Avinash v. Saraf, S/o. V. G. Saraf VS C. D. Jose, S/o. C. T. Devassia
2021-10-21
ANIL K.NARENDRAN, P.G.AJITHKUMAR
body2021
DigiLaw.ai
ORDER : Ajithkumar, J. This Rent Control Revision is filed by the 1st respondent in R.C.P.No.201/2005 on the files of the Rent Control Court, Ernakulam. He is the tenant in the building bearing No.39/2052, the ground floor portion of the building by name Aiswarya Building, M.G.Road at Ernakulam. The 1st respondent herein is the landlord. 2. The revision petitioner has filed the R.C.P. under Section 5 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for brevity ‘the Act’). The Rent Control Court disposed of the R.C.P. by order dated 31.01.2011 fixing fair rent at the rate of Rs.6,650/-per month and also providing for enhancement of the rent at 10% in every two years. An appeal was preferred by the 1st respondent challenging the order of the Rent Control Court as R.C.A.No.38/2011. That appeal was allowed as per judgment dated 30.08.2013 of the Rent Control Appellate Authority, Ernakulam and the fair rent was refixed as Rs.11,400/-per month with a provision for enhancement at the rate of 15% per annum in every two years. 3. The revision petitioner assails the said judgment to be wrong insofar as the Appellate Authority placed reliance on inadmissible evidence and at the same time failed to take into account relevant evidence available on record. It is also contended that the dilapidation of the building and lack of its direct access to the M.G.Road were ignored by the Appellate Authority while enhancing the rate of rent by modifying the order of the Rent Control Court. 4. Heard the learned counsel Sri.S.Shyam, appearing for the revision petitioner and Sri.P.Benjamin Paul appearing for the 1st respondent. 5. In Edgar Ferus v. Abraham Itticheriya [ 2004 (1) KLT 767 ], this Court laid down the principles governing the fixation of fair rent and the Apex Court affirmed the said decision in Edgar Ferus v. Abraham Itticheriya [2009 (1) KLT 673 (SC)]. The Rent Control Court, following the guidelines, fixed the fair rent at the rate of Rs.7/-per sq.ft. However, the Appellate Authority did not agree with the finding of the Rent Control Court for the reason, essentially, that it would not stand on the face of the assertion made by the landlord/PW1 during cross-examination that the monthly rent being paid by the tenant occupying 800 sq.ft. area in the 2nd floor of the same building was Rs.12,100/-, which is Rs.15 per sq.ft.
area in the 2nd floor of the same building was Rs.12,100/-, which is Rs.15 per sq.ft. The learned counsel for the revision petitioner submitted that the said evidence is unsupported by any pleading and the Appellate Authority ought not to have acted upon that sole testimony to set at naught the well reasoned finding of the Rent Control Court. 6. Section 5(1) of the Act reads thus: "5. Determination of Fair Rent.-(1) The Rent Control Court shall, on application of the tenant or landlord of a building, fix the fair rent for such building after holding such enquiry as it thinks fit." 7. Section 5 makes it clear that once the Rent Control Court is called upon either by the tenant or the landlord to decide the fair rent, it is the responsibility of the court, after holding an enquiry as it thinks fit in the facts and circumstances of the case, to fix the fair rent. In order to arrive at a decision regarding the fair rent, the powers of the court are not circumscribed by the pleadings. The court can take into consideration the evidence let in by the parties and relevant to the issue while fixing the fair rent, following the guidelines laid down in Edgar Ferus (supra). 8. In the instant case, the Rent Control Court and the Appellate Authority acted upon the oral testimony of PW1, the landlord, for deciding as to what shall be the fair rent. He deposed during cross-examination that monthly rent being paid by the tenant occupying 800 sq.ft. area in the 2nd floor of the same building was Rs.12,100/-. That evidence remained unchallenged. The learned counsel appearing for the Revision Petitioner argued that in the absence of any other evidence to support, either oral or documentary, the sole testimony of PW1, which came out only during cross-examination, would not have been relied upon by the Appellate Authority to reach its finding. 9. We shall now consider how far this Court under its revisional jurisdiction can entertain the said contention. Section 20 of the Act deals with revision.
9. We shall now consider how far this Court under its revisional jurisdiction can entertain the said contention. Section 20 of the Act deals with revision. As per sub-section (1) of Section 20, in cases, where the Appellate Authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under subsection (1) shall be in its discretion. 10. In Rukmini Amma Saradamma v. Kallyani Sulochana [ (1993) 1 SCC 499 ], the scope of revisional powers of the High Court under Section 20 of the Act came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ‘propriety’ it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 11.
Even by the presence of the word ‘propriety’ it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 11. In T. Sivasubramaniam v. Kasinath Pujari [ (1999) 7 SCC 275 ] the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. 12. In Ubaiba v. Damodaran [ (1999) 5 SCC 645 ] the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Act, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such a relationship existed would be a jurisdictional fact. Relying on the decision in Rukmini Amma Saradamma it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re-appreciate the evidence and substitute its own finding upsetting the finding arrived at by the Appellate Authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional court will not be entitled to re-appreciate the evidence and substitute its own conclusion in place of the conclusion of the Appellate Authority.
Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional court will not be entitled to re-appreciate the evidence and substitute its own conclusion in place of the conclusion of the Appellate Authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by re-appreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 13. In Hindustan Petroleum Corporation Limited v. Dilbahar Singh [ (2014) 9 SCC 78 ] a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in Rukmini Amma Saradamma the Apex Court reiterated that even the wider language of Section 20 of the Act does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in Rukmini Amma Saradamma that the word ‘propriety’ does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 14. In Thankamony Amma v. Omana Amma [ AIR 2019 SC 3803 : 2019 (4) KHC 412 ] considering the matter in the backdrop of law laid down in Rukmini Amma Saradamma, Ubaiba and Dilbahar Singh, the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be perverse in any way. The High Court could not have re-appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 15. In the light of the law laid in the decisions referred to supra, we shall consider whether the Appellate Authority went wrong in accepting the evidence of PW1 to fix the fair rent. Section 134 of the Evidence Act says that no particular number of witnesses shall in any case be required for the proof of any fact.
15. In the light of the law laid in the decisions referred to supra, we shall consider whether the Appellate Authority went wrong in accepting the evidence of PW1 to fix the fair rent. Section 134 of the Evidence Act says that no particular number of witnesses shall in any case be required for the proof of any fact. In Gulam Sarbar v. State of Bihar (Now Jharkhand) [ (2014) 3 SCC 401 ], the Apex Court explained the rationale behind Section 134 as follows: “The matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Even in Probate cases, where the law requires the examination of at least one attesting witness, it has been held that production of more witnesses does not carry any weight”. (underline supplied) 16. In Laxmibai (Dead) thr. LRs. v. Bhagwantbuva (Dead) thr. LRs. [ (2013) 4 SCC 97 ] the Apex Court while considering a question whether the oral evidence tendered on the side of the plaintiff was sufficient to prove the deed and the ceremonies of adoption, it was held that in the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses.
It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced, do not carry any weight. 17. It follows that for proving a fact, plurality of evidence is not a mandatory requirement always. What matters is the quality and credibility of the evidence. When the court finds the oral testimony of a witness reliable, it need not look further for more evidence before recording its finding that the fact has been proved. The question still lingers in this case is, can the evidence of PW1 that come out only during cross-examination, be the basis for the finding. 18. Definition of ‘Evidence' in Section 3 of the Evidence Act makes it abundantly clear that all statements which the court permits or requires to be made before it by a witness in relation to matters of fact under inquiry is evidence and categorised as oral evidence. It necessarily means that the statement of a witness during chief-examination and cross-examination, followed by re-examination (if allowed), together constitute ‘oral evidence’. Any part of the oral evidence made during chief-examination, cross-examination or re-examination, found reliable by the court, can therefore be used to prove a particular fact. In this case, the statement made by PW1 during cross-examination that the rate of rent of a portion of the building in occupation of another tenant, who is a lawyer, is Rs.12,100/-, was not challenged. We hold that that evidence is sufficient to prove the fact as to the rent fetched by the said room during the relevant period. 19. Apart from the said evidence, prominence of the building, locational advantages and the amenities available were also considered in detail by the Appellate Authority while fixing the fair rent at the rate of Rs.12/-per sq.ft. and the periodic increase at the rate of 15% in every two years. 20.
19. Apart from the said evidence, prominence of the building, locational advantages and the amenities available were also considered in detail by the Appellate Authority while fixing the fair rent at the rate of Rs.12/-per sq.ft. and the periodic increase at the rate of 15% in every two years. 20. In the above view of the matter, it cannot be said that the judgement of the Appellate Authority fixing fair rent is either perverse or patently illegal or it suffers from any legal infirmity warranting interference under Section 20 of the Act. Therefore, we find no reason to interfere with the judgment of the Appellate Authority. We accordingly dismiss this Rent Control Revision. No costs.