V Jayadeep S/o Divakaran and V Pradeep S/o Divakaran v. P Shyama

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944** **RCREV. NO. 135 OF 2017** **AGAINST THE ORDER IN R.C.A.NO.114/2016 OF THE RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE WHICH CONFIRMED THE ORDER IN R.C.P.NO.96/2013 OF THE** **RENT CONTROL COURT, KOZHIKODE.** ## **REVISION PETITIONERS/APPELLANTS/RESPONDENTS:** 1 V JAYADEEP S/O. DIVAKARAN, AGED 49 YEARS, BUSINESS, 'ROOPASREE',KOTTOOLI AMSOM AND DESOM, KOZHIKODE TALUK. 2 V. PRADEEP AGED 48 YEARS S/O.DIVAKARAN,BUSINESS, 'ROOPASREE', KOTTOOLI AMSOM AND DESOM, KOZHIKODE TALUK. BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.M.S.VINEETH SRI.M.VIVEK RABINDRANATH ## **RESPONDENT/RESPONDENT/PETITIONER:** P SHYMA AGED 40 YEARS, W/O. RAVEENDRAN, SWASTHAM, KANDILERI HOUSE,NELLIKODE VILLAGE, KOVOOR DESOM, MEDICAL COLLEGE P.O,CALICUT - 637 016. BY ADVS. R.SUDHISH M.MANJU(K/003562/1999) THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 13.12.2022, ALONG WITH RCRev..288/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R Nos. 135 and 288 of 2017 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 TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944** **RCREV. NO. 288 OF 2017** **AGAINST THE JUDGMETN OF THE RENT CONTROL APPELLATE AUTHORITY,KOZHIKODE IN R.C.A.NO.114/2016 DATED 15.12.2016 EMANATING FROM THE ORDER OF THE RENT CONTROL COURT, KOZHIKODE IN R.C.P.NO.96/2013 DATED 26.02.2016.** ## **REVISION PETITIONER/RESPONDENT/PETITIONER:** P.SHYAMA AGED 41 YEARS, W/O RAVEENDRAN, SWASTHAM, KANDILERI HOUSE, NELLIKODE VILLAGE, KAVOOR DESOM, MEDICAL COLLEGE P.O. KOZHIKODE DIST. BY ADVS. SRI.R.SUDHISH SMT.M.MANJU ## **RESPONDENTS/APPELLANTS/RESPONDENTS:** 1 V.JAYADEEP AGED 50 YEARS, S/O DIVAKARAN, BUSINESS, 'ROOPSREE', KOTTOOLI AMSOM AND DEDSOM, KOZHIKODE TALUK, KOZHIKODE- 673 016 2 V.PRADEEP AGED 49 YEARS, S/O DIVAKARAN, BUSINESS, 'ROOPSREE', KOTTOOLI AMSOM AND DEDSOM, KOZHIKODE TALUK, KOZHIKODE- 673 016 BY ADVS. SRI.V.T.MADHAVANUNNI SRI.M.S.VINEETH THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 13.12.2022, ALONG WITH RCRev..135/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R Nos. 135 and 288 of 2017 3 **P.B SURESH KUMAR & C.S SUDHA, JJ. --------------------------------------------------R.C.R Nos. 135 and 288 of 2017 --------------------------------------------------Dated this the 13[th] day of December, 2022** ## **ORDER** ## **C.S. Sudha, J.** These Rent Control Revisions under Section 20 of the Kerala Buildings (Lease & Rent Control) Act, 1965 (the Act) has been filed against the judgment dated 15/12/2016 in R.C.A No.114/2016, which appeal has been filed against the order dated 26/02/2016 in R.C.P No. 96/2013 on the file of the Rent Control Court, Kozhikode. The petitioners in R.C.R No.135/2017 are the appellants in the appeal and the respondents in the R.C.P. The respondent herein is the respondent in the appeal and the petitioner in the R.C.P. The petitioner in R.C.R.No.288/2017 is the respondent in the appeal and the petitioner in the R.C.P. The parties and the documents will be referred to as described in the R.C.P. 2. The petitioner-landlord filed R.C.P.No.96/2013 along with five other R.C.Ps, namely, R.C.P.No.91/2013, 92/2013, 93/2013, 94/2013 and 95/2013, for fixation of fair rent under Section 5 of the Act. In R.C.P 96/2013, it was alleged that R.C.R Nos. 135 and 288 of 2017 4 the petition schedule room owned by the petitioner has been let out to the respondents for a monthly rent of ₹1,400/-. The rent for the room is quite low compared to the rent prevailing in the locality. Hence the petition, seeking fixation of fair rent at the rate of ₹4,000/- per month with 10% increase every year. 3. The respondents-tenants filed counter contending that the rent being paid is quite reasonable and that there is no necessity for fixation of fair rent as sought for by the petitioner. 4. This R.C.P was jointly tried along with the five R.C.Ps herein above referred to. PW1 was examined and Exts.A1 to A9 were marked on the side of the petitioner. RW1 to RW3 were examined and Exts.B1 to B6 were marked on the side of the respondents. The reports of the advocate commissioner has been marked as Exts.C1 to C3. On a consideration of the oral and documentary evidence and after hearing the parties, the RCC allowed the petition by fixing rent at the rate of ₹ 3000/per month from the date of petition and also ordered annual enhancement of rent at the rate of 10%. The respondents filed R.C.A No.114/2016 against the order of the RCC. The RCAA in turn allowed the appeal in part and fixed the fair rent of the room at the rate of ₹2,100/- per month with increase at the rate of 10% per annum. Aggrieved, both the petitioner as well as the respondents have come up in revision. 5. The only point that arises for consideration is whether the findings of the RCAA suffer from any illegality, irregularity or impropriety. R.C.R Nos. 135 and 288 of 2017 5 6. Heard Sri.V.T.Madhavanunni, the learned counsel for the petitioner in R.C.R.No.135/2017 and Sri.R.Sudhish, the learned counsel for the petitioner in R.C.R.No.288/2017. 7. Section 20 of the Act allows the aggrieved party to challenge the legality, regularity or propriety of the order or proceeding of an Appellate Authority. The power of revision is limited to making a scrutiny of the records to satisfy itself as to the three tests laid down in Section 20. This Court cannot convert itself into an evidence collecting or fact finding court. The scope of interference by the revisional court is restricted to cases where the RCC or RCAA have relied on irrelevant consideration, ignored valuable items of evidence, or applied wrong principles of law. Where there is no illegality, impropriety or irregularity in the orders of the RCC and the RCAA, there is no justification for invocation of the revisional jurisdiction under Section 20 of the Act. 8. The object of Section 5 of the Act is avowedly is to fix fair rent, which is the rent which a willing tenant would have paid to a willing landlord had not abnormal conditions introduced a measure of compulsion enabling landlords to force unfair bargains on the tenants. [ **Kunhammed Keyi v. Premalatha** , **1962 KLT 366** ]. While fixing fair rent, there are several factors to be taken into consideration, as held by the Division Bench of this Court in **Edger Ferus v. Abraham Ittycheria, 2004 KHC 123** . In the said decision, it has been inter alia held that the landlord or the R.C.R Nos. 135 and 288 of 2017 6 tenant as the case may be can approach the RCC for revision of rent quinquennially. While fixing the fair rent the Court is to take note of the inflation and resultant reduction in the purchasing power of money, variations in the cost of living index in the area since the commencement of the lease, demand for accommodation and availability of buildings in the locality. The cost of construction of the building including cost of labour and building materials, capital value of the entire premises, the type of construction, locational importance, situation of the tenanted premises, ground floor, first floor etc. and other advantages and amenities, such as access to places of public importance like bus stand, railway station, educational institution, hospitals etc. would also be guiding factors. It was also held that the Rent Control Court can also take into consideration the prevailing rent in the locality for similar accommodation. 9. The petitioner in this case claimed rent at the rate of ₹4000/- per month. The RCC taking into account the significance or importance of the locality in which the tenanted premises is situated, the inflationary trends, the depreciation of value of money etc. fixed the fair rent for the room at the rate of ₹3000/- per month from the date of petition with annual enhancement at the rate of 10%. The respondents in their counter have stated that they did not send a reply to the lawyer notice issued by the petitioner because they had personally met the petitioner and had discussed the matter. It was then agreed the rate of rent would be retained at ₹1400/- per month and R.C.R Nos. 135 and 288 of 2017 7 that every two years it would be enhanced by 10%. In the light of this contention of the respondents also, the rate of rent of ₹3000/- fixed by the RCC appears to be quite reasonable. Admittedly, the petition schedule room is one of the rooms in a larger building owned by the petitioner. As stated earlier, the petitioner had filed five other R.C.Ps which were jointly tried along with this R.C.P. The rate of rent fixed in the other rooms in the building is more or less at the same rate as fixed for the schedule room in this case. It is submitted by the petitioner that except the respondents-tenants in this case, all the other tenants have accepted the rent fixed by the RCC and no appeals have been preferred by them. This all the more shows that the rent fixed by the RCC is quite reasonable. There appears no error or illegality committed by the RCC in fixing the rent and therefore the RCAA was not justified in interfering with the said findings. 10. It was pointed out by the learned counsel for the respondents-tenants that the direction for enhancement of rent at the rate of 10% every year is against the dictum of the Apex Court in **Mohammad Ahmad v. Atma Ram Chauhan, AIR 2011 SC 1940** . It is true that in the aforesaid decision, the Apex Court has held that the landlord is entitled to enhancement at least at the rate of 10% every three years. Therefore to that extent, the order of the RCC needs to be modified. In the result, the R.C.R.No.288/2017 is allowed and the order of the RCC is restored. R.C.R.No.135/2017 is allowed in part. The direction for enhancement of R.C.R Nos. 135 and 288 of 2017 8 rent at the rate of 10% per annum is set aside. The petitioner shall be entitled to enhancement of rent at the rate of 10% every three years. The order of the RCC fixing the fair rent at the rate of ₹3000/- is confirmed. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** Jms/09.12