 5. In **Edgar Ferus v. Abraham Itticheriya [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 (1) KLT 673 (SC)].** The Rent Control Court, following the said guidelines, fixed the fair rent at the rate of Rs.9,030/- per month with an annual increase of 5%. The Appellate Authority after considering the materials on record dismissed the appeal. 6. 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." 7. Section 5(1) makes it clear that once the Rent Control Court is called upon either by the tenant or the landlord to decide the fair rent, it is the responsibility of the Court to fix the fair rent, after holding an enquiry as it thinks fit. Of course, the Court is obliged, while fixing the fair rent, to take into consideration the 4 RCR No.35 of 2018 guidelines laid down in **Edgar Ferus** (supra). 8. R.C.P.No.154 of 2010 was decided along with connected R.C.P.Nos.152 and 153 of 2010. The shop room scheduled to all the rent control petitions are part of the same building. The Rent Control Court in the joint trial examined PWs 1 and 2 and RWs 1 and 2. Exts.A1 to A22, B1 and C1 to C3 were received in evidence. 9. The Rent Control Court in order to fix the rate of rent at the rate of Rs.14/- per sq.ft took into account all the parameters enumerated by this Court in **Edgar Ferus.** PW1 is the petitioner in R.C.P.Nos.152 and 153 of 2010. His wife is the petitioner in R.C.P 154 of 2010. PW1 deposed regarding the locational advantage of the petition schedule shop room, institutions of importance available in the locality and the commercial importance of the area. PW2, the Commissioner reported vide Ext.C3 details of the petition schedule shop room and the building to which it forms a part. The building abuts Sahodaran Ayyappan Road. It is in a prominent part of the city of Cochin. Importance of the locality, commercial viability of the petition schedule shop room and the advantages available like parking area in front, the access from 5 RCR No.35 of 2018 the public to the room, etc. were considered in detail by the Rent Control Court. Disadvantages of the building such as, it is comparatively an old one, the 1st floor of the building is lying vacant and the like also have been taken into account. The landlady has produced Ext.A14 showing that a similar shop in the neighbourhood fetches a rent of Rs.12500/- per month with 10% yearly increase. Ext.A10 and A11 are the pass books showing payment of rent at such rate to that room. After considering all such evidence in detail, the Rent Control Court had come to the conclusion that the fair rent to the petition schedule room shall be Rs.14/- per sq.ft. Increase at the rate of 10% every two years was found reasonable also. 10. Before the Appellate Authority, the petitioner had challenged the said findings contending that evidence was not properly appreciated by the Rent Control Court. Biennial increase was also said to be enormous. The Appellate Authority, after considering the evidence in detail, found no reason to deviate from the conclusions arrived at by the Rent Control Court. We have gone through the evidence bearing in mind the factors required to be taken into account while fixing fair rent. Jurisdiction of this 6 RCR No.35 of 2018 Court under Section 20 of the Act is limited. It is only discretionary in order to see that the judgment, order or proceedings of the authorities below are legal, regular and proper. 11. In **Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499]** , the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated the entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ‘propriety’ it cannot mean that there - could be a re appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a reappreciation of evidence; on the contrary, by confining itself to 7 RCR No.35 of 2018 legality, regularity and propriety of the order impugned before it. 12. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in **Rukmini Amma Saradamma** the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in **Rukmini Amma Saradamma** that the word ‘propriety’ does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 13. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** after considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh (supra)** the Apex Court held that when the findings rendered by the courts below were well 8 RCR No.35 of 2018 supported by evidence on record and could not be said to be - perverse in any way, the High Court could not re appreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. 14. Viewed in the light of the decisions referred to above, the concurrent finding entered into by the authorities below in fixing the rate of rent as Rs.14/- per sq.ft with biennial hike of 10% is not liable to be interfered with. 15. The learned counsel appearing for the petitioner would contend that the courts below totally went wrong in fixing the area of the petition schedule room as 60 sq.metre(645 sq.ft). When the dimensions measured and reported by the Commissioner as per Ext.C3 is only 522 sq.ft. It is contended that the open area in front of the petition schedule shop room which was put to use by the petitioner by erecting a temporary roof was also taken into account for calculating the area of the tenanted premises and that was why area was fixed as 645 sq.ft. It is also pointed out that proportionate common area was also added to the total area. The learned counsel would contend that the common area and the front yard of the building are available in common to all, which are 9 RCR No.35 of 2018 only amenities available to the building. Such areas cannot be added to the built up area of the tenanted premises so as to fix a uniform rate of rent. The learned counsel would contend that the said approach is totally illegal and resulted prejudice to the petitioner. 16. We agree with the submission of the learned counsel for the petitioner that simply because the front yard of the tenanted premise is put into use by providing a temporary roof, the same cannot be added up to the built up area of the building. In this case, however, there is no scope for any such controversy. It is true that as per the report of the Commissioner area of the shop room is only 522/- sq.ft. It is the carpet area. Its built up area along with the open veranda which is part of the structure and available for exclusive use of the tenant has to be taken into account for fixing the rent of the building. The rent deed relating to the petition schedule schedule shop room which carries its area was produced, but the same has not been admitted in evidence. Ext.A17 is the building tax remittance pass book issued from the Corporation of Kochi in relation to the petition schedule shop room. The area shown in it is 60 sq.mtrs equivalent to 645 sq.m. 10 RCR No.35 of 2018 The petitioner has never raised any objection to the same. In the light of Ext.A17 and other evidence adverted to above, we find that the area of the petition schedule shop room taken by the authorities below as 60 sq.m. cannot be found to be faulty. That finding again is a concurrent one based on the evidence on record. We, in exercise of powers of this Court under Section 20 of the Act, are not expected to interfere with that finding which is founded on sound reasons. In the said circumstances, we hold that this revision is liable only to be dismissed. Hence we dismiss it. **Sd/ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** PV