IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 RCRev..No. 240 of 2010() ------------------------ RCA.5/2005 of RENT CONTROL APPELLATE AUTHROITY , ERNAKULAM RCP.43/2004 of RENT CONTROL COURT EKM .................... REVISION PETITIONER/APPELALNT/RESPONDENT ------------------------------------------------------------ BERNY @ M.X.PAUL,AGED 51 YEARS, S/O.LATE XAVIER,NIRMALA STUDIO,XL/6402,BANERJI ROAD,ERNAKULAM,REP;BY HIS DULY AUTHORISED P/A. HOLDER MR JOMY XAVIER,AGED 50 YEARS,S/O.LATE XAVIER,MECHERIL HOUSE,PACHALAM,COCHIN-682012, KANAYANNOOR TALUK,ERNAKULAM DISTRICT. BY ADV. SRI.G.RAJAGOPAL SRI.P.J.ANTONY RESPONDENT(S)/RESPONDENT/ PETITIONER ------------------------- T.K.FRANCIS,AGED ABOUT 54 YEARS, S/O.THARIATH KATTIKKARAN,XL/6407,BANERJI ROAD, COCHIN-31,NOW RESIDING AT 62/239,69-NIVYA NAGAR, PERANDOOR ROAD,NEAR GALAXY REGENT,KOCHI-682017, KALOOR.P.O. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/09/2010, ALONG WITH RCR NO. 243 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.Nos.240 of 2010 & 243 OF 2010 ------------------------ Dated this the 3rd day of September, 2010 O R D E R Pius C.Kuriakose, J. The tenant is in revision. The RCR No. 240/2010 is directed against the judgment of the Rent Control Appellate Authority fixing the fair rent of the building in question- the first floor portion of a larger building situated very near to the High Court building, abutting Banerji Road on one side and Mathai Manjoram Road on the other side. The total extent of the petition schedule building is 750 sq.ft. The contract rent was fixed at the rate of Rs.45/- per month some 40 years ago and the landlord filed the petition under Section 5 seeking fixation of fair rent at the rate of Rs.6/- per sq.ft. The Rent Control Court after enquiry would fix the fair of the building at Rs.4.5 per sq.ft. The monthly fair rent fixed was Rs.3375/- sq.ft. The Appellate Authority under the impugned judgment has refixed the fair rent at Rs.2655/- per month i.e. at the rate of Rs.3.5 per sq.ft. 3. RCR No.243/2010 is directed against the order of eviction passed by the Rent Control Court under Section 11 (2) (b), which RCR.Nos.240 & 243/2010 2 was confirmed by the Appellate Authority taking the rate at Rs. 4.5 per sq.ft to be the rent payable by the revision petitioner tenant. 4. Even though Sri.G.Rajagopal, learned counsel for the petitioner, addressed strenuous arguments in RCR No.240/2010 and he invited our attention to certain aspects of the evidence available in the case, we are not persuaded to hold that the fair rent fixed by the Rent Control Appellate Authority under the impugned judgment exceeds the fair rent for the building. 5. Having regard to the importance of the locality, capital value of the building and various other aspects referred to by the Division Bench of this Court in Edger Ferus v. Abraham Ittycheria (2004 (1) KLT 767) at paragraph 14 in its judgment, we are of the view that the fair rent fixed by the Appellate Authority is not above the fair rent which is legally payable by the tenant in respect of that building. In short, we do not find any irregularity, illegality or impropriety about the judgment of the Appellate Authority warranting correction by us under the revisional jurisdiction under Section 20 of Act 2 of 1965. RCR No.240/2010 will stand dismissed in limine. RCR.Nos.240 & 243/2010 3 6.Coming to RCR No.243/2010 , it is seen that the order of eviction has been passed by the Rent Control Court and the Appellate Authority treating the fair rent of the building at 4.5 per sq.ft. Now, that the Appellate Authority has refixed the fair rent at the rate of 3.5 per sq.ft. It may not be proper to insist that the tenant should pay arrears at the rate of 4.5 sq.ft. We are however not inclined to set aside the order of eviction passed under Section 11(2)(b). Any order of eviction passed under Section 11 (2)(b) is tentative and is liable to be vacated by the Rent Control Court on the basis of deposits made under Section 11 (2)(c). We dispose of RCR No.243/2010 observing that it will suffice if the arrears of rent fixed by the Appellate Authority under the judgment, which we have confirmed ,is deposited. 7. Of course, we find that order of eviction was passed under Section 11(2)(b) ex parte. But, it is clear from the pleadings and the grounds raised before the Appellate Authority and before this Court that the dispute raised by the tenant was regarding the rate of rent only. That being so, we are inclined to sustain the order, however observing that the rate of rent payable is the rent presently fixed by the Appellate Authority and RCR.Nos.240 & 243/2010 4 approved by us. The revision petitioner is given one month's time from today to make requisite deposit and apply under Section 11 (2)(c) for getting the order of eviction vacated. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk