IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 RCRev..No. 268 of 2011() ------------------------ AGAINST THE ORDER DATED 29/03/2011 IN RCA.22/2010 AND RCA.21/2010 of DISTRICT COURT, KASARAGOD RCP.10/2010 of PRINCIPAL MUNSIFF, KASARAGOD .................... REVISION PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------------------------- A.YUSUF, S/O.ABDUL RAHIMAN, TRADER IN K.M.C.II/331, OLD BUS STAND CROSS ROAD, KASARAGOD DISTRICT. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SRI.GEORGE JOSEPH PULIMOOTTIL SRI.N.N.ARUN BECHU SRI.K.DILIP SRI.ROVIN RODRIGUES RESPONDENT(S): PETITIONER: -------------------------- M/S.BUILDERS AND COMMERCIAL TRAVEL AGENCIES, REGISTERED FIRM, REPRESENTED BY ITS MANAGING PARTNER-K.HARIRAYA KAMATH, RESIDING AST VIDYANAGAR, KASARAGOD DISTRICT, PIN-671 123. ADV. SRI.S.VINOD BHAT THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. HARILAL,JJ. .................................................................... R.C.R.NO.268 OF 2011 ................................................................... Dated this the 13th day of December, 2011. JUDGMENT Pius C. Kuriakose, J. Under challenge in this revision filed by the tenant is the judgment of the Rent Control Appellate Authority allowing the appeal preferred by the landlord against an order passed by the Rent Control Court fixing the fair rent of the building in question at Rs.3,000/- per mensem. The landlord in his rent control petition filed under Section 5 has sought for fixation of fair rent of the building at Rs.8,000/- per mensem. According to the landlord, the building was situated in commercially one of the most important spots in Kasaragod municipal town and has several advantages from the point of view of the tenant and his customers. The revision petitioner/tenant however resisted the rent control petition contending that the prevailing contract rent of Rs.1,300/- which has been arrived by giving periodical increases in the original contract rent of Rs.600/- per mensem fixed in the year 1986 was quite reasonable and there was no warrant for making in increase on the existing R.C.R.NO.268 OF 2011 : 2 : contract rent of Rs.1,600/-. The evidence before the rent control court consisted of Exts.A1 to A6, Ext.C1 Commissioner's report and oral evidence of PWs1 and 2. Significantly there was no counter oral evidence from the side of the tenant. The rent control court allowed the rent control petition fixing the fair rent of the building at Rs.3,000/-. Both the landlord and the tenant preferred appeals. Under the impugned judgment, the landlord’s appeal has been allowed and the fair rent has been fixed at Rs.4,000/- per mensem. The tenant’s appeal was dismissed. Now the tenant in this revision has raised various grounds assailing the decision of the appellate authority. 2. We have heard the very extensive submissions of Sri. Sohan, learned counsel for the revision petitioner. Mr. Sohan relied on Exts.A3 and A6 documents, the lease deeds pertaining to neighbouring buildings which interestingly have been relied on by the rent control appellate authority to allow the landlord's appeal. Mr. Sohan pointed out that Ext.A3 as well as Ext.A6 contain clauses providing for escalation of monthly rent by 10% every two years. Mr. R.C.R.NO.268 OF 2011 : 3 : Sohan submitted that the original contract rent agreed upon between the petitioner and the respondent was Rs.600/- per mensem in the year 1986. Though the building is situated in an important area of Kasaragod town, the building is not a new one. It is an old model building. While fixing the fair rent, the contract rent also should be taken into account. In the present case the learned appellate authority and the rent control court have not taken into account the contract rent at all. 3. Sri. Vinod Bhat - learned counsel for the landlord would oppose all the submissions of Sri. Sohan. He submitted that in Exts.A3 and A6 the escalation agreed between the parties is upon the basic contract rent of Rs.4,000/- per mensem. If the basic contract rent which was agreed upon between the parties to this revision had been Rs.3,000/-, there would have been no objection for the landlord to have the rent refixed every two years giving increase of 10%. The situation here is that the existing contract rent is only Rs.1,300/-. The respondent cannot agree to have fair rent of the building fixed on that basis. The R.C.R.NO.268 OF 2011 : 4 : learned counsel submitted that the appellate authority's judgment cannot be faulted as the learned appellate authority has only applied the principles laid down by this Court in Edger Ferus v. Abraham Ittycheria (2004 (1) KLT 767) which has received the fiat of approval from the Supreme Court also. The building is situated in the commercial heart area of Kasaragod town. The building has three shutters and it enjoys the facility of three roads. The Commissioner reported that it has got the facility of two roads. Because of the peculiar nature of the building, the revision petitioner is able to carry on two independent businesses in the building. It is the landlord who should be aggrieved by the judgment of the rent control appellate authority. The fair rent should have been fixed at higher rates than presently fixed. 4. We have given our anxious considerations to the rival submissions addressed at the bar. We have gone through the judgment of the appellate authority as well the order of the rent control court. It is clear that the rent of Rs.4,000/- per mensem presently fixed as fair rent of the R.C.R.NO.268 OF 2011 : 5 : building is in no way excessive. The building is admittedly situated in a commercially very important area of Kasaragod town. The petitioner is conducting leather goods business as well as ready made garments business in two different parts of the building. The fact that this building has three shutters and the facility to conduct two different businesses is not seen disputed. Going by the Commissioner's report, the building was enjoying frontage of two roads. We are sure that the learned appellate authority's decision based on appreciation of entire evidence which consisted of Exts.A3 and A6 and other lease deeds does not suffer from any illegality, irregularity or impropriety. The revision fails and will stand dismissed. PIUS C. KURIAKOSE, JUDGE. K. HARILAL, JUDGE. cl