IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SIXTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION Nos.1767 of 2008 and 1768 of 2008 CIVIL REVISION PETITION No.1767 of 2008 Between : Poornima Dresses rep. by its Partner Padamshi ….. PETITIONER a n d Yashoda Devi Sharada and another ….. RESPONDENTS CIVIL REVISION PETITION No.1768 of 2008 Between : Poornima Dresses rep. by its Partner Padamshi ….. PETITIONER a n d Yashoda Devi Sharada and another ….. RESPONDENTS ORDER: These two Civil Revision Petitions are directed against the common judgment dated 28-02-2008 in R.A.No.259 of 2006 and R.A.No.272 of 2006 on the file of the Chief Judge, City Small Causes Court, Hyderabad. 2. R.C.No.318 of 2002 before the IV Additional Rent Controller, Hyderabad was filed by the respondents herein against the revision petitioner herein requesting for fixation of fair rent at Rs.24,000/- @ Rs.30/- per sq. foot for the petition schedule premises enhancing the same from Rs.800/- per month. The landladies claimed that the tenant/the revision petitioner entered the premises in 1975 as a tenant for a monthly rent of Rs.350/-, which was progressively enhanced to Rs.800/- per month excluding the electricity charges by the time of the petition. The prevailing rates of rent in the locality, the central location of the premises in the city, the textile business which the tenant does in the premises etc., were claimed to be justifying the request for enhancement of rents. 3. The revision petitioner resisted the petition claiming that the petition is not maintainable against any firm as he was individually carrying on business under the name and style of M/s.Poornima Dresses. The revision petitioner also contended that the present petition is barred under Order 2 Rule 2 of the Code of Civil Procedure as this claim was not included in the petition for eviction in R.C.No.401 of 2001. The revision petitioner also contended that the rent was enhanced to Rs.800/- per month in 1990 and the old premises of 600 sq. feet area aged more than 60 years, which is being repaired by the tenant himself without any supply of water and with electricity connection obtained by the tenant himself cannot fetch the astronomical rent claimed by the landladies for the premises located in a very congested residential and non-residential area. The tenant expressed his readiness to agree for fixation of fair rent below Rs.1,000/- per month. 4. The Rent Controller examined PW-1 and RWs.1 to 5 and marked Exs.A-1 to A-5, Exs.B-1 to B-13 and Exs.X-1 to X-16 during the enquiry and delivered his order on merits on 25-08-2006. 5. The Rent Controller considered the justifiable quantum of fair rent on the rival contentions and evidence and firstly opined that the petition is neither liable for dismissal due to violation of Order 30 of the Code of Civil Procedure nor barred by Order 2 Rule 2 of the Code of Civil Procedure. 6. The Rent Controller also rejected the contention that the fixation of fair rent does not arise after the decision of Suresh Gir v. K. Sahadev[1], observing that the High Court clarified that Sub- Section 1 of Section 4 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) remains and the Rent Control Court has power to determine the fair rent. 7. The Rent Controller also rejected the contention that the Rent Controller has no jurisdiction due to the quantum of rent and relied on Sai Krishna General Stores and others v. B. Sai Anand Prasad and another[2]. The Rent Controller further observed that the evidence did not establish the plinth area of the premises to be 800 Sq. feet and there was also no evidence to show the prevailing market rate of rent to be Rs.30/- to Rs.50/- per sq. foot. Analysing the evidence on record, the Rent Controller came to the conclusion with reference to the rents paid by others in the locality that the premises being more than 50 years old but still located in the heart of the city in a very busy commercial locality is likely to fetch reasonable rent and taking into account the earlier enhancement of rents by about Rs.100/- every three years, the Rent Controller considered it reasonable to enhance the rent by Rs.500/- at intervals of 3 years. The Rent Controller accordingly enhanced the rent to Rs.2,800/- per month from 31-07- 2007, the date of petition, which fair rent is exclusive of electricity consumption charges. 8. The landladies filed R.A.No.259 of 2006 and the tenant filed R.A.No.272 of 2006 before the appellate authority against the order of the Rent Controller and in the appeal, the impugned common judgment was delivered in which it was firstly concluded that a petition for fixation of fair rent under Section 4 (1) of the Act is maintainable. The appellate authority also concluded that the area of the suit premises was probablised to be 612 sq. feet. The appellate authority further reassessed the evidence for fixation of fair rent and noted that the existing rent of Rs.800/- roughly works out to Rs.1.30 paise per sq. foot. The evidence of RWs.1 to 5 was itself noted as showing the area to be a busy commercial area and taking into account that rent of Rs.800/- was fixed in 1990, the appellate authority referred to the evidence about the other leases in the locality, which indicate the rates of rent to be much higher. 9. The appellate authority noted that the premises being more than 60 years old, which has been strengthened by the tenant himself with the necessary repairs and maintenance, the rents paid for the other premises in the area cannot be considered to be comparable. Still the appellate authority considered that a reasonable fixation of rent at Rs.8/- per sq. foot will be just and reasonable on the facts and circumstances of the case. Accordingly, the appellate authority fixed the fair rent at Rs.4,896/- per month. 10. The tenant filed these two revision petitions challenging the said common judgment contending that there was no evidence adduced by the landladies about any amenities provided to the tenant for justifying the enhancement of rent @ Rs.8/- per Sq. foot. 11. Sri Khaja Mohiuddin, learned counsel appearing for the revision petitioner and Sri T.V. Rajeevan, learned counsel appearing for the respondents, are heard. 12. In so far as the conclusions of the Rent Controller and the appellate authority about the maintainability of the petition for fixation of fair rent are concerned, the tenant did not challenge the same in the grounds of revision and therefore, the conclusion that the petition is maintainable in law and the objections to the contrary from the tenant are untenable has to be considered as having become final. 13. The only point that remains for consideration therefore is the justification for quantum of fair rent fixed by the appellate authority. 14. Even the Rent Controller in his order extensively referring to the evidence on record had noted about the rents being paid by the other tenants in the locality, which are obviously much higher than even the fair rent fixed. The Rent Controller also noted about the location of the premises in the heart of the city in a very busy commercial locality and also took notice of the increase of rents since a decade earlier, which has to be taken judicial notice. 15. The appellate authority has analyzed the evidence very carefully, comprehensively and reasonably in this regard and referred to the decision of the Apex Court about the need to take judicial notice of the increase in the rents of property in the urban areas. The rent cannot justifiably stand static from 1990 and the appellate authority observed that the rent under Ex.A-5 lease deed worked out to Rs.66.48 paise per sq. foot, whereas the rent under Ex.A-4 lease deed worked out to Rs.28.40 paise per sq. foot. The prevalence of higher rents in the locality was considered probablized by the same and still the appellate authority considered it appropriate to fix the fair rent only at Rs.8/- per sq. foot which is less than 1/3rd of the rent under Ex.A-4 and less than 1/8th of the rent under Ex.A-5 only because of the building being old and the building being maintained and repaired by the tenant himself. The scheduled premises located in the same locality as the premises covered by Exs.A-4 and A-5 could not have fetched such a low rent in comparison merely because of the age of the building. But still the landladies themselves did not challenge the appellate authority’s order due to which no revision of the fair rent can or need be considered. But the fixation of the fair rent @ Rs.8/- per sq. foot with reference to the positive circumstances probablized by the evidence can never be considered unreasonable or unjust. The restricted revisional jurisdiction cannot justifiably be invoked to reduce the fair rent adjudicated by the appellate authority under the circumstances and both the revisions have to fail. 16. Accordingly, the Civil Revision Petitions are dismissed without costs. _________________________ G. BHAVANI PRASAD, J August 26, 2010 Pn HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION Nos.1767 of 2008 and 1768 of 2008 August 26, 2010 [1] 1997 (6) ALT 436 DB – 1998 (1) ALD 25 [2] 2004 (6) ALT 275