during the course of his arguments was with respect to the
area of the petition schedule room, which, according to
the landlord, was 265 sq.ft. and the tenant, 125 sq.ft.
According to him, both the authorities below went wrong
in holding that the petition schedule room is having an
area of 250 sq.ft. on the basis of Ext.C1, the report of the
Advocate Commissioner, which was marked without his
resistance being considered. A scrutiny of the relevant
records reveal that objection was filed by the tenant
against the facts reported by the Advocate Commissioner
in his report. It is urged by the learned counsel that the
Advocate Commissioner was not examined by the
landlord despite the incorporation of her name in the
witness list filed as early as on 10.12.2013 and therefore,
the opportunity to cross-examine was denied to him.
According to the learned counsel, in the said
circumstances, Ext.C1 commission report ought not have
been relied upon by the Rent Control Court. It is true, the
objections filed by the tenant find a place in the case
records forwarded to this court from the Rent Control
Court. We could not notice any falsity in the statement of
the counsel that the Commission report was marked as
Ext.C1 without examining the Advocate Commissioner.
In the above circumstances, it is pertinent to have a look
at the legal principles enunciated in Order 26 Rule 10
which is reproduced hereunder for convenient reference:
"Procedure of Commissioner:- (1) The Commissioner,
after such local inspection as he deems necessary and after
reducing to writing the evidence taken by him, shall return
such evidence, together with his report in writing signed by
him, to the Court.
(2) Report and depositions to be evidence in suit.- The
report of the Commissioner and the evidence taken by him
(But not the evidence without the report) shall be evidence
in the suit and shall form part of the record, but the Court or,
with the permission of the Court any of the parties to the
suit may examine the Commissioner personally in open
Court touching any of the matters referred to him or
mentioned in his report, or as to his report, or as to the
manner in which he has made the investigation.
(3) Commissioner may be examined in person.-Where the
Court is for any reason dissatisfied with the proceedings of
the Commissioner, it may direct such further inquiry to be
made as it shall think fit."
9.Therefore, sub-Rule (2) of Rule 10 of Order XXVI
envisages that the report of the Commissioner and the
evidence taken by him shall be evidence in the suit and
shall form part of the record. But, it is left open for the
court or either of the parties to a lis after getting
permission of the court to examine the commissioner
personally in open court regarding any of the matters
reported to by the latter in his report or the manner in
which the investigation has been conducted by him.
Upon perusal of the records of the case obtained from the
Rent Control Court, we are convinced that the
commission report was objected to by the tenant in
writing. It is the argument of Sri.George Cherian that
despite the objection raised by the tenant, the landlord
abstained himself from taking measures to examine the
Advocate Commissioner, and thereby opportunity was
denied to the former to cross-examine him. According to
him, such being the circumstances, Ext.C1 ought not to
have been relied upon by the authorities below to arrive at
the finding regarding the area of the petition schedule
premises as 250 sq.ft. We also could not find fault with
the Rent Control Court placing reliance upon Ext.C1 for
the twin reasons. Firstly, the commission was not an ex-
parte one. Secondly, the tenant has not availed of his
entitlement under Order 26 Rule 10(2) to examine the
Advocate Commissioner to elicit explanation on the
matters of resistance. If the tenant applied for
examination of the Advocate Commissioner under sub-
rule (2) of Rule 10 of Order 26, the court would not have
any other option than to grant him permission to examine
the Advocate Commissioner. In such a circumstance, it is
contemplated in the provision referred to supra itself that
the reliability of the report in evidence would be subject
to the outcome of the facts elicited in the cross-
examination. In the case on hand, the tenant, having not
applied for getting permission to exercise the statutorily
provided right of examination of Advocate
Commissioner, cannot now be heard to say before this
Court exercising the powers of revision that the Rent
Control Court went wrong in arriving at 250 sq. ft. as the
area of the tenanted premises solely on the basis of
Ext.C1. The argument of Sri.George Cherian is
untenable for the above reason and the authorities below
cannot be found fault with in taking such a stand.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE K.SURENDRA MOHAN
&
MRS.JUSTICE MARY JOSEPH
WEDNESDAY, THE 5TH DAY OF AUGUST 2015
R C Rev.No. 297 of 2014 ()
RAJESH R.KARTHA
Vs
K.A. ISMAIL
Citation: AIR 2016(NOC)292 Kerala
R.C.A.No.15 of 2014, of the Rent Control Appellate
Authority, Ernakulam and the petitioner-landlord in
R.C.P.No.82/2012 of the Rent Control Court, Ernakulam.
The respondent in the Revision Petition is the appellant in
the said R.C.A. and respondent-tenant in the Rent Control
Petition.
2.R.C.R.No.316 of 2014 is filed by the appellant in
R.C.A.No.15 of 2014 of the Rent Control Appellate
Authority, Ernakulam and the respondent-tenant in
R.C.P.No.82 of 2012 of the Rent Control Court,
Ernakulam. The respondent in the R.C.R is the
respondent in the said R.C.A. and the petitioner/landlord
in the Rent Control Petition.
3.Both the Revision Petitions cited supra are filed
challenging the fixation of divergent rates of rent by the
authorities below for the petition schedule room under
Section 5(1) of the Kerala Buildings (Lease and Rent
Control) Act, 1965, which for the sake of convenience
would hereinafter be referred to as "the Act". The parties
to these revision petitions shall also, for the sake of
convenience, be referred to hereinafter in accordance with
their original status in the R.C.P as landlord and tenant.
4.It is contended by Sri.Dinesh R.Shenoy, who has put forth
the discontentment of the landlord with the judgment
dated 14.08.2014 of the Rent Control Appellate Authority,
Ernakulam in R.C.A.No.15/2014 modifying the fair rent
of Rs.55 per sq. feet fixed by the Rent Control Court by
reducing it to Rs.45 per sq.ft. It is contended at the outset
that the Appellate Authority has proceeded on baseless
assumptions and surmises to reject the prayer for
enhancement of monthly rent at the rate of Rs.100/- per
sq.ft., that the Appellate Authority failed to appreciate or
apply the principles of law laid down by this Court in
Edger Ferus v Abraham Itticheria (2004(4) KLT 767)
and which has been upheld by the Apex Court in 2009(4)
KLT 673 that the Appellate Authority ought to have
considered the best evidence available before it consisting
of the oral testimony of P.W.1, the landlord, P.W.2 the
tenant occupying the third room from the tenanted
premises in question which form part of a larger building,
namely "Dr.Kartha Complex", Ext.C1, the commission
report and Ext.X1 series of rental receipts issued by the
landlord in the case in question to P.W.2 and finally that
the Rent Control Appellate Authority, Ernakulam ought
to have placed reliance on Ext.C1 commission report
wherein the locational advantages of the tenanted
premises and the prevalence of rent at the rate of
Rs.20,000/- per month, for an adjacent room having an
area of 160 sq.ft. situated in the building, namely, 'Kartha
Complex' of which the petition schedule room is a part,
are described.
5.It is contended by Sri.George Cherian, the learned
counsel representing the tenant that the authorities below
went wrong in holding on the basis of Ext.C1 in disregard
of the objection raised by the petitioner that the petition
schedule shop room was having an area of 250 sq.ft. in a
circumstance when the rent deed was not forthcoming and
the Advocate Commissioner was not examined that the
Appellate Authority ought to have considered that the
examination of P.W.2 was at the fag end of the trial, to the
surprise of the tenant and that on account of the collusion
allegedly involved in the evidence let in, the Rent Control
Appellate Authority ought not to have relied upon Ext.X1
series of unstamped rental receipts, despite the opposition
raised by the opposite side against its marking.
6.Though rival pleas are put forth by the respective counsel
as referred supra, the ultimate urge of both of them was
for setting aside the judgment of the Rent Control
Appellate Authority, Ernakulam in R.C.A.No.15/2014 on
the alleged ground of it being vitiated by illegality,
impropriety and incorrectness. Sri.Dinesh Shenoy, the
learned counsel also canvassed during the course of his
argument to maintain the fair rent at Rs.55/- per sq.ft. as
fixed by the Rent Control Court, Ernakulam. According
to Sri.George Cherian, even if it is accepted for the sake
of argument that the guidelines followed by both the
authorities below for fixing the fair rent are valid and
binding, then also the evidence on record falls short of
fixing Rs.45/- as the fair rent.
7.As divergent rates of rent have been fixed by the
authorities below, evidence on record is necessary to be
dealt with in detail by this Court. The evidence let in by
the landlord consists of the oral evidence of the landlord
as P.W.1, his witness as P.W.2, Exts.A1 and A2, Ext.X1
series and Ext.C1. The tenant has not let in any evidence.
8.The first challenge put forth by Sri.George Cherian
during the course of his arguments was with respect to the
area of the petition schedule room, which, according to
the landlord, was 265 sq.ft. and the tenant, 125 sq.ft.
According to him, both the authorities below went wrong
in holding that the petition schedule room is having an
area of 250 sq.ft. on the basis of Ext.C1, the report of the
Advocate Commissioner, which was marked without his
resistance being considered. A scrutiny of the relevant
records reveal that objection was filed by the tenant
against the facts reported by the Advocate Commissioner
in his report. It is urged by the learned counsel that the
Advocate Commissioner was not examined by the
landlord despite the incorporation of her name in the
witness list filed as early as on 10.12.2013 and therefore,
the opportunity to cross-examine was denied to him.
According to the learned counsel, in the said
circumstances, Ext.C1 commission report ought not have
been relied upon by the Rent Control Court. It is true, the
objections filed by the tenant find a place in the case
records forwarded to this court from the Rent Control
Court. We could not notice any falsity in the statement of
the counsel that the Commission report was marked as
Ext.C1 without examining the Advocate Commissioner.
In the above circumstances, it is pertinent to have a look
at the legal principles enunciated in Order 26 Rule 10
which is reproduced hereunder for convenient reference:
"Procedure of Commissioner:- (1) The Commissioner,
after such local inspection as he deems necessary and after
reducing to writing the evidence taken by him, shall return
such evidence, together with his report in writing signed by
him, to the Court.
(2) Report and depositions to be evidence in suit.- The
report of the Commissioner and the evidence taken by him
(But not the evidence without the report) shall be evidence
in the suit and shall form part of the record, but the Court or,
with the permission of the Court any of the parties to the
suit may examine the Commissioner personally in open
Court touching any of the matters referred to him or
mentioned in his report, or as to his report, or as to the
manner in which he has made the investigation.
(3) Commissioner may be examined in person.-Where the
Court is for any reason dissatisfied with the proceedings of
the Commissioner, it may direct such further inquiry to be
made as it shall think fit."
9.Therefore, sub-Rule (2) of Rule 10 of Order XXVI
envisages that the report of the Commissioner and the
evidence taken by him shall be evidence in the suit and
shall form part of the record. But, it is left open for the
court or either of the parties to a lis after getting
permission of the court to examine the commissioner
personally in open court regarding any of the matters
reported to by the latter in his report or the manner in
which the investigation has been conducted by him.
Upon perusal of the records of the case obtained from the
Rent Control Court, we are convinced that the
commission report was objected to by the tenant in
writing. It is the argument of Sri.George Cherian that
despite the objection raised by the tenant, the landlord
abstained himself from taking measures to examine the
Advocate Commissioner, and thereby opportunity was
denied to the former to cross-examine him. According to
him, such being the circumstances, Ext.C1 ought not to
have been relied upon by the authorities below to arrive at
the finding regarding the area of the petition schedule
premises as 250 sq.ft. We also could not find fault with
the Rent Control Court placing reliance upon Ext.C1 for
the twin reasons. Firstly, the commission was not an ex-
parte one. Secondly, the tenant has not availed of his
entitlement under Order 26 Rule 10(2) to examine the
Advocate Commissioner to elicit explanation on the
matters of resistance. If the tenant applied for
examination of the Advocate Commissioner under sub-
rule (2) of Rule 10 of Order 26, the court would not have
any other option than to grant him permission to examine
the Advocate Commissioner. In such a circumstance, it is
contemplated in the provision referred to supra itself that
the reliability of the report in evidence would be subject
to the outcome of the facts elicited in the cross-
examination. In the case on hand, the tenant, having not
applied for getting permission to exercise the statutorily
provided right of examination of Advocate
Commissioner, cannot now be heard to say before this
Court exercising the powers of revision that the Rent
Control Court went wrong in arriving at 250 sq. ft. as the
area of the tenanted premises solely on the basis of
Ext.C1. The argument of Sri.George Cherian is
untenable for the above reason and the authorities below
cannot be found fault with in taking such a stand.
10.The second point of argument to which our attention was
drawn by Sri.George Cherian, the learned counsel
representing the tenant, was pertaining to the 13 numbers
of unstamped rental receipts marked in R.C.P.No.82 of
2012 as Ext.X1 series and relied upon by the authorities
below. According to him, our interference is warranted in
the matter. It is contended, those rental receipts are
allegedly issued by the landlord (petitioner in RCP) to
P.W.2, who is allegedly another tenant in occupation of a
room adjacent to the tenanted shop-room in question and
forming part of the larger building, Dr. Kartha complex
belonging to the former. According to the counsel, the
Rent Control Court, Ernakulam has committed a grave
error in marking the rental receipts after taking notice of
its' non-bearing of stamps. It is also contended that the
court should not have relied on those while deciding the
issue on hand.
R.C.R.Nos.297 & 316/2014
-:13:-
11.It is clear on a glance at Ext.X1 series that those do not
bear stamps. The endorsement on the docket of the
respective documents show that the Rent Control Court
has noticed the error at the initial stage of its' reception,
but overlooked that while marking it. It is also not
indicated from the materials available with the case
records whether penalty was imposed and paid. Such an
argument was also not forthcoming from Sri.Dinesh
Shenoy, the learned counsel representing the landlord. It
is the argument of Sri.George Cherian that, in the event of
non-production of the rental agreement by P.W.2 despite
his admission in the box that it is available with him, the
Rent Control Court ought not have relied upon it in the
matter of fixation of fair rent. It is contended by him that
the said circumstance is a sufficient ground warranting
this Court's intervention.
R.C.R.Nos.297 & 316/2014
-:14:-
12.In view of the arguments, we feel it appropriate to have a
look at the law that governs the question. Chapter IV of
the Kerala Stamp Act, 1959 provides for the way in which
the instruments not duly stamped are to be dealt with. As
per Section 33 contained therein, a duty is cast upon
every person who has the authority to receive evidence
and every person in charge of a public office before
whom an unstamped instrument is usually produced, to
impound the same and sub-section (2) of Section 33
contains the procedure to be followed with and it is
quoted hereunder for convenient reference.
"For that purpose every such person shall examine
every instrument so chargeable and so produced or
coming before him, in order to ascertain whether it is
stamped with a stamp of the value and description
required by the law in force in the State when such
instrument was executed or first executed."
13.The records make it clear that the rental receipts have
R.C.R.Nos.297 & 316/2014
-:15:-
been marked and admitted in evidence through P.W.2
during his examination without the factum of its' non-
bearing of stamps being adverted to by the Rent Control
Court. It is pertinent to note that the learned counsel
appearing for the tenant in the Rent Control Court has
also failed to raise opposition on the ground while
marking it. In this connection, we accept the dictum laid
down by this Court in George v. Subordinate Judge
(1976 K.L.T. 700). The facts of the case reveal a
circumstance where an insufficiently stamped document
happened to be admitted by the trial court and directions
are issued subsequently to the party who produced the
same to pay the required stamp duty and fine. The court
held:-
"After admitting an instrument, which is either not
stamped or not sufficiently stamped in evidence nothing
can be done in the matter of impounding by that court."
R.C.R.Nos.297 & 316/2014
-:16:-
14.When opposition was raised by the opposite party while
tendering an unstamped instrument in evidence and it was
marked "subject to objection" it has a clear indication that
the objection was not judicially determined or in other
words, the court has not applied its mind as to its
admissibility in evidence and a conclusion is impossible
that the trial court has admitted the document in evidence
on endorsing the marking upon it. Only after considering
the objections with a judicial mind and upon admitting
the document in evidence that its admissibility would
become unquestionable. In the case on hand, it is worthy
of noting that the marking of Ext.X1 series was not
subject to objection.
15.The legal principle contained in Section 35 of the Kerala
Stamp Act also is relevant in the context and it is quoted
hereunder for convenience.
R.C.R.Nos.297 & 316/2014
-:17:-
"35.Admission of instrument where not to be
questioned.-- Where an instrument has been admitted in
evidence, such admission shall not, except as provided
in Section 59, be called in question at any stage of the
same suit or proceeding on the ground that the
instrument has not been duly stamped."
16.Therefore, a document can be said to be admitted in
evidence only when it is formally proved and tendered in
evidence and marked after affixing the necessary
endorsement on it under Order 13 Rule 4 of the Code of
Civil Procedure. Once admitted, as provided in Section
34 of the Kerala Stamp Act, its admission could only be
questioned by a Court of the category referred to in
Section 59 of the Kerala Stamp Act if that Court is of
opinion that it is insufficiently stamped, such Court may
determine the stamp duty payable and require the person
in possession of the document to produce it for the
purpose of impounding. Section 59 is also quoted for
R.C.R.Nos.297 & 316/2014
-:18:-
convenient reference as follows:-
"59.Revision of certain decisions of courts regarding the
sufficiency of stamps.--(1) When any Court in the exercise
of its Civil or Revenue jurisdiction or any criminal court in
any proceeding under Chapter XII or Chapter XXXVI of
the Code of Criminal Procedure, 1898, makes any order
admitting any instrument in evidence as duly stamped or as
not requiring a stamp, or upon payment of duty and a
penalty under Section 34, the Court to which appeals lie
from, or references are made by, such first mentioned Court
may, of its own motion or on the application of the
Collector, take such order into consideration.
(2) If such court, after such consideration, is of opinion that
such instrument should not have been admitted in evidence
without the payment of duty and penalty under Section 34,
or without the payment of a higher duty and penalty than
those paid, it may record a declaration to that effect, and
determine the amount of duty with which such instrument
is chargeable, and may require any person in whose
possession or power such instrument then is, to produce the
same, and may impound the same when produced.
(3) When any declaration has been recorded under sub-
section (2), the court recording the same shall send a copy
thereof to the Collector and, where the instrument to which
it relates has been impounded or is otherwise in the
possession of such court, shall also send him such
R.C.R.Nos.297 & 316/2014
-:19:-
instrument.
(4) The Collector may thereupon, notwithstanding anything
contained in the order admitting such instrument in
evidence, or in any certificate granted under Section 41, or
Section 42, prosecute any person for any offence against
the stamp-law which the Collector considers him to have
committed in respect of such instrument.
Provided that--
(a) No such prosecution shall be instituted where the
amount (including duty and penalty) which, according to
the determination of such court, was payable in respect of
the instrument under Section 34, is paid to the Collector,
unless he thinks that the offence was committed with an
intention of evading payment of the proper duty;
(b) except for the purpose of such prosecution, no
declaration made under this section shall affect the validity
of any order admitting any instrument in evidence, or of
any certificate granted under Section 41."
17.Therefore, prior to admitting an insufficiently stamped
document produced, only one opportunity is given to the
opposite party to object to. As per Section 59 of the
Kerala Stamp Act, the further opportunity to challenge
will be on the District Collector/State but only subject to
R.C.R.Nos.297 & 316/2014
-:20:-
the directions of the Appellate Court to take appropriate
action. The power can be exercised by the Appellate
Court only when the court below has passed an order
admitting the unstamped instrument in evidence.
18.In the case on hand, the unstamped rental receipts, 13 in
numbers have been duly marked and admitted in evidence
without any objection being raised against its
admissibility on the reason that those bear no stamps. At
the tenant's instance, the Rent Control Court's order of
enhancement of rent was appealed against, but the Rent
Control Appellate Authority failed to exercise the power
of revision vested in it under Section 59 of the Kerala
Stamp Act, 1959. Therefore, in view of the mandate of
Section 35 of the said Act, the admissibility of the rental
receipts already admitted in evidence as Ext.X1 series
cannot be questioned before this Court, which now is in
R.C.R.Nos.297 & 316/2014
-:21:-
seizin of the matter, being the revisional authority. To
conclude, the authorities below were absolutely not in
error in dealing with the matter and the argument
advanced against the reliability of those documents is
untenable.
19.The next argument advanced by the learned counsel for
the tenant was with respect to the reliance placed by the
authorities below on the testimony of P.W.2. According
to him, P.W.2 was examined at the fag end of the trial
without his name being incorporated in the witness list
filed on October, 2013. According to him, the authorities
below went wrong in not appreciating that aspect though
they were apprised of that in time. According to him, the
landlord was permitted to let such evidence on record and
in the circumstances a colour of collusion cannot be ruled
out. To strengthen his argument further the learned
R.C.R.Nos.297 & 316/2014
-:22:-
counsel has drawn our attention to the evidence of P.W.2
and addressed that the rental agreement by virtue of
which the tenanted premises was let out to P.W.2 by the
landlord in the case on hand is not produced despite his
positive response to the question put by the tenant's
counsel in cross-examination regarding its availability
that, it will be produced. It is true the rental agreement is
the apt and proper document to speak about the rent
agreed among the parties to be paid in respect of the
tenanted premises and it is the bounden duty of the
landlord to produce the original with him to substantiate
the same, especially when collusion is alleged.
Admittedly, according to P.W.2, the rental agreement is
available with him, but he failed to place that on record.
The landlord could have very well taken measures to
procure its production, but he failed. Instead, Ext.X1
R.C.R.Nos.297 & 316/2014
-:23:-
series was brought in. P.W.2 has also a case in the box
that he was not insisted to produce that by his landlord,
who is none other than the landlord in the case on hand,
lest, that would have been produced by him. Anyway, the
rental agreement, the appropriate document on the basis
of which the tenanted premises has been let out to P.W.2
is not available before the Rent Control Court. These
aspects to a certain extent lend support to the address by
the tenant that the evidence let in by P.W.2 was the
outcome of the collusion between the landlord and P.W.2.
Being an authority sitting in revision, there is limitation
for us to interfere. The Apex Court has also reminded us
through the dictum laid down in Hindustan Petroleum
Corporation Ltd. V Dildahar Singh (2014(4) KLT
182) about the realm within which the powers of revision
would be exercised. The relevant paragraph is
R.C.R.Nos.297 & 316/2014
-:24:-
reproduced for reference:
"45. We hold, as we must, that none of the above Rent
Control Acts entitle the High Court to interfere with the
findings of fact recorded by the First Appellate Authority
because on re-appreciation of the evidence, its view is
different from the Court/Authority below. The
consideration or examination of the evidence by the
High Court in revisional jurisdiction under these Acts is
confined to find out that finding of facts recorded by the
Court/Authority below is according to law and does not
suffer from any error of law. A finding of fact recorded
by Court/Authority below, if perverse or has been arrived
at without consideration of the material evidence or such
finding is based on no evidence or misreading of the
evidence or is grossly erroneous that, if allowed to stand,
it would result in gross miscarriage of justice, is open to
correction because it is not treated as a finding according
to law. In that event, the High Court in exercise of its
revisional jurisdiction under the above Rent Control Acts
shall be entitled to set aside the impugned order as being
not legal or proper. The High Court is entitled to satisfy
itself the correctness or legality or propriety of any
decision or order impugned before it as indicated above.
However, to satisfy itself to the regularity, correctness,
legality or propriety of the impugned decision or the
order, the High Court shall not exercise its power as an
R.C.R.Nos.297 & 316/2014
-:25:-
appellate power to re-appreciate or re-assess the
evidence for coming to a different finding on facts.
Revisional power is not and cannot be equated with the
power of reconsideration of all questions of fact as a
court of first appeal. Where the High Court is required
to be satisfied that the decision is according to law, it
may examine whether the order impugned before it
suffers from procedural illegality or irregularity."
20. The finding of the authorities below on the matters on
which elaborate discussion is already had by us supra
being based on sound principles of law and appreciation
of evidence in its correct perspective. Therefore, in view
of the dictum cited supra, interference by this Court on
those aspects is absolutely unwarranted.
21.Upon perusal of the order of the Rent Control Court,
Ernakulam and the judgment of the Rent Control
Appellate Authority, Ernakulam, it could be gathered that
both the authorities have fixed the fair rent divergently by
enhancing it, placing reliance on the evidence on record
R.C.R.Nos.297 & 316/2014
-:26:-
indicative of the locational and commercial importance of
the locality where the tenanted premises on hand is
situated. The approach of both the authorities below was
in favour of the landlord, but there is divergence in the
rate of fair rent fixed. In the circumstances, the evidence
on record need to be re-evaluated in the light of the
arguments advanced by the rival parties to these
revisions.
22.Prior to adverting to the evidence let in by the parties in
the case on hand, it would be relevant to have a look at
the parameters laid down by a Division Bench of this
Court in Edger Ferus v Abraham Itticheria (2004(1)
KLT 767), which have also been upheld by the Apex
court (2009 (4) K.L.T. 673). The guidelines enumerated
therein are not exhaustive. Those are some among the
parameters meant to be looked into by the courts
R.C.R.Nos.297 & 316/2014
-:27:-
empowered by 'the Act' to deal with the question of
fixation of fair rent. The parameters are quoted hereunder:
"................7. Rent Control Court while fixing fair rent
could 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 commencement of
the lease, demand for accommodation and availability
of the buildings in the locality.
8. The cost of construction of the building including
cost of labour and building materials, capital value of
the entire premises in the enjoyment of the tenant
inclusive of the value of the land under the actual
enjoyment of the tenant whether immediately
appurtenant to the building or otherwise, type of
construction, locational importance, situations 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.
9. The Rent Control Court will also take into
consideration the prevailing rent in the locality for the
same and similar accommodation. The type of
construction, the amenities, general or special provided
R.C.R.Nos.297 & 316/2014
-:28:-
in the building, the open land attached to the building,
whether residential or non-residential are also to be
borne in mind.
10. Annual rental value of the building at the time of
filing the application for fair rent may also be taken as
a guiding factor along with others.
11. Revision or fresh imposition of municipal taxes,
cess, rate in respect of other increase in the charge of
electricity or water consumption by the tenant and also
by the landlord and increase on account of sufficient
repairs would also be taken note of by the Rent Control
Court.
12. The Rent Control Court can while resolving any
rent control dispute on an application either by the
landlord or tenant examine whether the rent is static
and requires revision and fix fair rent accordingly
permitting the parties to adduce evidence."
23.The parameters cited supra are directives to the
authorities who are shouldered with the power to fix fair
rent and they are expected to exercise the discretion from
within that sphere. Or in other words, the fixation of fair
rent should be on sound reasoning and based on
R.C.R.Nos.297 & 316/2014
-:29:-
satisfactory and sufficient authoritative materials
indicative of the aforesaid parameters.
24.Before adverting to the evidence on record, it is apposite
to have a discussion on the pleas of the landlord in the
Rent Control Petition.
25.The landlord had pleaded several factors in paragraph 4
and 5 of the Rent Control Petition to apprise the court that
the tenanted premises was situated in an area of high
locational and commercial importance. The relevant
paragraphs are quoted hereunder for reference:
"4)The petition schedule building situate in the ground
floor of a multi storied building namely Dr.Kartha
Complex. The said building situate in the junction
where Paramara Road joins Banerji Road. On the
southern side of the said building is Banerji Road and
on the western side is Paramara Road. The said
building has got direct access from the aforesaid two
public roads. The land on which the said building
situates is located in a commercial area where so many
commercial buildings dealing with various items are
R.C.R.Nos.297 & 316/2014
-:30:-
located. The multi storied building Dr.Kartha
Complex of which the building let out to the
respondent forms part also accommodates various
commercial as well as other establishments. There are
various banks and commercial institutions,
educational institutions, hotels, clinics, petrol and
diesel pumps, shopping centres etc. in the vicinity of
the said building. The bus stops situate very adjacent
to the said building. There are various public utility
services in the locality where the building is located.
The North Railway station is hardly 250 metres away
from the said building. Kaloor junction and
Kacheripady junction, which are two important
commercially potential areas, are in the vicinity of the
said building.
5)..........Since commencement of the lease
arrangement, there is inflation and resultant reduction
in the purchasing power of money, increase in the cost
of living index, cost of construction of the building,
high demand for accommodation and availability in
the local authority where the building situate. The
importance of the area where the building situate, the
capital value of the building, presence of places of
public importance in the vicinity of the petition
schedule building including the prevalent rate of rent
of the buildings in the locality and revision of
R.C.R.Nos.297 & 316/2014
-:31:-
municipal taxes and other statutory duties etc., make
the building let out to the respondent, a commercially
potent one. The aforesaid amenities attached to the
building let out to the respondent warrants re-fixation
of the monthly rent."
26.It is pertinent to note that the landlord as P.W.1 has
sworn those matters in the proof affidavit filed by him in
lieu of chief examination and despite the lengthy cross-
examination with which he was subjected to nothing
adverse could be elicited by the tenant. P.W.2 is the
tenant of the landlord in question occupying the third
room from the tenanted premises situated in 'Dr.Kartha
Complex'. He has stated in the box in categoric terms that
the premises in his occupation was taken on lease by him
in the year 2011 for a monthly rent of Rs.12,000/-.
Ext.X1 series of rental receipts (13 in numbers) admitted
in evidence lend support to the oral evidence tendered by
P.W.2 and nothing was elicited in his cross examination
R.C.R.Nos.297 & 316/2014
-:32:-
liable to discredit him. In Ext.C1, the Advocate
Commissioner has reported on the basis of the
information obtained during inspection of the tenanted
premises that the shop room was let out to P.W.2 by the
landlord for Rs.12,000/-. The Advocate Commissioner
has also reported in paragraphs 1 and 3 of Ext.C1, the
commercial potentiality and importance of the area where
the petition schedule building is situated in the following
words:-
"1. .........The shop is situated near the bus stop. From
the said bus stop just turned to the plaint scheduled
room. The extended portion separated from the foot
path of the road and the drainage by a small separating
wall. That portion also tiled.
3. ......... The locality seems to be of very high
commercial potentiality due to junction point of
Paramara road and Banerji Road, the famous North
Town Hall situated just opposite of said shop and 300
meter away North Railway station."
27.Therefore, testimony of P.W.1 and Ext.C1 convincingly
R.C.R.Nos.297 & 316/2014
-:33:-
establish that the tenanted premises in question forms part
of a larger building namely 'Dr.Kartha Complex' situated
in one of the most commercially and locationally
important area of the Kochi city. The special locational
advantages with which the tenanted premises was blessed
with are also brought on record by the landlord by
mounting the box and also by taking out a commission.
28.The evidence let in also shows that the tenanted premises
is situated at the ground floor of a larger building namely
'Dr.Kartha Complex' and it has the added advantage of
frontage of two famous thoroughfares of the Kochi City
namely Banerjee Road and Paramara Road. The fact that
the tenanted premises is situated near to the prestigious
Kerala High Court building, North Town Hall and North
Railway Station also add colour to the importance of the
area. Nothing stands in the way of this Court taking
R.C.R.Nos.297 & 316/2014
-:34:-
judicial notice that the tenanted premises is surrounded by
important institutions like Church, Temple, educational
institutions like Schools and Colleges. The authorities
below have taken note of and appreciated all those factors
while fixing the rate of rent.
29.The contention regarding the old nature of 'Dr.Kartha
Complex" of which the tenanted premises forms a part
was taken by the tenant in its objection filed at the initial
stage itself. It is contended in the objection that the
tenanted premises was let out to him in the year 1984. It
is also contended that 'Dr.Kartha Complex' was a
construction during the period 1978-1979. There is
absolutely no denial or dispute from the landlord of the
said contention of the tenant. The only dispute of the
landlord is not with respect to the oldage of the building
but only with regard to the oldest nature of the building
R.C.R.Nos.297 & 316/2014
-:35:-
and that is evident from his statement:
".yC^5a{" M^7fJ /xUa" I]A" f:K
f5G_?N^fCKa IyE^W Vx_O\o."
30.The Advocate Commissioner has also reported in Ext.C1
on the basis of the information obtained from the tenant's
son that the tenanted premises was taken on rent in the
year 1984, which factum was neither controverted nor
disproved by the landlord. The rental agreement is also
not forthcoming in evidence. Therefore, there is
absolutely no reason to doubt the version of the tenant
that the tenanted premises is part of a building of not less
than 36 years old. Neither the oral evidence of P.W.1 nor
that of P.W.2 or Ext.C1 would direct us to form a
conclusion that improvements or infra-structures of the
modern nature have been extended to the tenanted
R.C.R.Nos.297 & 316/2014
-:36:-
premises so as to increase its commercial potentiality,
during the years of its occupation and enjoyment by the
tenant. In the said circumstances, this Court finds
absolutely no error in the conclusion drawn by the
authorities below, on the basis of the evidence available
that the building was an old one.
31.The overall analysis of the evidence on record makes it
clear that the relatively old age of the building and the
abstinence of the landlord from making improvements,
facilities or amenities to the tenanted premises are the
other factors pleaded and proved by the tenant to impress
the court that the tenanted premises do not adapt to the
requirements of a modern man or bear the facilities and
amenities available in a newly constructed building.
32.A plea of flooding of the tenanted premises with rain
water on account of the lifting of the road level due to
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-:37:-
repeated tarring is shown as a reason by the learned
counsel for the tenant liable to attenuate the importance of
the tenanted premises. With regard to the contention of
the tenant in his objection that the building 'Kartha
Complex' is situated at a lower level from the foot path is
admitted by the landlord, but, he categorically denied the
rest of the contentions that the tenanted premises being
situated in the ground floor would be flooded in rainy
season. The tenant has also failed in adducing any
independent positive evidence in that regard. Admittedly,
even according to the landlord, the road has been tarred
repeatedly but that has not led to the raising of the road
level. It is pertinent to notice that despite raising of these
contentions, the tenant did not let in any evidence in
support thereof. He has not even mounted the box to let
in oral evidence. Though a commission was taken up by
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-:38:-
the landlord after serving notice upon him, he failed to
take measures to substantiate the contented facts by
availing the services of the Advocate Commissioner.
Therefore, the tenant by any stretch of imagination could
be benefited by reiterating the argument on that aspect,
before us. Therefore, we could not see any merit in the
counsel's argument that the authorities below have lost
sight of those aspects while forming its opinion as to the
fair rent to be fixed.
33.Our attention was also drawn by Sri.George Cherian to
the fact that the bus stop which was available in front of
the tenanted premises was shifted to some other place on
account of the ongoing construction work of Metro Rail
and the North Overbridge and for the said reason the
commercial potentiality of the tenanted premises has been
considerably reduced. According to him, parking space is
R.C.R.Nos.297 & 316/2014
-:39:-
lacking for the tenanted premises in question and that
factor also tend to attenuate the commercial importance.
34.It is pertinent to note from the order of the Rent Control
Court and the judgment of the Rent Control Appellate
Authority that both the authorities have concurred in
taking the view that parking space and bus stop facility
are lacking for the tenanted premises. The relevant part in
the order of the Rent Control Court leading to the fixation
of fair rent at the rate of Rs.55 per Sq.ft. is quoted for
reference to ascertain how the evidence before it was
appreciated by the Rent Controller:-
"14. When the evidence of PW2 and Exts.X1 series
are taken into account, the rate of rent of the room
of PW2 seems to be Rs.75/- per square feet. PW2
stated that, the rent was fixed in 2011. But as
admitted by PW1, recently the construction of the
Metro Rail is going on near to the petition schedule
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-:40:-
building. The evidence of PW1 and PW2 as a
whole reveals that, recently the bus stop has been
shifted to another place. It is only a matter of
inference that, major construction projects near to a
building complex will have it's own consequences
and adverse impacts on the conveniences, amenities
and commercial importance of the locality.
Naturally that may result in the profitability of the
business also. It is conceivable from the evidence
that during rainy season, though temporarily, drain
water used to enter into the building. That also may
affect the amenities in the building. When all the
above facts, age of the building, rate of inflation,
fall in money value etc. are considered, I feel that,
Rs.55/- can be fixed as the fair value of the building
with effect from April 2012 onwards with 15%
enhancement of the existing monthly rent
quinquennially. So the aggregate monthly rent for
250 Sq.ft @ Rs.55/- may come to Rs.13,750/-."
35.The Rent Control Appellate Authority in paragraph 13 of
its judgment has considered this aspect in the following
lines:-
"13. PW1 is the respondent, PW2 is a tenant in the nearby
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-:41:-
room which also forms part of the same building.
Although PW1 denied, PW2 admitted that the bus stop
near the petition schedule building was shifted to another
place and that no parking facility has been available in the
area. PW2 also agreed to the suggestion that the petition
schedule building is the oldest building in the locality. It
shows that the petition schedule building has a
disadvantage of its oldage and of non-availability of
parking space. When the bus stop in front was moved to
another place, assemblage of the people in front is
considerably reduced. That also is a factor affecting
commercial potentiality of the building. In fact, these
aspects were taken into consideration by the trial court.
However, considering the evidence of PW2 and Ext.X1
series, the trial court found that Rs.75/- per sq. feet was
being paid to a nearby room as rent and therefore Rs.55/-
per sq. feet should be the fair rent of the petition schedule
building. "
R.C.R.Nos.297 & 316/2014
-:42:-
36.It is pertinent to note now whether the authorities below
have appreciated the evidence in its proper perspective.
The relevant portion of P.W.1's testimony on the context
is:
"&\aU LXm Xmx^a_g\Am gI^5aK LXa5Z
YV<_MG_5 f5G_?J_fa fDAaUVJm L^HV<_
gy^A_\^Cm H_VJ^ym.e%U_f? bus shelter
)I^O_xaKa.e metro Rail fa H_VN^CUaN^O_ bus
stop %U_?aKm N^x_O_G_g\o? (Q)e'gM^]a" I?_E^ym
UV" 5?Oaf?eside W DfKO^Cm.(A). 5?Nay_Oaf?
5ay:nm N^y_Og\o IaD_O LXm Xmgx^Mm?efD^Ga
I?_E^y^Cm.e& bus stop IxN^x gy^A_W 5ay:na
N^y_O^Cm XmE_D_ f:OnaKfDKa IyE^W
Vx_O\o."
37.The relevant portion of deposition of P.W.2, wherein this
context is referred is quoted hereunder.
"4..fa 5?Nay_Oaf? NaX UVJ^O_xaKa NaOm North
bus stop.e'gM^Z NaX UVJ\o. ................ .fa
5?Nay_Oaf? Ix_XxJm UI_ I^VAm f:On^X
R.C.R.Nos.297 & 316/2014
-:43:-
Xl5xcN_\o.eIxN^xgy^A_fa 'xaUVUa" no-parking
area &Cm."
38.In re-examination it was spoken by P.W.2
".fa 5?Oaf? NaO_W Townhall M^7Jm parking yard
)Im."
39.It is also pertinent at this juncture to read his testimony
"Lovely Corner W H_Km 3-^ NfJ shutter &Cm .fa
5?."
40.In Ext.C1, the report of the Advocate Commissioner, the
location of the tenanted premises is described in
paragraph 1 as follows:
"The plaint schedule room is facing towards west of
Paramara road and south to Banerji road of the
ground floor of the Dr.Kartha's complex. The
petition scheduled room is known as Lovely Corner."
41.Further in the same paragraph description continues to
the effect
R.C.R.Nos.297 & 316/2014
-:44:-
"1. .........The shop is situated near the bus stop. From
the said bus stop just turned to the plaint scheduled
room. The extended portion separated from the foot
path of the road and the drainage by a small separating
wall. That portion also tiled."
42.It is further reported by the Advocate Commissioner in
Ext.C1:
"The shop is situated near the bus stop.
From the bus stop just turned to the
plaint scheduled room."
43.Moreover, Ext.C1, the report of the Advocate
Commissioner is crucial on the point when it states:
"The site is situated near roads crossing
junction, North over bridge, Railway
Station, Bus stop and Paramara temple."
44.These factors remain uncontroverted also. The tenant did
R.C.R.Nos.297 & 316/2014
-:45:-
not let in oral evidence of his own in support of the plea.
P.W.1 in the box during cross-examination has taken the
stand of total denial. P.W.2, his witness who is a tenant
of the third room from the tenanted premises since 2011
has let in oral evidence that the bus stop available in
front of his shop was shifted therefrom. But, the place
whereto it was shifted was not spoken by P.W.2.
45.Now coming to the evidence on record, P.W.2 has
undisputedly stated in the box in response to a specific
question put by the learned counsel for tenant during
cross examination that parking space is available for two
wheelers and that the bus stop in front of the tenanted
premises leased out to him by P.W.1, which is part of
'Dr.Kartha Complex' has been shifted from its front side
to a nearby side. P.W.2 has never spoken that the bus stop
has been shifted to a far-off place owing to the
R.C.R.Nos.297 & 316/2014
-:46:-
construction of Metro Rail and the North Overbridge. It
is also pertinent to note at this juncture that the shop room
occupied by P.W.2 is the third room from the tenanted
premises in question.
46.The analysis of the evidence on record makes it clear
that, the tenant has thoroughly failed to adduce
convincing evidence that the facilities of parking space
and bus stop were not available to the tenanted premises.
But, the authorities below have appreciated the evidence
on record in the wrong perspective to conclude that the
tenant was successful in establishing that the commercial
potentiality of the tenanted premises has been diminished
considerably due to lack of parking space and bus stop
near to the tenanted premises in question.
47.Therefore, we have no hesitation to state that the
authorities below have appreciated the evidence on record
R.C.R.Nos.297 & 316/2014
-:47:-
in its wrong perspective. Both the authorities below have
laid considerable importance to the factum of
deterioration of commercial potentiality of the locality on
account of the shifting of bus stop and the non-
availability of the parking space due to the ongoing
construction work of Metro Rail and North Overbridge,
which was totally a misconception of the evidence on
record.
48.On a re-appreciation of the totality of the evidence on
record in that connection, it could be gathered that space
is available near the tenanted premises at its western side
for parking of two wheelers and therefore, it is improper
for the tenant to state that the customers find it difficult to
attend the shop.
49.Therefore, the only conclusion possible from the
evidence referred supra was that the tenanted premises is
R.C.R.Nos.297 & 316/2014
-:48:-
situated very near to the bus stop. Therefore, it is clear
from the evidence that the bus stop which was originally
available just in front of the premises let out to P.W.2 has
been shifted to a place near to the tenanted premises in
question occupied by P.W.1. Therefore, the tenant's
attempt to establish that the commercial potentiality of the
tenanted premises has been deteriorated due to shifting of
bus stop and taking over of space for parking vehicles by
the ongoing construction works has turned futile.
50.There is every reason for us to conclude that, the oral
evidence let on record by P.W.1, P.W2 and Ext.C1,
satisfactorily establish the commercial importance of the
locality where the tenanted premises is situated. The
several factors to which our attention was adverted to by
the tenant, if established by cogent and satisfactory
evidence, undoubtedly would have directed us to draw a
R.C.R.Nos.297 & 316/2014
-:49:-
conclusion that the commercial viability of the area has
been reduced. But in view of the foregoing discussions,
we are forced to take a stand that the tenant was
unsuccessful in establishing those pleaded factors, having
the trend to attenuate the importance. It is also beyond
the scope of imagination of a prudent man that the
construction works of the Metro Rail and the North
Overbridge would reduce the commercial potentiality of
the locality. The claim of P.W.1 that the tenanted
premises is situated in the heart of Kochi city with the
prestigious institutions like the High Court of Kerala,
Town Hall and the North Railway Station functioning
around in reasonable distance would be diminished. No
doubt, those could only bring in tremendous
improvements in the areas and achievements to the people
engaged in various business activities in and around the
R.C.R.Nos.297 & 316/2014
-:50:-
area. It is also pertinent to note that the business which
the tenant was conducting in the tenanted premises is only
sale of mobile phones and its accessories. Normally, in
business of the nature, customers to a larger extent, would
be people maintaining acquaintance with the shop owner.
Chances are rare for strangers or passersby to visit the
shop for buying mobile or its accessories.
51. Therefore, the tenant has thoroughly failed to establish
that the parking facility available there originally was
taken away on account of the construction work of Metro
Rail and the North Overbridge. One important aspect to
be noted at this juncture is that with all these limitations
projected in the form of contentions that the tenant is
sticking on to the tenanted premises and conducting the
business for approximately about 36 years.
52.According to the landlord, the tenanted premises was let
R.C.R.Nos.297 & 316/2014
-:51:-
out to the tenant in the year 1984 for a rent of Rs.500/-
and it was enhanced to Rs.1,500/- in the year 2006. The
rent has remained static since then and in the
circumstances, it was sought to be enhanced by the
landlord by preferring R.C.P No.82/2012. The Rent
Control Petition in question was filed by the landlord
claiming enhancement of rent after a time span of 7 years.
The evidence makes it clear that the tenanted premises
was let out in the year 1984 and it is part of a larger
building namely 'Dr. Kartha Complex', which admittedly
was constructed during the period 1978-1979. The
building therefore, is approximately 34 - 35 years old and
admittedly, even according to the landlord no
improvements have been effected by him eversince.
Though the tenant claims to have effected improvements
to add facilities to the building, evidence to that effect is
R.C.R.Nos.297 & 316/2014
-:52:-
not forthcoming except Ext.C1 wherein the 'tiled' nature
of the floor has been reported. But, whether it was there
originally or else, it was fixed later cannot be ascertained
from the evidence now on record. No evidence has also
been let in to show that the ongoing construction of Metro
Rail and the North Overbridge has impacted in reducing
the locational and commercial importance of the tenanted
premises. Though the testimony of P.W.2 and Ext.X1
series show that a room near to the tenanted premises and
located in the very same larger building of which the
tenanted premises is a part, fetches, monthly rent of
Rs.12,000/- and Ext.C1 shows that another tenanted
premises situated adjacent to the one on hand fetches
Rs.20,000/- as monthly rent, no materials are forthcoming
to establish the common amenities or facilities available
to the said two premises to consider identical rent. The
R.C.R.Nos.297 & 316/2014
-:53:-
Advocate Commissioner has also omitted to take note of
those aspects in Ext.C1.
53.A prudent man cannot lose sight of the improvements
that have taken place during the years till date. The Rent
Control Court has adverted to all the factors relied upon
by the landlord and to which its attention was drawn and
granted enhancement to the tune of Rs.55 per Sq.ft.
against the landlord's claim of Rs.72 per Sq.ft. by its order
dated 21.12.2013.
54.The question that is now left for our consideration is
whether the finding of the Appellate Authority fixing the
fair rent of the building in question at Rs.11,250/-
(45 x 215) per mensom calculating the same at Rs.45 per
Sq.ft is sustainable.
55.We would notice an observation by the Rent Control
Appellate Authority in its judgment that evidence of other
R.C.R.Nos.297 & 316/2014
-:54:-
tenants of the premises near and adjacent to the tenanted
premises in question has not been brought in by the
landlord in question and that is fatal. The relevant portion
is contained in paragraph 16 of the judgment and is
quoted hereunder for reference:
"The evidence let in by the respondent is the oral
testimonies of himself and P.W.2 and Ext.X1 series. So
many other tenanted premises are there nearby. No
such person has been examined. As pointed out
above, evidence of P.W.2 and Ext.X1 series cannot be
the sole criteria to fix fair rent of the petition schedule
building. From the available evidence a meticulous
calculation of the fair rent of the petition schedule
building, is not possible. On taking into account the
factors, such as locational importance of the petition
schedule building, possible commercial viability of the
building, inflation and resultant reduction in the
purchasing power of money, variation in the cost of
living index in the area after commencement of the
lease and the like factors, I am of the view that the
rent fixed by the trial court is somewhat high. It is
also relevant in this context that the present rent is
Rs.1,500/- and there must be some relativity to the
R.C.R.Nos.297 & 316/2014
-:55:-
present rent while fixing the fair rent. Accordingly, I
hold that the fair rent of the petition schedule building
shall be Rs.45/- per sq.ft. The point is answered
accordingly."
56.It is true while fixing the fair rent of Rs.55/- per sq.ft. the
Rent Control Court was carried away by a misconception
of the oral evidence let in by P.W.1, P.W.2 and Ext.C1, the
commission report on certain aspects. The said authority
has also failed to notice while relying upon Ext.X1 series
that materials to have a comparative study of the nature
and amenities attached to the tenanted premises in
question and that let out to P.W.2, are clearly lacking.
57.It is true, the tenants of adjacent tenanted premises,
though so many are situated around, were not examined.
But, the tenant of the premises situated in the immediate
proximity and part of the very same larger building of
which the tenanted premises in question is also a part was
R.C.R.Nos.297 & 316/2014
-:56:-
examined and in view of the dictum in Midland Traders
(M/s.) and others v Miriam Elias and others (2010 (3)
KHC 778) placed for reliance before us, it is the apt and
appropriate evidence for the authority to be relied upon.
The dictum in the decision cited supra is, therefore,
quoted for reference:
"Evidence regarding the rent fetched by the upper
floors of the very same building will have more
relevance in fixing fair rent."
58.Viewed in the context, the room tenanted to P.W.2, of
which Ext.X1 series are related to is the third room from
the tenanted premises in question and is situated in the
same larger building, 'Dr.Kartha Complex'. There is
nothing wrong in relying upon Ext.X1 series of rental
receipts pertaining to that tenanted premises as one of the
parameters in the matter of fixation of fair rent for the
R.C.R.Nos.297 & 316/2014
-:57:-
tenanted premises in question. The Rent Control Court,
Ernakulam has also acted accordingly. The Rent Control
Appellate Authority's view that rather than the materials
relating to a room adjacent to the tenanted premises in the
same larger area, that of a tenanted premises of an
adjacent building would be more appropriate to be
considered is incorrect in view of Midland's case. In our
view, both the authorities below have failed to note that
evidence was not before them to have a comparative
study of the tenanted premises in the case in question and
that let out to P.W.2. The oral evidence of P.W.2 only
show that the premises was let out to him in the year
2011. No evidence has been let in to convince us of the
facilities and amenities available to the premises let out to
P.W.2. The question mooted now is whether in the
absence of evidence as to the common features available
to the adjacent rooms, could that be basis for fixing rent
in respect of the tenanted premises in question which
admittedly of the landlord, has never been modified or
renovated ever since it's letting out. In the absence of
materials to show identical features and amenities
available for the tenanted premises, in our view the rent
of adjacent rooms of the same building or rooms of
adjacent building cannot be relied upon by the authorities
as was done in this case. Materials should be available
before the court to have a comparative study of the nature
and the facilities associated with the tenanted premises of
which fair rent is sought to be fixed and the tenanted
room situated adjacent, the rent of which is sought to be
relied upon as basis. In the absence of materials of the
nature available, it is improper for the Court exercising
the authority of fixation of fair rent to act upon as was
done by the authorities below in the case in question. It is
the duty of the landlord to establish those aspects while
relying upon rental arrangements in respect of adjacent
rooms of the same building or rooms of adjacent building.
59.Evidence available on record indicate that the larger
building of which the tenanted premises is a part is
situated in an important area. A prudent man could only
view the ongoing construction of Metro Rail and
Overbridge as ascending steps towards progress and
developments. In view of the above discussion, what
could be gathered was that without appreciating some
relevant pieces of evidence and ignoring certain other
pieces of evidence on record that the Appellate Authority
has arrived at the fair rent for the tenanted premises.
Therefore, on a balancing of the evidence on record, the
fixing of fair rent as Rs.55/- by the Rent Control Court in
R.C.P No.82/2012 is proper and the reduction of the fair
rent to Rs.45/- by the Rent Control Appellate Authority,
Ernakulam in R.C.A No.15/2014 appears to us to be the
outcome of an improper appreciation of the available
evidence. Therefore, we feel it appropriate to set aside
the judgment of the Rent Control Appellate Authority in
R.C.A No.15/2014. In the set of evidence of which
elaborate discussion is already had, it would be
appropriate to enhance the rate of rent from Rs.45/- per
Sq. ft. The learned counsel for the landlord has also
canvassed at length during the course of his argument to
maintain Rs.55/- per Sq.ft. the rent fixed by the Rent
Control Court, Ernakulam. In the light of the lengthy
discussion we had, we also find it appropriate to fix
Rs.55/- as the fair rent of the tenanted premises.
60.In view of the progress likely to accrue to the business in
the locality on account of the construction of the Metro
Rail and the tremendous developments in Kochi City
taking place day to day, a quinquennial enhancement of
rent at the rate of 15% is also reasonable and accordingly
we fix so.
In the result,
1) R.C.R No.316/2014 is dismissed and
R.C.R No.297/2014 is allowed.
2) The impugned judgment dated
14/8/2014 of Rent Control Appellate
Authority in R.C.A No.15/2014 is set
aside.
3) The rate of rent of the tenanted
premises is fixed at Rs.55/- per Sq.ft.
with effect from the date of R.C.P
dated 23/12/2012 thereby the monthly
rent payable is enhanced from
Rs.1500/- to Rs.13000/- with 15%
quinquennial enhancement.
4) The tenant is directed to pay the entire
arrears of rent till date at the monthly
rate fixed herein within one month
from the date of this order and shall
continue to pay the same each month
without failure.
5) It is open to the landlord to resort to
execution proceedings to get the rent at
the re-fixed rate realized in the event of
the tenant's default to pay the same.
K. Surendra Mohan, Judge.
Mary Joseph,Judge.
sl.
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