THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CRP No. 4430 of 2009 AND CRP No. 192 of 2010 Date of Judgment: 10.2.2011 CRP No. 4430 of 2009 Between: Smt. Taramani …Petitioner and Brij Gopal Lakhotiya ..Respondent and CRP No. 192 of 2010 Between: Brij Gopal Lakhotiya …Petitioner and Smt. Taramani ..Respondent THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CRP No. 4430 of 2009 AND CRP No. 192 of 2010 COMMON ORDER: CRP No. 192 of 2010 is preferred by the tenant, whereas CRP No.4430 of 2009 is preferred by the landlady. Both these revisions arise out of an application filed by the landlady for fixation of fair rent being RC No. 411 of 2005 on the file of the II-Addl. Rent Controller, Hyderabad. For the sake of convenience, the parties are hereinafter referred to as ‘landlady’ and ‘tenant’. The landlady alleged that the tenant is in possession of the premises bearing Municipal door No. 14-7-336 consisting of three rooms, situated at Begum Bazar, Hyderabad which was let out to him for residential purpose on a monthly existing rent of Rs.100/- from 1972. The landlady, therefore, claimed that the tenanted premises is in busy commercial locality and carries great rental value in view of the proximity of hospitals, markets, bus stations, railway station etc. She also alleged that even municipal taxes are more than the rents received from the tenant. She, therefore, sought enhancement of rent at the rate of Rs.10,000/- per month. The tenant resisted the petition by claiming that the tenanted premises is not in Begum Bazar, but in Jummerath Bazar near Begum Bazar and the tenanted premises consists of only two rooms which is an old building and as such he claims that it does not have so much of rental value as claimed by the landlady. The landlady examined herself as P.W.1 and Government Valuator as P.W.2 who marked Exs.P1 and P2. On behalf of tenant, he examined himself as R.W.1. On the basis of the evidence adduced by the parties, the learned Rent Controller came to the conclusion that the plinth area of tenanted premises is 516 SFT and applying the prevailing rental value of Rs.7/- per SFT, the learned Rent Controller has fixed the monthly rent at Rs.3612/-. Aggrieved thereby, the tenant preferred an appeal before the lower appellate court, while the landlady opposed the said appeal. The learned counsel for the tenant contended that in the absence of any cross-objections or cross-appeal, the landlady cannot be permitted to seek enhancement of rent over and above the rent fixed by the learned Rent Controller. The lower appellate court, however, considered the merits of the respective claims of the parties and came to the conclusion that though the evidence of P.W.2 and his valuation report is not satisfactory, but keeping in view the decision of the Supreme Court reported in Rattan Arya Vs. State of Tamil Nadu [1], it has taken judicial notice of the phenomenal increasing rents in the twin cities and has fixed the monthly rent at Rs.3,000/-. Since the tenant as well as the landlady is aggrieved by the said fixation of rent, these two revision petitions are preferred by both of them. Heard Mr. Shrad Sanghi, learned for the tenant and Mr. Pramod Kumar Kedia, learned counsel for the landlady who have respectively substantiated their contentions. I have also been taken through Ex.P1, the valuator’s report of P.W.2 as well as the evidence of PWs 1 and 2 and R.W.1. It is apparent from the contentions of either side that there is a controversy with respect to the exact plinth area of tenanted premises and as to whether it comprises of two rooms with veranda or three rooms. There is also a controversy with regard to the location of the tenanted premises, as according to the tenant, it is in a very narrow lane of Jummerath Bazar. The report of the valuator Ex.P1 does not throw much light on either of the controversies, inasmuch as it is admitted that the said report was prepared without notice to the tenant and in any case the measurements of the tenanted premises were not taken in the presence of tenant. The report further shows the calculation of the built up area as 516 SFT, open area as 120 SFT and undivided share in the land was also added and total valuation of the property was arrived at. The learned counsel for the tenant contended that the thickness of the walls has not been excluded from assessing the actual area under use of the tenant and according to him, only the carpet area should govern the calculation of the tenanted area and not the plinth area. The cross-examination of P.W.2 also shows that he has proceeded to calculate the plinth area of one room as 140 SFT and consequently calculated three rooms as having plinth area of 450 SFT and also calculated the toilets as 30 or 40 SFT. I find that when the dispute between the parties is with respect to location as well as plinth area of the tenanted premises, both the said aspects should have primarily been determined. This is also essential in view of the fact that if the rent fixed by the learned Rent Controller exceeds Rs.3,500/- the tenant may lose the protection under Andhra Pradesh Buildings (Lease, Rent and Eviction) Act, 1960 (for short “the Act”). I also find that except the evidence of approved valuator, there is no other evidence produced by the landlady to establish the prevailing rental value in the locality. Both the courts below have lost sight of these aspects while determining the rent for the tenanted premises. According to the tenant, the building is very old and the rental value is not as much as claimed by the landlady, but the tenant also has not led any evidence in support of the said contention. In the result, therefore, the conclusions reached by both the courts below are apparently based on insufficient evidence and are mere personal perceptions of the Presiding Officer regarding the possible rental value. As per the decision of a Division Bench of this Court reported in Suresh Gir Vs. K. Sahadev [2] jurisdiction under Section 4 of the Act has to be with reference to the reasonableness of the rent and such reasonableness can be assessed only on the basis of the evidence adduced. In the circumstances, therefore, I am unable to uphold the impugned judgments of both the courts below, but, at the same time, neither of the parties should be non- suited for the errors committed during the trial of the case and in the interest of advancing substantial justice, it would be just and proper to set aside the impugned judgments of both the courts below and remit RC No. 411 of 2005 to the learned II-Addl. Rent Controller, Hyderabad for re-determination in accordance with law without being influenced by the observations made by this Court in this order. Both the parties shall have liberty to lead oral and documentary evidence as they deem fit and on consideration thereof, the learned Rent Controller shall decide the said RC afresh by a reasoned order. Since the matter is sufficiently old, it is desirable that the learned Rent Controller decides the said RC in any case before the end of April, 2011. The tenant has been depositing half of the enhanced rents pending revision petition as directed by this Court and he shall continue to do so. If the landlady chooses to withdraw, she is entitled to withdraw the rents deposited so far as well as the rents to be deposited, without furnishing any security. However payment of rent as well as its withdrawal shall abide by the result of the application for fixation of fair rent by the learned Rent Controller as ordered above. Both the revision petitions are allowed accordingly. No costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 10.2.2011 KR [1] AIR 1986 SC 1444 [2] 1997 (6) ALT 436 (DB)