w w w . L a w y e r S e r v i c e s . i n



Thomas M. Joshua v/s Church of South India Trust Association, A Company Incorporated under The Indian Companies Act, 1913, having its Registered Office, Royapettah, Represented by Its Power of Attorney holder, Rev. Dr. Sabu K. Cherian & Another

    RCRev. No. 347 of 2018

    Decided On, 10 January 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K. HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN

    For the Petitioner: Praseena Elizabeth Joseph, Abhijith George, L. Harsha, Prafin Joseph Zacharia, Advocates. For the Respondents: Abraham George Jacob, Advocate.



Judgment Text

K. Harilal, J.

1. The revision petitioner is the tenant, who is confronting with an order of eviction passed under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (herein after referred to as 'the Act'), in the appeal preferred by the respondents/landlords. (The parties are referred to as in the rent control petition).

2. According to the averments in RCP No.40/2015 of the Rent Control Court, Kottayam, earlier, the petitioners had filed R.C.P No.4/2013, before the Rent Control Court, Kottayam seeking an order fixing fair rent of the petition schedule building, and the Rent Control Court fixed the fair rent on 31.07.2014 @ Rs.4,450/- per month and also ordered that the same shall be enhanced by 10% every three years and the first of such enhancement will be in August 2017. So, the respondent was liable to pay the fair rent at the rate of Rs.4,450/- per month from the date of filing of RCP No.4/2013 ie; on 12.02.2013. But, the respondent committed default in payment of rent and an amount of Rs.70,978/- was outstanding from the respondent, as arrears of rent, as on July 2015. On 15.07.2015, the petitioners issued a registered notice to the respondent intimating de

Please Login To View The Full Judgment!

fault and demanding payment of arrears of rent @ Rs.4,450/- from 12.02.2013. On receipt of the said notice, the respondent paid Rs.12,277/- and Rs.4,450/- each on 31.08.2015, 12.09.2015 and 14.10.2015. So, the amount due as arrears on the date of petition is Rs.58,251/-. Since the respondent failed to pay the arrears of rent, as claimed by the petitioners, he is to be directed to surrender vacant possession of the petition schedule room to the petitioner under Section 112(b) of the Act.

3. The respondent filed objection contending that the petition is not maintainable and no amount is due from him to the petitioners, as arrears of rent. The respondent further contended that, by order dated 31.07.2014 in RCP No.4/2013, the Rent Controller fixed the fair rent of the petition schedule room at the rate of Rs.4,450/- per month from 31.07.2014; the date on which the Rent Control Court passed the judgment, fixing the fair rent. He was not liable to pay the fair rent from the date of institution of the rent control petition. So, no amount was due from him to the petitioners as arrears of rent.

4. Both parties adduced evidence and after considering the evidence on record, the Rent Control Court found that the respondent is liable to pay enhanced fair rent @ Rs.4,450/- from 31.07.2014 and not from the date of filing of the rent control petition. So, no amount was due from the respondent to the petitioners as arrears of rent. On the aforesaid findings, the Rent Control Court dismissed the rent control petition.

5. Feeling aggrieved, the petitioners preferred R.C.A No.9/2017, before the Rent Control Appellate Authority, Kottayam. The Appellate Authority reversed the findings of the Rent Control Court and passed an order of eviction, under Section 11(2)(b) of the Act, on a finding that the respondent was liable to pay rent @ Rs.4,450/- from 12.02.2013, the date of institution of the rent control petition. But, the respondent had paid rent from 31.07.2014, the date of order of the Rent Control Court only and thereby the respondent defaulted payment of fair rent, as fixed by the Rent Control Court in RCP No.4/2013. The legality and proprietary of the divergent findings, whereby the Rent Control Court dismissed the RCP and the Appellate Authority allowed the RCA, granting an order of eviction under Section 11(2)(b) of the Act, are assailed in this revision petition.

6. Heard the learned counsel for the revision petitioner/respondent and the learned counsel for the respondents/ petitioners.

7. Smt. Praseena Elizabeth Joseph, the learned counsel for the revision petitioner/tenant advanced arguments, assailing the findings of the Appellate Authority that the Rent Control Court in RCP No.4/2013 fixed the fair rent of the petition schedule shop room @ Rs.4,450/- from the date of filing of the rent control petition. The learned counsel for the respondent drew our attention to paragraph No. '15' of the order passed in RCP No.4/2013 and contended that the rent of the plaint schedule shop room was fixed on the basis of the rent prevailing after the date of filing of the rent control petition and not before the date of filing of the rent control petition. Therefore, according to the learned counsel for the revision petitioner/tenant, the instant case would fall under the exception provided in Kadar Pillai K.S. v. M/s. Goven Travels, Ekm, [2014 (4) KHC 535]. The learned counsel drew our attention to paragraph '4' of the decision in Kader Pillai (supra) and highlighted the point that in the matter relating to fair rent, the general rule is that the fair rent has to be determined from the date of filing of the rent control petition with an exception. There can be a departure from the said general rule to the date of order, where material placed by the landlord to fix the fair rent is based on the rent prevailing subsequent to the filing of the petition. In RCP No. 4/2013, the Rent Control Court has fixed the fair rent @ Rs.4,450/- on the basis of the rent shown in Ext.A8, as on the date of the order. According to the learned counsel for the revision petitioner/tenant, as per Ext.A8, the the rent prevailing on 12.02.2013, the date of filing of the petition was only Rs.4,050/-. The Rent Control Court rightly found that the rent prevailing on 12.02.2013 was Rs.4,050/- only. But the Rent Control Appellate Authority has not taken that rate and instead of it, the Appellate Authority has taken Rs.4,450/- as the rent prevailing in Ext.A8, for the period from 01.12.2012 to 30.11.2013. The court below has miserably failed to construe and apply Kader Pillai (supra) in its correct perspective, to the instant case.

8. Per contra, Sri.Abraham George Jacob the learned counsel for the petitioners/ landlord advanced arguments to justify the findings of the Appellate Authority. According to the learned counsel for the petitioners, in Kader Pillai (supra), this Court has laid down the general rule and there cannot be any deviation from the general rule, even if the Rent Control Court has decided otherwise. The general rule will have to be applied, notwithstanding the currency of the materials placed by the landlord and there cannot be any exception.

9. In view of the arguments at the bar, the question to be considered is (1) What is the basis on which the date of commencement of the fair rent be fixed, when determining the fair rent u/s 5(1) of the Act.

10. At the outset, we must have a look at the law laid down by this Court as regards the date of commencement of fair rent in Kader Pillai (supra), which is extracted below:-

“.... We are of the view that rights and liabilities to the parties to the lis have to be determined with reference to the date of filing of the petition. However, in the matter relating to the fair rent fixation there can be a departure from such rule on finding that reliance placed by the Landlord to fix the fair rent is based on a material that has arisen subsequent to the filing of petition. The fair rent is fixed based on the prevailing rate of rent in the locality for the similar building. The components of the fair rent depend upon the market criteria related to fixation of fair rent. These components are liable for changes and fluctuations. The Court has to advert to the market criteria that might have become prevalent in the locality and the date of commencement of such criteria by marshaling the factors that require to establish fair rent fixation. If those conditions exist as on the date of application for fixation of fair rent, necessarily, the court has to fix the fair rent as on the date of application. In this case, documents produced by the landlord clearly indicate that the rent at the rate of Rs.30/- per sq.ft was prevailing before the application for fair rent. In such circumstances, we are of the view that the fair rent that should have been fixed, is from the date of application. Accordingly, we affirm the decision of the Rent Control Court and vacate the order passed by the Appellate Authority, restricting fair rent from the date of order”.

11. The proposition, that could be culled out from the aforesaid paragraph is that the rights and liabilities of the parties to the lis are to be determined from the date of institution of the rent control petition and it is the general rule. So the fair rent is to be fixed from the date of institution of the rent control petition. But, in exceptional cases, where reliance is placed by the landlord, for fixation of fair rent, on a material, which had arisen subsequent to the filing of the rent control petition, the fair rent has to be fixed from the date of the order.

12. Thus perceived, we further hold that where the Rent Control Court determines the fair rent, on the basis of the material evidence, which would show the prevailing rent of the similar buildings, at the time of passing of the order, the fair rent must be fixed from the date of the order and not from the date of institution of the rent control petition. On the other hand, if the determination of fair rent is on the basis of the material, which would show the prevailing rent at the time of institution of the rent control petition, the fair rent is liable to be fixed and put it in operation from the date of institution of the rent control petition.

13. Let us examine the application of the said proposition to the instant case. Whether there is any illegality or impropriety in the above findings of the Appellate Authority that the fair rent fixed in RCP No.4/2013 was from the date of institution of the rent control petition and not from the date of the order. Going by paragraph No.'15' of the order passed in RCP No.4/2013, we find that the Rent Control Court has relied on Ext.A8, which is an agreement of lease executed between the petitioners and the respondent pertaining to another room on the same floor of the building. The rent fixed for that room is extracted below:

From 01.12.2012 to 30.11.2013 is Rs.4050/- From 01.12.2013 to 30.11.2014 is Rs.4450/- From 01.12.2014 to 30.11.2015 is Rs.4900/-

14. The rent control petition was filed on 12.02.2013. In Ext.A8, different rates of rent were shown for different periods. The rate of rent from 01.12.2012 to 30.11.2013 is Rs.4,050/-, from 01.12.2013 to 30.11.2014 is Rs.4,450/- and from 01.12.2014 to 30.11.2015 is Rs.4,900/-. The Rent Control Court has fixed fair rent in RCP No.4/2013 on the basis of the rent prevailing for the period from 01.12.2013 to 30.11.2014 ie; Rs.4,450/-, where the rent control petition was instituted on 12.02.2013. So, it cannot be said that the Rent Control Court found that the respondent was liable to pay fair rent from 2013 onwards, at the rate prevailing in 2014. In other words, the Rent Control Court has placed reliance on the prevailing rent at the time of determination of fair rent. If that be so, the instant case would squarely fall under the exception in Kader Pillai's case(supra).

15. In the above view, we find that the Rent Control Court in RCP No.4/2013 deliberately fixed the fair rent from the date of the order only. Otherwise the Rent Control Court would have fixed rent @ Rs.4,050/-, the rent, which was prevailing at the time of institution of the rent control petition. If the rent was fixed from the date of the order, admittedly, there is no arrears of rent. If there is no arrears of rent, the petitioners were not entitled to get an order of eviction under Section 11(2)(b) of the Act. But the Appellate Authority has miserably failed to consture the date of commencement of the fair rent, in the light Kader Pillai's case (supra) in its correct perspective. In the above analysis, we set aside the impugned judgment passed by the Appellate Authority and the order passed by the Rent Control Court, dismissing the rent control petition will stand restored to the files.

The revision petition is allowed accordingly
OR

Already A Member?

Also