IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 RFA.No.108 of 2007 (E) -------------------------- OS.325/1998 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANTS/PLAINTIFFS IN O.S.325/98 PRLSUB COURT, KOLLAM ------------------------------------------------------------------------- 1. DR.A.NAZIA, D/O.JAMEELA BEEVI, NEESA MANZIL, ASRAMAM, KOLLAM. 2. A.NASEERA, D/O.JAMEELA BEEVI, DO. DO. BY ADV. SRI.T.R.ASWAS RESPONDENT(S): DEFENDANTS IN O.S.325/98 OF PRL.SUB COURT, KOLLAM --------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARY, TRIVANDRUM. 2. CONTROLLER OF STATIONARY, TRIVANDRUM. 3. SUPERINTENDENT OF STATIONARY, DISTRICT STATIONARY OFFICE, KOLLAM. GOVERNMENT PLEADER SRI.V.T.K.MOHANAN THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 24/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. F. A. No.108 of 2007 ------------------------------------------------ Dated this the 24th day of March, 2010 JUDGMENT Pius C. Kuriakose, J The landlords are in appeal being aggrieved by the judgment of the Subordinate Judge's Court, Kollam ordering that the rent payable for their buildings which was let out to the respondents for the purpose of conducting the depot of the stationery department is to be as fixed by the Public Works Department. The suit was for fixation of fair rent with arrears of rent. 2. Our attention is drawn by Mr.T.R.Aswas, the learned counsel for the appellants to the judgment of the Supreme Court in Edger Ferus v. R. F. A. No.108 of 2007 -2- Abraham Ittycheria (2009(4) KLT 673 SC) by which the judgment of a Division Bench of this Court in 2004(1) KLT 767 was approved by the Supreme Court. The ratio of the judgment of the Supreme Court is that section 5(1) continues to be on the statute book i.e. the Rent Control Court which has power and jurisdiction to fix the fair rent in respect of buildings situated in the areas where the statute operates. 3. Sri.V.T.K.Mohanan, the learned Senior Government Pleader, drawing our attention to the finding of the Sub Court under issue No.1 submitted that before the Sub Court the parties practically agreed that the Sub Court has the jurisdiction to fix the fair rent. According to him, R. F. A. No.108 of 2007 -3- having submitted to the jurisdiction of the Sub Court, it is not now open to the appellant to contend that the Sub Court has no jurisdiction. 4. We do not think that it is open to the parties to confer jurisdiction on a court which lacks in jurisdiction. In this case, it has been laid down by the Supreme Court in very clear terms in approval of the judgment of this Court in 2004(1) KLT 767 that the competent court to fix fair rent in areas where Buildings Lease and Rent Control Act applies is the Rent Control Court. That being the position, the impugned judgment has to be interfered with. We set aside the judgment and decree under appeal and direct the plaint to be returned to the appellant/plaintiff. The appellant/ R. F. A. No.108 of 2007 -4- plaintiff is permitted to make necessary amendments to the plaint or if necessary by filing a separate petition in the required format and re- present the suit along with the petition to Rent Control Court, Kollam. The Rent Control Court will renumber as an RCP and dispose of the RCP in accordance with law as any other application for fixation of fair rent under section 5 of Act 2 of 1965. It will be open to the respondent/ Government to raise all available contentions in the RCP including the contentions urged before us by Sri.V.T.K.Mohan. 5. Refund the full court fee remitted on the appeal memo to Mr.Aswas, the learned counsel for the appellants. It is open to the appellants to R. F. A. No.108 of 2007 -5- make necessary applications before the Sub Court for refund of excess court fee paid on the plaint on the basis of the judgment. 6. This R.F.A is thus, disposed of. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-