John v. Babu — 1999 DIGILAW 390 (KER)

Judgment :- K.K. Usha, J. Tenant who was respondent in R.C.P. No. 4/94 before the Rent Control Court, Chavakkad is the revision petitioner. The petition was filed by the 1st respondent herein for eviction of the tenant under S.11(2)(b) for the Kerala Buildings (Lease and Rent Control) Act. The landlord contended that he purchased the petition schedule premises in October, 1992 where the tenant was running a Cinema theatre on a rental arrangement with the assignor of the landlord, that after the purchase a fresh lease agreement was entered into for a period of 11 months from 1.3.1993 onwards for a monthly rent of Rs. 2,000/-, that the tenant paid the rent only for the month of March, 1993 and kept the rent in arrears for the subsequent period. Later, the petition was amended adding ground under S.11(3) and 11(4)(iv) of the Act According to the tenant, original lease arrangement was with the 1st respondent and she was conducting a theatre in the premises with the assistance of the 2nd respondent as its Manager. Respondents 3 to 5 are the legal heirs of the deceased 1st respondent. The 1st respondent/ tenant was holding the premises on a lease from the Chakkola Lonappan from January, 1965 onwards for a monthly rent of Rs. 90/-, that she was running the Cinema theatre in the building, that the rent was enhanced to Rs. 120/- p.m. from January, 1970 onwards, that the rent up to October, 1992 was paid regularly to the then landlord, that rent is in arrear only from November, 1993 at the rate of Rs. 120/- p.m. and that there was no lease arrangement with the petitioner/ landlord agreeing to pay rent at the rate of Rs. 2,000/-p.m. The tenant also denied the claim of the landlord for eviction of the building on the ground of bona fide need under S.11(3) and 11(4)(iv). 2. The Rent Control Court allowed the petition under S.11 (2)(b), but rejected the claim under S.11(3) and 11(4)(iv). The landlord as well as the tenant filed appeals before the Rent Control Appellate Authority, Thrissur as R.C.A. No. 6798 and R.C. A. No. 136/97 respectively. The Rent Control Appellate Authority dismissed both the appeals upholding the order of the Rent Control Court. Aggrieved by the above, the tenant has come up in revision. 3. The landlord as well as the tenant filed appeals before the Rent Control Appellate Authority, Thrissur as R.C.A. No. 6798 and R.C. A. No. 136/97 respectively. The Rent Control Appellate Authority dismissed both the appeals upholding the order of the Rent Control Court. Aggrieved by the above, the tenant has come up in revision. 3. It is contended by the revision petitioner that apart from the interested testimony of the landlord, there is absolutely no evidence to show that the tenant had agreed to pay rent at the rate of Rs. 2,000/- p.m. Both the Courts have erred in assuming without basis that the rent might have been fixed at Rs. 2,000/-. According to the revision petitioner, the appellate authority has misconstrued the scope of the decision of this Court in Issac Ninon v. State of Kerala, 1995 (2) KLT 848, and it proceeded to fix "the rent due" without jurisdiction. The revision petitioner has filed C.M.P. No. 3415/99 praying this Court to receive certified true extracts of the entries relating to the pass book of the petitioner in the ledger of the South Indian Bank. Copy of the above document is produced along with the petition. 4. We heard learned counsel for the petitioner and also the learned counsel for the respondents, who had entered caveat. 5. The evidence in this case consists of oral evidence of the petitioner as PW1 and that of 2nd respondent before the Rent Control Court as rw1. The petitioner had produced Ext. Al to Ext. All and the respondents Exts. B1 and B2. On the basis of the evidence the Rent Control Court found that there was landlord-tenant relationship between the petitioner and the respondents. No document was produced by the petitioner in support of his oral testimony thar monthly rent was enhanced to Rs. 2,000/- as per oral entrustment. The tenant relied on Ext. B1 and pass book in respect of the account with South Indian Bank, Kunnamkulam Branch to support their contention that the rent paid was only at the rate of Rs. 120/-. This evidence was not accepted by the Rent Control Court for the reason that it related the period to 1966 and 1968. The tenant relied on Ext. B1 and pass book in respect of the account with South Indian Bank, Kunnamkulam Branch to support their contention that the rent paid was only at the rate of Rs. 120/-. This evidence was not accepted by the Rent Control Court for the reason that it related the period to 1966 and 1968. It is contended before us by the learned counsel for the revision petitioner that the very same ledger which was produced before the Rent Control Court would show that rent at the same rate had been paid even for subsequent period. It is in support of the above contentions the petitioner sought to produce certain document before this Court. We do not propose to go into the correctness of the above contention or on the merit of the document at this stage. Ultimately the Rent Control Court came to the conclusion that "the rent would have been subsequently enhanced" from 1.1.1970 to Rs. 2.000/- as contended by PW. 1. It is on this basis the learned Rent Control Court accepted the contention of the petitioner that the rent due was Rs. 2,000/- p.m. We find it very difficult to approve the above findings in the nature of the evidence in this case. 6. The Rent Control Appellate Court has approached the issue from a different angle. It has taken the view that in spite of this Court declaring the provisions containing under Ss.5,6 and 8 of the Kerala Buildings (Lease and Rent Control) Act, 1965 as unconstitutional in the decision 1995 (2) KLT 848, the Court "can also achieve the object of controlling the rent of the buildings in the State of Kerala". Referring to S.11(2)(b) the learned Rent Control Appellate Authority proceeds to state "if the expression "the rent due' is not construed in such an effective, dynamic and purpose serving manner, rent control authorities would become powerless and will be forced to enforce unconscionable contract between landlords and tenants." The appellate authority further proceeds to state that "I feel that the Rent Control Court in the absence of (and in spite of) contractual stipulations can determine the reasonable rent payable. The expression "the rent due' has to be understood imaginatively as the "reasonable consideration" payable by a tenant to the landlord for use, occupation and enjoyment of the premises belonging to the landlord. The expression "the rent due' has to be understood imaginatively as the "reasonable consideration" payable by a tenant to the landlord for use, occupation and enjoyment of the premises belonging to the landlord. Tyranny of contract cannot be permitted to prevail." Thereafter the Rent Control Appellate Authority proceeds to consider the evidence in this case from paragraphs 19 to 23. During such discussion in one place the appellate authority observes that "it is reasonable that a cinema theatre in a Municipality, normally, reasonably and naturally, would fetch rent exceeding Rs. 120/- per mensem. It is not irrational to make such assumption. It will be puerile not to make such assumption. Ordinary prudence dictates that reasonable presumption can be drawn". It is relevant to note that Ext. B1 and Ext. B2 produced by the tenant would show that the rent paid in respect of the very same cinema theatre during the years 1966 and 1968 was at the rate of Rs. 120/- p.m. The landlord also has no case that the rent was at the rate of Rs. 2,000/- p.m. before 1.3.1993. His case is that before the period of his assignment the original monthly rent was at the rate of Rs. 90/- and it was subsequently enhanced to Rs.120/-. After the assignment in favour of the present landlord there was an oral entrustment and fresh lease for a period of 11 months with effect from 1.3.1993 on a monthly rent of Rs. 2,000/-. It is also relevant to note that the present landlord acquired the property under Ext. Al dated 21.10.1992. Therefore, it is clear that even after his becoming the landlord up to 1.3.1993 there was no enhancement from the monthly rent of Rs. 120/-. This being the admitted fact, it is very difficult to appropriate the presumption drawn by the learned Rent Control Appellate Authority as mentioned above. 7. As mentioned earlier, the Rent Control Court accepted the oral evidence of the petitioner/ landlord and entered a finding that the rent agreed was at the rate of Rs. 2,000/- p.m.. But, according to the Rent Control Appellate Authority, "the process of reasoning adopted by the Court below is not impeccable or unassailable". 7. As mentioned earlier, the Rent Control Court accepted the oral evidence of the petitioner/ landlord and entered a finding that the rent agreed was at the rate of Rs. 2,000/- p.m.. But, according to the Rent Control Appellate Authority, "the process of reasoning adopted by the Court below is not impeccable or unassailable". But the lower court "stumbled and reached the ends of justice." The Rent Control Appellate Authority proceeds to make very many assumption like "it would, in the very nature of things, be unreasonable to assume that the landlord who purchased the property under Ext. Al and the tenant did not have any discussions even after Ext. P2 about the rent which would be payable. Normal probabilities therefore, unmistakably point to the fact that there must have been some discussions between the landlord and the tenant. Thereafter the appellate authority criticises the stand taken by the landlord. It observes that "the landlord's version that he did not previously is not very convincing, though not impossible. His version that even after Ext. A2 he did not ascertain from the>previous landlord the rate of rent payable is also unconvincing, though not impossible". In a later part of the very same paragraph it is observed "thus in any view of the matter, I am satisfied that the final conclusion of the Court below that the rent payable at the rate of Rs. 2,000/- per mensum is consistent with principles of justice, equity and good conscience. On the available evidence the Court below cannot-be found fault with for having believed the evidence of PW1 to come to a conclusion that the rate of rent payable is Rs. 2.000/- per mensem and not Rs. 120/- per mensem as belatedly contended by the tenant. Taking all the relevant circumstances into account, I am satisfied that the conclusion of the Court below about the question of rent payable is eminently just and reasonable and does not warrant interference. Sitting as an appellate Court I must also note that the Rent Control Court had the evidence advantage of seeing the witnesses PW1 and Rw.1 speaking about their theory of existence or otherwise of an oral agreement. Sitting as an appellate Court I must also note that the Rent Control Court had the evidence advantage of seeing the witnesses PW1 and Rw.1 speaking about their theory of existence or otherwise of an oral agreement. I am not persuaded to interfere with the conclusion of the Court below which, according to me, eminently caters to the ends of justice notwithstanding the fact that the reasons had not been discussed exhaustively in the impugned order." 8. We are constrained to observe that the learned Rent Control Appellate Authority has totally misdirected itself in deciding R.C.A. No. 136/97. S.11(2)(b) provides that the tenant can be evicted on an application made by the landlord for a direction in that behalf. If the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with the landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him. Since it is the landlord who is approaching the Rent Control Court with the complaint that the tenant has kept in arrears rent due, the burden is on him to prove that the tenant has defaulted in paying the rent. In order to discharge the above burden the larndlord has to prove the rent due by the tenant If the tenant refuted the rate of rent and the allegation that he has defaulted rent and if the landlord fails to prove that the tennat has not paid or tendered the rent at the rate claimed by the landlord, the application of the landlord is only to be dismissed. The Court cannot take upon the duty of deciding "reasonable rate of rent payable in respect of the premises" and substitute the same for the rent due by the tenant as mentioned in S.11(2)(b). No such jurisdiction is given to the Rent Control Court or to the Rent Control Appellate Authority under S.11(2)(b). The Court cannot take upon the duty of deciding "reasonable rate of rent payable in respect of the premises" and substitute the same for the rent due by the tenant as mentioned in S.11(2)(b). No such jurisdiction is given to the Rent Control Court or to the Rent Control Appellate Authority under S.11(2)(b). The landlord cannot come under S.11(2)(b) with a request to the Court to fix the fair rent or reasonable rent for his rented premises and for a direction to the tenant to pay rent at such rate. Reference to Ss.7(2),11(4) (iv),11(6) and 30(2) and R.11(8) made by the Rent Control Appellate Authority is totally unwarranted, S.7 provides that where the amount of the taxes and cesses payable by the landlord in respect of any building to a local authority has increased after fixation of the fair rent (emphasis supplied) such increase is recoverable by the landlord from the tenant, provided that no such increase exceeding five percent of the original fair rent shall be so recovered. Sub-s.(2) provides that any dispute between the landlord and the tenant in regard to any increase claimed under sub-s.(1), shall be decided by the Rent Control Court (emphasis supplied). A mere reading of the Section would make it clear that jurisdiction is given under sub-s.(2) to Rent Control Court to decide the dispute between the parties in regard to increase in rent unlike S.11(2)(b). Third proviso to S.11(4)(iv) provides that when the tenant occupies reconstructed building he will have the liability to pay its fair rent. S.11(6) provides that the tenant will be liable to pay enhanced rent when the building has been renovated under sub-s.(5) so as to assure the landlord a rent equal to the rent for a similar building with similar amenities in the locality. 9. Under the above provisions, if a dispute regarding the enhancement arises, the Rent Control Court has to decide the quantum of enhancement or the fair rent, as the case may be. S.30 deals with an entirely different situation. 9. Under the above provisions, if a dispute regarding the enhancement arises, the Rent Control Court has to decide the quantum of enhancement or the fair rent, as the case may be. S.30 deals with an entirely different situation. It provides that if during the course of a prosecution under the Act, it is disclosed that a landlord was receiving the rent in excess of the rent that may be fixed under S.5, the Court before which the complaint was filed shall, after the close of the proceedings before it, forward to the Rent Control Court the relevant extracts of the proceeding for the purpose of fixing the fair rent The fair rent thus fixed shall be deemed to be fair rent as determined under S.5. R.11(8) only provides that decision of the Accommodation Controller, Rent Control Court or the Appellate Authority shall be given in accordance with justice and good conscience. We are at a loss to understand as to how these provisions would help to invest jurisdiction to the Rent Control Court or the Appellate Court to fix a fair rent or a reasonable rent while considering an application under S.11(2)(b). We are of the view that the learned Appellate Authority has mis-directed itself in utilising 12 paragraphs of its judgment for the totally unwarranted exercise of fixing 'reasonable rent' of the petition schedule premises in accordance with "the principles of justice, equity and good conscience". We have no hesitation to set aside the judgment of the Rent Control Appellate Authority in R.C.A. No. 136 of 1997. 10. We are of the view that the order passed by the Rent Control Court is also unsustainable in law, as it has entered a finding that the rate of rent for the petition schedule premises was Rs. 2,000/- per month on the basis of certain assumptions. The Rent Control Court has observed as follows: "From all these aspects, I came to the conclusion that the rent would have been subsequently enhanced from 1.1.1970 to Rs. 2,000/-as contended by PW1." From the above it is clear that the finding regarding the rate of rent has been entered by the Rent Control Court not on the basis of any evidence, but on mere conjecture. We, therefore, set aside the order of the Rent Control Court also. 11. The case is remanded back to the Rent Control Court for fresh trial. We, therefore, set aside the order of the Rent Control Court also. 11. The case is remanded back to the Rent Control Court for fresh trial. The Rent Control Court will give opportunity to both sides to adduce evidence. There will be a further direction to dispose of the matter within a period of six months. The parties shall appear before the Rent Control (Munsiff Court), Chavakkad on 6.9.1999. 12. Registry is directed to forward a copy of the judgment to the Rent Control Appellate Authority, Thrissur.