THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.Nos.1465 & 1940 of 2007 Date: 18.03.2011 CRP No.1465 of 2007: Grandhi Veerabhadrarao … Petitioner AND Gudala Balakrishna and 6 others …. Respondent CRP No.1940 of 2007: Between: Grandhi Veerabhadrarao … Petitioner AND Badireddi Balayya … Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.Nos.1465 and 1940 of 2007 COMMON ORDER: This common order disposes of both the revisions. The landlord, who is the revision petitioner herein, is common in both the cases. The tenant, however, is not the same nor the demised premises in both the cases is one and the same. It is also true that both the cases were disposed of separately by the trial Court as well as by the appellate Court. However, the counsel for the revision petitioner in both the cases before me is one and the same. The counsel for the tenant/tenants again is one and the same before me. The arguments in both the cases are more or less similar, if not identical. Consequently, both the revisions are disposed of, through this common order. 2. The landlord laid RCC No.84 of 1996 on the file of the Rent Controller-cum-Principal Junior Civil Judge, Rajahmundry initially against the first respondent therein under Section 4 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (‘Rent Control Act’ for short) for the determination of the fair rent. After the demise of the first respondent, respondents 2 to 7 were impleaded as legal representatives of the deceased-first respondent. The schedule premises is a thatched premises bearing door No.6-5-29, Innispet, Rajahmundry. The rent for the premises is at Rs.30/- per month. The landlord sought for determination of the fair rent at Rs.2,000/- per month. The tenant-first respondent and his legal representatives-respondents 2 to 7 resisted the claim. The petitioner- landlord examined four witnesses including himself. The respondents examined the seventh respondent as their only witness. Ex.A.1 and Ex.X.1 to X.53 were marked by the landlord, whereas the tenants exhibited Exs.B.1 to B.3. The learned trial Judge determined fair rent at Rs.650/- per month payable from the date of the petition i.e., 05.08.1996. The trial Judge also ordered for the enhancement of the rent at 15% once in three years. He also directed the tenants to pay the arrears of rent within six months. 3. Aggrieved by the same, the tenants preferred RCA No.2 of 2002 before the appellate Authority-cum-Principal Senior Civil Judge, Rajahmundry. The appellate Court allowed the appeal and set aside the orders in RCC No.84 of 2006. Thus, the landlord won the case partly before the trial Court and the tenants won the case in the appeal. Aggrieved by the judgment and the decree in the appeal, the landlord preferred CRP No.1465 of 2007. 4. The landlord, who laid RCC No.84 of 1996, laid RCC No.85 of 1996 on the file of the same Court against the tenant therein. This premises is also in D.No.6-5-29, Innispet, Rajahmundry. It, however, is a tiled house, whereas the premises in the other cases is a thatched house. The rent for the premises was Rs.170/- per month. The landlord sought for the determination of the fair rent at Rs.2,000/- per month. The sole tenant resisted the claim. The landlord examined the same witnesses as in RCC No.84 of 1996 as PWs.1 to 4 in this case. The sole tenant examined himself as RW.1. Exs.A.1 and X.1 to X.53 were exhibited by the landlord. The tenant marked Exs.B.1 to B.3. The learned Rent Controller allowed the case in part and determined the fair rent at Rs.650/- per month. He passed the same order as in RCC No.84 of 1996, i.e., the date from which the enhanced rent was payable was the date of the petition viz., 05.08.1996 and that the tenant should pay the arrears of rent within six months from the date of order. 5. Aggrieved by the same, the tenant preferred RCA No.9 of 2002 (as given RCA No.2 of 2002 from RCC No.84 of 1996) before the Rent Controller Appellate Authority-cum-Principal Senior Civil Judge, Rajahmundry. Through the impugned order, the appellate Court allowed the appeal and dismissed RCC No.85 of 1996. Aggrieved by the same, the landlord preferred CRP No.1940 of 2007. 6. The premises in both the cases are more or less in the same building. The difference between the two premises is that while the demised premises in CRP No.1465 of 2007 is a thatched house, the premises in CRP No.1940 of 2007 is a tiled house. The landlord is common in both the cases. The door number for both the premises is one and the same. In other words, both the premises are situate in the same locality. The witnesses of the landlord are identical in both the cases. More or less, the documentary evidence is also common. I, therefore, consider it appropriate to dispose of both the cases through the common order. 7. The basic question is as to what should be the fair rent for the two premises. 8. The learned Principal Senior Civil Judge, Rajahmundry took a very peculiar view that when there was an understanding between the landlord and the tenant/tenants relating to the rent, the landlord is not entitled to seek for determination of fair rent. He considered that in reality what the landlord was seeking was for the enhancement of monthly rent over the mutually agreed rent and that the same was not a case of fixation of fair rent. Referring to decision of the Division Bench of this Court in Suresh Gir v. K. Sahadev[1] where the Court held that the Rent Controller has power to determine the fair rent, the appellate Authority considered that when the rent was mutually agreed by the landlord and the tenant, the landlord cannot invoke Section 4 of the Rent Control Act for determination of fair rent. This is the basic reason on which the appellate Authority proceeded in dismissing RCC Nos.84 of 1996 and 85 of 1996. This view of the appellate Authority, however, is not correct. Section 4 of the Rent Control Act itself provides for determination of the fair rent. It is open either for the landlord or for the tenant to approach the Rent Control Appellate Authority for the determination of fair rent. The question of dispute relating to fair rent arises only after the person becomes a tenant. One becomes a tenant only after the landlord and the tenant agreed upon the rent and the tenant took over the tenancy. Consequently, it is clear that the tenant and the landlord would generally be entitled to move the Court for fixation of fair rent. The application of the landlord to determine fair rent cannot be rejected in limini on the ground that the landlord is not entitled to ask for fair rent once the rent was mutually agreed upon. I do not accept the view of the learned Rent Control Appellate Authority that the landlord was seeking for enhancement of the rent. These two cases pray for the determination of fair rent. The view of the learned Rent Control Appellate Authority that the landlord cannot seek for determination of fair rent after determination of the rent by mutual agreement is not the correct view, is not sustainable and is, accordingly, rejected. The merits of the cases, therefore, shall be examined. 9. The two tenants examined themselves as RW.1 in the respective cases. The respondent No.7 in RCC No.84 of 1996 who was examined as RW.1 deposed that the demised premises is very old. He contended that the premises, in fact, was more than 100 years old. RW.1 in RCC No.84 of 1996 (from which CRP No.1465 of 2007 arose) admitted that the first respondent therein took the premises for rent at Rs.20/- per month and the rent presently was Rs.30/- per month. Admittedly, the premises consist of a pial, two rooms, a shaded veranda and another room together with vacant site in the backyard. The premises abuts the main road in the midst of non-residential premises. PW.1 claimed that the premises is situate in 500 square feet site. RW.1 did not deny the claim of the landlord that the premises is 13’ x 45’ in dimensions. Exs.B.1 to B.13 are photographs. Ex.B.1 is the photograph of the demised premises. Exs.B.2 and 3 are the photos of the premises situate nearby. Evidently, the condition of the premises under the occupation of the tenants is not in a good shape as can be seen from Ex.B.1. The premises is said to be more than 100 years old. 10. PWs.2 to 4 are tenants of the landlord in other premises. They indeed have been paying rents higher than what the tenants have been presently paying. The learned counsel for the landlord placing reliance upon the evidence of PWs.2 to 4 claimed that the fair rent deserves to be determined Rs.2,000/- as claimed by the landlord. The learned counsel representing the tenants, on the other hand, submitted that there is no comparison between the demised premises and the premises under the occupation of PWs.2 to 4. Admittedly, the premises tenanted by PWs.2 to 4 are fairly in good shape, whereas the premises under the occupation of the tenants is in a dilapidated condition. 11. Had the premises been a residential premises, fair rent should have been at not more than Rs.100/- per month at Rajahmundry. However, the demised premises is at Innispet, Rajahmundry, which admittedly is a busy locality. Added to it is the fact that the premises is in a non-residential locality. The tenants have been running a cycle repair shop in the premises. Where the tenants have been using the premises for non-residential purpose, the fair rent deserves to be more than what the rent would have been if the premises is in usage for residential purpose. Above all, the premises is located in a non-residential zone. At the same time, the premises does not contain electric connection, water facility and toilets. These are the indicative factors which reduce the rental value of the premises. Thus, the non residential locality and the occupation of the premises for a non-residential and business purpose pit against the premises not possessing electricity, water connection and toilets. Keeping these factors in mind, and also the fact that the premises is a thatched premises for which the landlord has not been attending to any repairs, it would be just and proper to determine fair rent at Rs.500/- per month as against fair rent being Rs.650/- as determined by the learned Rent Controller. The escalation clause deserves to be maintained. 12. The observations of the learned Rent Control Appellate Authority that the landlord was not entitled to move for fixation of fair rent is erroneous and deserves to be rejected. Accordingly, the revision in CRP No.1465 of 2007 deserves to be allowed modifying the fair rent as determined by the trial Court to Rs.500/- per month with enhancement at 15% once in three years. The fair rent of Rs.500/- is, however, determined from the date of the Rent Control Case, i.e., 05.08.1996. The arrears due to the landlord shall be paid by the tenants within six months, failing which the landlord shall be entitled to seek for the eviction of the tenants on the ground of wilful default of payment of rents. The escalation clause also shall become operate from the date of the Rent Control Case. 13. The parameters in CRP No.1940 of 2007 slightly vary from the parameters in CRP No.1465 of 2007. The primary point in this case is that the demised premises is a tiled house, whereas the leased premises in CRP No.1460 of 2007 is a thatched house. 14. The present premises is also located in a commercial locality. The evidence of PWs.2 to 4, who are the tenants of the landlord in other premises, cannot help in determining the fair rent as the premises in their occupation is superior in condition vis-à-vis the demised premises which is evident from Exs.B.1 to B.3 photographs. The premises is, indeed, 300 square yards only in plinth area with tiled roof. Where the evidence of PWs.2 to 4 deserves to be ignored, the evidence of the PW.1 as the landlord and the evidence of tenant as RW.1 established that the premises is used for commercial purposes and that the premises is located in a non-residential locality. At the same time, admittedly the landlord never attended to repairs for the premises while the premises is nearly 100 years old. Taking these factors into consideration, the learned Rent Controller determined fair rent at Rs.650/-. I consider that the fair rent, as determined by the learned Rent Controller at Rs.650/-, deserves to be accepted together with escalation clause. Accordingly, the revision deserves to be allowed restoring the order of the learned Rent Controller in RCC No.85 of 1996 and dismissing RCA No.9 of 2002. 15. For these reasons mentioned, both the revisions are ordered. The orders of the learned Rent Control Appellate Authority in RCA No.2 of 2002 and RCA No.9 of 2002 are set aside. The fair rent for the premises covered by RCC No.84 of 1996 from which RCA No.2 of 2002 and CRP No.1465 of 2007 arose is determined at Rs.500/- per month with effect from 05.08.1996. The fair rent for the premises covered by RCC No.85 of 1996 is determined at Rs.650/- as determined by the learned Rent Controller. The revision in CRP No.1940 of 2007 is accordingly allowed setting aside the order of the learned Rent Control Appellate Authority in RCA No.9 of 2002. The rent for the premises is determined at Rs.650/- per month with effect from 05.08.1996. In both the cases, the rent is enhancable at 15% once in three years commencing from the rent payable in August 1996. The arrears of rent on account of the determination of the fair rent is payable within six months from today, in default of payment of which, the landlord can proceed against the tenant/tenants treating the same as wilful default. 16. Both the civil revision petitions are ordered accordingly. No costs. _______________ K.G. SHANKAR, J Date: 18.03.2011 Isn [1] 2007 (6) ALT 936