THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Civil Revision Petition No.1471 of 2006 Order: Aggrieved by the orders dated 25.01.2006 passed in R.A. No.269 of 2002 by the Additional Chief Judge, City Small Causes Court, Hyderabad, in reversing the order passed by the Principal Rent Controller, Secunderabad, in R.C. No.283 of 2000, dated 29.06.2002, the landlord preferred the present CRP. The Rent Controller had fixed the rent at Rs.3175/- per month and the appellate authority re-fixed the rent at Rs.1,000/- per month for the schedule premises. The parties hereinafter will be referred to as they are arrayed before the Principal Rent Controller for the sake of convenience. As seen from the pleadings of the parties, it is not in dispute that the petitioner is the owner of the premises bearing No.2-1-80, situated at James Street, Secunderabad. The respondent is the tenant on a monthly rent of Rs.500/- exclusive of water and electricity consumption charges. In fact, the premises was let out to the respondent by the predecessors in title of the petitioner and the petitioner purchased the petition schedule premises from his vendor on 05.06.1993. It is also not in dispute that prior to filing of this petition for enhancement of rent, the petitioner had filed R.C. No. 190 of 1999 seeking eviction of the respondent. According to the respondent, the petitioner had filed R.C. Nos.89 of 1993, 48 of 1994, 94 of 1994, 175 of 1995, 263 of 1995 and 190 of 1999 for eviction and all those petitions were dismissed. However, it is not clear on what ground those petitions were filed and whether they were all dismissed on merits or for default. The specific case of the petitioner is that the petition schedule premises is being used for commercial purpose and the area in the occupation of the respondent is 512 sq.ft (16 x 32 feet) and the tenancy is oral. It is also the case of the petitioner that the similar premises located in the very same lane are fetching much more rents than the rent that is being paid by the respondent and therefore the rent being paid by the respondent is unreasonable, unjust and unfair. Similar mulgi in the adjacent area under the name and style of Akruthi Sarees with municipal No.2-1-78, Dharmaraj Galli, Secunderabad, with an area of 8’ x 32’ i.e., 256 sq. ft., is fetching rent of Rs.7,000/- per month. The building under the occupation of the respondent is having all required facilities, therefore the petitioner filed the petition seeking to fix a fair rent at Rs.20/- per sq.ft. The respondent filed a counter admitting the tenancy and rent. It is the case of the respondent that the petitioner herein is in the habit of filing cases to harass him without any reasonable ground and that all the petitions filed by the petitioner were dismissed previously. It is denied that the respondent is occupying nearly 512 sq. ft., and the similar occupation in the locality fetching rent of Rs.7,000/- per month. His specific case is that there are two Mulgies adjoining the petition schedule premises and premises No.2-1-82 belongs to one Salike Nagender Rao and premises No.2-1-83 belongs to Salike Prakash Rao and that one Inderlal is the tenant of these two Mulgies on a monthly rent of Rs.600/- per month. It is also the case of the respondent that the other tenants, who are in occupation of similar accommodation adjoining the petition schedule premises and carrying on wholesale cloth business for more than 25 years, have been paying rents ranging from Rs.300/- to Rs.500/- per month. Another tenant of premises No.2- 1-69 is paying rent at Rs.480/- per month and when the said landlord refused to receive the rents, the said tenant is depositing the rents to the credit of R.C. No.191 of 2000 on the file of the Additional Rent Controller, Secunderabad. The further case of the respondent is that the tenant referred to in premises No.2-1- 78, Tobacco Bazar, Dharamraj Galli, Secunderabad, is a latest tenant inducted into the said premises about 5 or 6 months prior to filing of the present petition and the owner therein, without receiving the actual amount of Rs.7,000/-, is passing the receipts for the said sum, for converting his black money to white for taxation purpose and except the said tenant there is no single tenant who is paying rents in thousands for their portions, who have been occupying the respective premises since last 25 years. It is also the case of the respondent that the petitioner has received the rents for the mulgi at Rs.500/- till the end of December 2002 in advance from the respondent and therefore he cannot seek the enhancement of the rent. It is also the case of the respondent that the rent paid by him is a fair rent and that the petitioner has not affected any repairs or provided any extra amenities to claim enhancement of rent. The specific case of the respondent is that only with a view to take away the premises out of the purview of the Rent Control Act, the petitioner has been seeking the enhancement of rent. The Rent Controller has formulated the following points for consideration. 1. Whether the petitioner is entitled for fixation if fair rent at the rate sought by him i.e., Rs.20/- per sq.ft.? 2. To what relief. On behalf of the petitioner, the petitioner himself was examined as PW.1 and one Sailesh Kumar was examined as PW.2 and Exs.P1 to P3 were marked. On behalf of the respondent, the respondent himself was examined as RW.1 and RWs.2 and 3 were examined and the rental receipts were marked as Exs.X1 and X2 by the Rent Controller. The Rent Controller, having considered the oral and documentary evidence on record, came to the conclusion that the petition schedule premises is leased out for cloth business i.e., for commercial purpose and that in the entire tobacco bazaar and Subhash Bazar there are several shops carrying business in textiles and that the petition schedule premises is in centrally located commercial area. The Rent Controller also came to the conclusion that merely because the petitioner was unsuccessful in seeking eviction of the respondent, he cannot be prevented from claiming fair rent. The Rent Controller, after appreciating the evidence of RWs. 2 and 3, came to the conclusion that their evidence is not helpful to the respondent and that the similar type of accommodation with mezhanine flooring and a premises with lesser area in the same locality is fetching rent of Rs.7000/- per month and that the Court can take judicial notice of the enormous manifold increase of rents in urban areas and that the premises is having all important amenities such as water and electricity etc. The Rent Controller also further held that the market value of the premises is Rs.10,23,840/- and that the petitioner purchased the same for Rs.1,41,000/- and even if the amount is kept in fixed deposits, the petitioner would have get more amount towards interest and accordingly holding that the fair rent would be Rs.3175/- per month, fixed the same as fair rent with effect from July 2002. Aggrieved by the same, the respondent filed an appeal in R.A. No. 269 of 2002. The appellate authority, on re-appreciation of evidence, came to the conclusion that the lease deed under Ex.P3 was executed on 02.08.2000, whereas the petition was filed before the Rent Controller on 27.11.2000 and that there is a gap of only two months 25 days between execution of lease deed and filing of the present petition and that Ex.P3 appears to have executed in anticipation of filing the present petition and to claim rent at Rs.20/- per sq.ft., therefore the rent mentioned under Ex.P3 cannot be taken into consideration. The appellate authority, on re-appreciation of evidence and considering the rents prevailing in the area, came to the conclusion that the reasonable rent would be Rs.1000/- per month. Accordingly, he has allowed the appeal in part. Aggrieved by the same, the petitioner-landlord has filed the present revision. Sri D. Madhava Rao, learned counsel for the petitioner- landlord, submitted that the Rent Controller has rightly taken into consideration the enormous increase in the rents and rightly relied on Ex.P3 lease deed and enhanced the rent. His main submission is that the appellate authority failed to appreciate the evidence in proper perspective. His main submission is that the appellate authority has observed that the lease deed was executed in anticipation of filing of the petition for enhancement of rent by the petitioner, but the appellate authority has ignored the fact that it was not even the plea taken by the tenant before the Rent Controller. His main submission is that the finding of the appellate authority is not based on any evidence or pleadings and therefore such finding is liable to be set aside. Sri Prakash Reddy, learned Senior Counsel for the respondent-tenant, submitted that admittedly the petitioner had filed several petitions seeking eviction of the respondent and since he has failed in his attempts, now he has filed this petition only with a view to see that the premises is taken out of the jurisdiction of the Rent Controller for the purpose of evicting the respondent from the premises. His main submission is that the appellate authority has taken into consideration the circumstances under which the lease deed was executed and has rightly declined to rely on the said lease deed Ex.P3. It is also his submission that a tenant cannot be evicted except as provided under Section 10 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’). It is also his submission that notwithstanding any order or decree in favour of the landlord a tenant can take all the pleas available to him and resist the eviction. It is also his submission that since the rent has been fixed at Rs.3500/- with effect from 28.05.2005 as amended by Act 17 of 2005. The landlord has issued termination notice under Section 106 of the Transfer of Property Act and filed a suit and the said suit was decreed and it was confirmed by the appellate Court on 24.01.2006 and that subsequently the appellate authority by an order dated 25.01.2006 fixed the rent at Rs.1,000/- and in view of the same, again the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act have become applicable to the premises as such the eviction decree obtained by the landlord has become futile decree and the same cannot be executed. The points that arise for consideration are whether the findings of the appellate authority are perverse and liable to be set aside and whether the fixation of rent at Rs.3175/- by the Rent Controller is justified? The Rent Control Act is a beneficial legislation, beneficial to both the landlord and the tenant (See Ganpat Ram Sharma v. Smt. Gayatri Devi (AIR 1987 SC 2016)). It is settled law that the power of High Court in revision under the provisions of the Rent Control Act is wider than the power of revision under CPC. It is also settled law that where the findings are not based on any evidence such findings being perverse can be set aside by the revisional Court. It is not in dispute that the schedule premises is situated at the centrally located commercial area of Secunderabad, having all facilities like shopping centers, theaters and hotels etc. within a short distance as observed by the appellate authority. The evidence of PW.1 also clarifies that the building is having all facilities i.e., electricity and water connection etc. It is not in dispute that the market value of the schedule premises as per Ex.P2 is Rs.10,23,8k40/-. Admittedly, the petitioner has purchased the said building for Rs.1,41,000/- in 1993. So, within a period of 7 or 8 years, the market value of the building increased from Rs.1,41,000/- to Rs.10,23,840/-. Of course, as rightly argued by Sri Prakash Reddy, learned senior counsel for the respondent, the decision relied on by the Rent Controller in M/s. Shaw Wallace and Co.Ltd., v. Govindas Purushothamdas and another (AIR 2001 Supreme Court 1387) pertain to a case which arose under the provisions of the Tamil Nadu Buildings (Lease, Rent and Eviction) Act and as observed by the appellate authority the said decision is not applicable to the cases filed under the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. Admittedly, there was an amendment to Tamil Nadu Buildings (Lease, Rent and Eviction) Act for fixation of fair rent basing on the value of the building and there is no such provision under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. The learned Rent Controller has referred to a decision of the apex Court reported in M. Vishwanath Acharya and others v. State of Maharastra and another (AIR 1998 Supreme Court 602). In that case, while deciding a case which arose, of course, under the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the apex Court observed that price of silver in 1939 was Rs.52/- per Kg and it rose to Rs.6,945/- per Kg., as on 31.12.1996 and such escalation of prices has to be taken into consideration for fixation of fair rent. The apex Court, in the above said decision, observed as follows. “It is not as if the Government does not take remedial measures to try and off set the effects of inflation. In order to provide fair wage to the salaried employees the Government provides for payment of dearness and other allowances from time to time. Surprisingly this principle is lost sight of while providing for increase in the standard rent the increases made even in 1987 by the amendment are not adequate, fair or just and the provisions continue to be arbitrary in todays contest.” Thus, it is clear that enormous increase in the rents from time to time has to be taken into consideration while fixing the fair rent. The location of the premises and the nature of business activity in the locality, the nature of business being carried on by the tenant and the period from which there was no enhancement of rent etc., have to be taken into consideration. I have carefully gone through the judgments of the Courts below. The learned Rent Controller has discussed the evidence on record in correct perspective. Admittedly, according to the respondent he never measured the petition schedule premises and further deposed that he does not know the area under his occupation. It has to be seen that he has been the tenant of the premises since several years. While referring to the evidence of RWs.2 and 3, the learned Rent Controller observed that they did not furnish the area of the premises in their occupation and held that unless RWs.2 and 3 give particulars of the area within their occupation along with other amenities provided to them, the rents paid by them cannot be taken as comparable rents. The appellate authority has also while discussing the evidence of these witnesses observed that the evidence of these witnesses and the documents filed by them under Exs.X1 and X2 do not disclose the measurements of the Mulgies which are in their occupation and therefore it is unsafe to consider the rents paid by them. The appellate authority finally held that it is difficult to fix a fair rent for the schedule premises basing on the evidence of RWs.2 and 3 since the plinth area and amenities provided to the premises in their occupation was not brought on record. Since there is a concurrent finding on this aspect, I am of the considered view that there is no need to disturb the said finding in this revision. Coming to the evidence of PWs.1 and 2, it is clear that the mulgi bearing No.2-1-78 is in the same street intervened by two shops to the petition schedule premises. PW.2 is the tenant of the said premises. He deposed that he entered into a lese agreement with his landlord and executed a registered agreement of lease agreeing to pay rent at Rs.7000/- per month. The plinth area of the said premises is only 391 sq. feet. PW.2 is an income tax assessee. He is showing the rent of Rs.7000/- per month in his income tax returns. The appellate authority also observed that from the evidence of PW.2 it is clear that he entered into a lese agreement with the present landlord agreeing to pay Rs.7000/- per month for an extent of 391 sq. ft.. The appellate authority, observing that Ex.P3 was executed on 02.08.2000 and the petitioner filed the petition before the Rent Controller on 27.11.2000 and that there is a gap of only two months 25 days between the dates of execution of Ex.P3 lease deed and filing of the present petition and that there was no need for PW.2 to enter into a fresh agreement when he continued as tenant since the period of his grand father in the same premises and it appears that Ex.P3 is invented only to file the present petition to claim rent at Rs.20/- per sq.ft. by the petitioner landlord, discarded the said document. The appellate authority seems to have not taken into consideration the basic principles in appreciating the evidence on record. First of all, the appellate authority failed to consider that even the respondent-tenant had not taken such a plea in his counter. A reading of the counter filed by the respondent clearly shows that it is not the case of the respondent that Ex.P3 was brought into existence to enable the petitioner to claim rent at Rs.20/- per sq. ft. When that is not the case of the respondent himself, it is clear that the appellate Court ought not to have invented a plea in support of the case of the respondent. Though the presumption drawn by the appellate authority may be possible, but the Courts have to consider the pleadings of the parties and they cannot set up a plea particularly on factual aspect which plea was not taken by a party. The Court is not expected to step into the shoes of a party and invent a plea by itself ignoring the pleadings of the parties. PW.2 was cross- examined at length. No suggestion was given to PW.2 that Ex.P3 was brought into existence to enable PW.1 to claim enhanced rent. The only suggestion given to PW.2 is that no mulgi is fetching rent more than Rs.1000/- in that area. The appellate authority failed to consider whether the plea taken by the respondent with regard to Ex.P3 is only that the said lease agreement was created for converting the black money of the landlord of the said premises into white. That was the only plea taken by the respondent in his counter. Thus, it is clear that the finding of the appellate authority that Ex.P3 was invented only to enable the landlord to file the present petition to claim rent at Rs.20/- per sq. ft., appears to be a perverse finding. The finding of the appellate Court that there is no reason which prompted PW.2 to enter into a registered lease deed when the tenancy of the premises of PW.2 was being continued from his grand father also appears to be contra to the pleadings of the respondent, since the respondent’s specific plea is that the tenant of PW.2, carrying on business in the name and style of Akruti Sarees, was inducted recently. Thus it is clear that the findings of the appellate authority are perverse. Therefore, the order of the appellate authority has to be set aside. Though the market value of the building cannot be taken into consideration for fixing the fair rent, but admittedly the surrounding circumstances should be taken into consideration. Merely because the petitioner has earlier filed eviction petitions and was unsuccessful is not a ground to reject his claim for enhancement of the rent. It is true that the petitioner has not attended to any repairs or provided further amenities, but admittedly the tenant has not issued any written notice requesting the petitioner to attend any repairs or to provide any further amenities. It is not the case of either party that the premises required any repairs at any time. Admittedly, the basic amenities are available to the premises. According to RW.1 he is paying rent of Rs.500/- per month since 1993. Thus, admittedly, there is no enhancement of rent from 1993 onwards. Admittedly, the present petition has been filed on 27.11.2000. So, for about 17 years, there was no enhancement of rent. Admittedly, the respondent has been doing cloth business in the said premises. Thus, there is no dispute that the premises is being used for commercial purpose and it is also not in dispute that the premises is centrally located in the commercial area of Secunderabad. There are textile shops in the street, in which the schedule premises is situated. Admittedly, the floor of the premises is mezhanine floor. The enormous increase in the rents, prices of commodities, inflation and decrease in money value have to be taken into consideration. Now a days, rent of a business premises is being calculated at square feet rate. Having regard to the evidence of PWs.1 and 2 and Ex.P3 and all other facts and circumstances and taking judicial notice of enormous increase in rents, it appears that the Rent Controller is justified in fixing the rent at Rs.3175/-. In view of the above discussion, I hold that the impugned order is perverse and the same is liable to be set aside confirming the orders passed by the Rent Controller. Accordingly, the revision is allowed setting aside the orders passed by the appellate authority and confirming the orders passed by the Rent Controller. The respondent is directed to vacate the premises by 31st August 2011 subject to the payment of arrears of rents to the petitioner. However, in the circumstances, no costs. ______________________ B. CHANDRA KUMAR, J. Date: 30th April 2011 Nsr