The Superintendent of Post Office, Thalassery Division, Temple Gate, Thalassery vs Padannakkandy Indira, Padannakkandy Sheeja, Padannakkandy Lathika

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 4TH DAY OF JULY 2017/13TH ASHADHA, 1939 RCRev..No. 311 of 2016 (D) ------------------------------------AGAINST THE JUDGMENT IN RCA 110/2014 of ADDL.D.C.. RENT CONTROL APPELLATE AUTHORITY, THALASSERY, DATED 04-11-2015 AGAINST THE ORDER IN RCP 116/2012 of MUNSIFF COURT, THALASSERY, DATED 31-03-2014 REVISION PETITIONER/APPELLANT/RESPONDENT: - -------------------------------------------------------------------------------- THE SUPERINTENDENT OF POST OFFICE, THALASSERY DIVISION, TEMPLE GATE, THALASSERY. BY ADV. SRI.M.N.MANMADAN, CGC RESPONDENTS/RESPONDENTS/PETITIONERS: - --------------------------------------------------------------------- 1. PADANNAKKANDY INDIRA, AGED 48 YEARS, D/O. PANIKKAN KUNHIKANNAN, RESIDING AT SAJI NIVAS, DHARAMADAM AMSOM, PALAYAD DESOM, THALASSERY-670101. 2. PADANNAKKANDY SHEEJA, D/O. PANIKKAN KUNHIKANNAN, RESIDING AT SAJI NIVAS, DHARAMADAM AMSOM, PALAYAD DESOM, THALASSERY-670101. 3. PADANNAKKANDY LATHIKA, AGED 46, D/O. PANIKKAN KUNHIKANNAN, RESIDING AT SAJI NIVAS, DHARAMADAM AMSOM, PALAYAD DESOM, THALASSERY-670101. R1-R3 BY ADV. SRI.M.P.ASHOK KUMAR R1-R3 BY ADV. SMT.BINDU SREEDHAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DMR/- ## **K. HARILAL & P. SOMARAJAN, JJ.** -----------------------------------------------R.C.R. No.311 of 2016 -----------------------------------------------Dated this the 04[th] day of July, 2017 ## O R D E R ## **K. Harilal, J.** The revision petitioner is the tenant, who is confronting with an order concurrently passed under Section 5 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). The landlords preferred an application under Section 5 of the Act, seeking an order fixing the fair rent of the petition schedule building. According to the landlords, the building was let out on a monthly rent of Rs.1950/- in the year 2004 and thereafter, there was no enhancement of rent. The petition schedule building is situated at Chirakuni town, which is a commercially important area. There are many public institutions near the petition schedule building. Similarly, the cost of living has increased considerably and the purchasing power of money decreased considerably after the building was let out to the tenant. Therefore, the rent of the petition schedule building requires to be re-fixed. 2. The tenant contended that the locality, where the petition schedule building is situated, is not so commercially important, as contended by the landlords. According to the R.C.R.No.311 of 2016 2 tenant, Chirakuni is only a small town and the building will not fetch a rent of Rs.20,000/- per month, as claimed by the landlords. 3. On the aforesaid rival pleadings, both parties adduced evidence consists of the oral testimony of PWs 1 and 2 and RW1 and Exhibits A1 to A4, B1 to B11 and C1 and C2. After considering the aforesaid evidence, on record, the Rent Control Court fixed the fair rent at the rate of Rs.7,500/- per month from the date of order. Feeling aggrieved, the tenant preferred an appeal before the Appellate Authority. The Appellate Authority, after re-appreciating the evidence, on record, confirmed the findings of the Trial Court fixing the fair rent at Rs.7,500/- per month. This Revision is filed challenging the legality, propriety and regularity of the concurrent findings whereby the courts below fixed fair rent at the rate of Rs.7,500/- per month. 4. The learned counsel for the revision petitioner/tenant advanced arguments mainly contending that the Rent Control Court fixed the fair rent, without any basis or taking any yardstick for fixing the fair rent. According to the learned counsel for the Revision petitioner/tenant, the courts below R.C.R.No.311 of 2016 3 have relied on Exhibit A5 rent deed of another tenanted building situated in the first and second floors. But, the petition schedule building is situated in the first floor only. Neither the total area of the tenanted premises referred to in Exhibit A5 nor the total area of the petition schedule building was brought out in evidence. Therefore, the petition schedule building could not have been compared with the building referred to in Exhibit A5. Thus, according to the learned counsel for the revision petitioner, there was no basis for fixation of fair rent. 5. Per contra, the learned counsel for the respondents advanced arguments reminding us the limited scope and extent of revisional jurisdiction under Section 20 of the Act. As rightly submitted by the learned counsel for the landlords, no doubt, the scope and extent of jurisdiction of this Court under Section 20 of the Act is confined to legality, propriety and regularity of the findings of the courts below. In order to fortify the said argument, the learned counsel for the landlords cited the decisions of the Apex Court in **Lachhman Dass v. Santokh Singh** [(1995) 4 SCC 201], **Rukmini Amma Saradamma v. Kallyani Sulochana and Others** [(1993) 1 SCC 499] and **Ubaiba v. Damodaran** [(1995) 5 SCC 645]. R.C.R.No.311 of 2016 4 6. We have meticulously considered the proposition laid down by the Apex Court in the aforesaid decisions and we have no quarrel with the proposition laid down in those decisions. We fully accept the limited scope of our jurisdiction under Section 20 of the Act. But, at the same time, it is to be remembered that in exercise of revisional jurisdiction this Court has the power to interfere with the factual findings of the courts below also, in certain exceptional circumstances. The scope and extent of interference with factual findings are restricted to cases wherein the authorities below have relied on irrelevant evidence or ignored valuable items of evidence or arrived at findings without any evidence. The above view is supported by the decision of the Supreme Court in **Lakshmi v.** **Labbah Kunju Ameer Hamsa** [2005 (3) KLT 627]. Therefore, in the instant case, the scope of interference with factual findings are confined to the question whether the courts below have relied on irrelevant evidence or ignored valuable evidence or fixed the fair rent without any evidence or basis. 7. Going by the judgment, it is seen that the courts below concurrently placed reliance on Exhibit A5 rent deed. Exhibit A5 rent deed reveals that the rent for the building R.C.R.No.311 of 2016 5 occupied by Campus Studies Education Centre in the year 2011 was Rs.6,000/- per month and after one year, it was Rs.8,000/-. The Commission Report shows that the petition schedule building is situated in the first floor, but the Campus Studies Educational Centre is situated in the first and second floors of the building. It is to be remembered that same or similarly situated buildings can be compared, for fixation of fair rent. So, the rooms situated in different floor, as in the instant case, cannot be taken as same or similar rooms, for fixation of fair rent, without any kind of balancing so as to adjust difference in the floor level. Indisputably, when the floor level goes upward, the rent comes reduced. Similarly, the total area of neither the Campus Studies Centre nor the petition schedule building was brought out, in evidence, either by the parties or the Commissioner. Moreover, the total plinth area of the petition schedule building also stands in dispute. According to the tenant, the total plinth area is 455.9 sq.ft only. But, the landlords disputed the said contention and claimed that the total area would come more than 455.9 sq.ft. Needless to say, absolutely there is no reliable or conclusive evidence to show the exact area of the petition schedule building or the building R.C.R.No.311 of 2016 6 referred to in Exhibit A5. Unless the area is same, no comparison, for the fixation of fair rent, could have been made, without determining a rate per square feet or square meter. Here, no rate was fixed per square feet or square meter, in view of the prevailing rent in the locality. 8. We are of the opinion that the Rent Control Court ought to have fixed the fair rent at square feet or square meter basis, when the area is not same. Similarities of the petition schedule building and the building referred to in Exhibit A5 are not stated in the commission report, so as to make both buildings comparable. A small portion of the building covered under Exhibit A5 is situated in the first floor and major portion is in the second floor. Therefore, it cannot be said that the petition schedule building is same or similar as that of the building referred to in Exhibit A5 rent deed, without making any kind of balancing of advantages and disadvantages of both building. But, the courts below have placed reliance on Exhibit A5 and fixed the fair rent of the petition schedule building on that basis, notwithstanding the fact that they are situated in different floors and no rate was fixed per square feet or square meter basis and that no balancing was made with advantages R.C.R.No.311 of 2016 7 ## and disadvantages of both buildings. 9. In the above analysis, we find that the courts below have went wrong, by fixing the fair rent, on the basis of Exhibit A5, without equalizing both buildings by balancing advantages and disadvantages. Thus, the factual findings stand without any basis or reliable evidence. The said circumstance warrants interference of this Court under Section 20 of the Act. But, we confirm the concurrent findings of the courts below that the landlord is entitled to get enhanced rent, as long years have been elapsed, after the fixation of existing rent. 10. We further take notice that the courts below have not considered the guidelines issued by this Court in **Edger Ferus v. Abraham Ettycheria** [2004 (1) KLT 767]. In this decision, this Court held that “The Rent Control Court while fixing fair rent could take note of the inflation and resultant reduction in purchasing power of money, variations in the cost of living index in the area since the commencement of the lease”. So, the court below ought to have considered the impact of inflation, increase in the capital value of the land, cost of construction and taxes, electricity charges etc. while determining the fair rent. Therefore, the rent has to be re-fixed R.C.R.No.311 of 2016 8 afresh, keeping in view of the guidelines issued by this court in the aforesaid decision also. 11. Consequently, the impugned order and judgment passed by the courts below will stand set aside and the application is remanded back to the Trial Court for fresh consideration, after affording an opportunity to both parties to adduce further evidence. The tenant shall continue to pay rent at the rate of Rs.7,500/- per month till the disposal of the Rent Control Petition afresh. That apart, the tenant shall deposit the entire arrears of rent, if any, within a period of two months from the date of receipt of a copy of this order. On deposit, the said amount shall be disbursed to the tenant. The Rent Control Court shall dispose the Rent Control Petition afresh within a period of three months from today. The parties shall appear before the Rent Control Court on 01.08.2017. This Rent Control Revision is disposed of accordingly. ## **K. HARILAL (JUDGE)** ## **P. SOMARAJAN (JUDGE)** DMR/-