Friday, 27 May 2016

When report of court commissioner is admissible even though it is objected by tenant?

The first challenge put forth by Sri.George Cherian

  during the course of his arguments was with respect to the

  area of the petition schedule room, which, according to


the landlord, was 265 sq.ft. and the tenant, 125 sq.ft.

According to him, both the authorities below went wrong

in holding that the petition schedule room is having an

area of 250 sq.ft. on the basis of Ext.C1, the report of the

Advocate Commissioner, which was marked without his

resistance being considered. A scrutiny of the relevant

records reveal that objection was filed by the tenant

against the facts reported by the Advocate Commissioner

in his report. It is urged by the learned counsel that the

Advocate Commissioner was not examined by the

landlord despite the incorporation of her name in the

witness list filed as early as on 10.12.2013 and therefore,

the opportunity to cross-examine was denied to him.

According to the learned counsel, in the said

circumstances, Ext.C1 commission report ought not have

been relied upon by the Rent Control Court. It is true, the


objections filed by the tenant find a place in the case

records forwarded to this court from the Rent Control

Court. We could not notice any falsity in the statement of

the counsel that the Commission report was marked as

Ext.C1 without examining the Advocate Commissioner.

In the above circumstances, it is pertinent to have a look

at the legal principles enunciated in Order 26 Rule 10

which is reproduced hereunder for convenient reference:

    "Procedure of Commissioner:- (1) The Commissioner,

    after such local inspection as he deems necessary and after

    reducing to writing the evidence taken by him, shall return

    such evidence, together with his report in writing signed by

    him, to the Court.

    (2) Report and depositions to be evidence in suit.- The

    report of the Commissioner and the evidence taken by him


    (But not the evidence without the report) shall be evidence


    in the suit and shall form part of the record, but the Court or,


    with the permission of the Court any of the parties to the


    suit may examine the Commissioner personally in open


    Court touching any of the matters referred to him or


    mentioned in his report, or as to his report, or as to the



      manner in which he has made the investigation.

      (3) Commissioner may be examined in person.-Where the


      Court is for any reason dissatisfied with the proceedings of


      the Commissioner, it may direct such further inquiry to be


      made as it shall think fit."



9.Therefore, sub-Rule (2) of Rule 10 of Order XXVI

  envisages that the report of the Commissioner and the


  evidence taken by him shall be evidence in the suit and


  shall form part of the record. But, it is left open for the


  court or either of the parties to a lis after getting


  permission of the court to examine the commissioner


  personally in open court regarding any of the matters


  reported to by the latter in his report or the manner in


  which the investigation has been conducted by him.


  Upon perusal of the records of the case obtained from the

  Rent Control Court, we are convinced that the

  commission report was objected to by the tenant in

  writing. It is the argument of Sri.George Cherian that


despite the objection raised by the tenant, the landlord

abstained himself from taking measures to examine the

Advocate Commissioner, and thereby opportunity was

denied to the former to cross-examine him. According to

him, such being the circumstances, Ext.C1 ought not to

have been relied upon by the authorities below to arrive at

the finding regarding the area of the petition schedule

premises as 250 sq.ft. We also could not find fault with

the Rent Control Court placing reliance upon Ext.C1 for

the twin reasons. Firstly, the commission was not an ex-

parte one. Secondly, the tenant has not availed of his


entitlement under Order 26 Rule 10(2) to examine the


Advocate Commissioner to elicit explanation on the


matters of resistance.       If the tenant applied for


examination of the Advocate Commissioner under sub-


rule (2) of Rule 10 of Order 26, the court would not have



 any other option than to grant him permission to examine

 the Advocate Commissioner. In such a circumstance, it is


 contemplated in the provision referred to supra itself that


 the reliability of the report in evidence would be subject


 to the outcome of the facts elicited in the cross-


 examination. In the case on hand, the tenant, having not


 applied for getting permission to exercise the statutorily


 provided      right   of    examination    of   Advocate


 Commissioner, cannot now be heard to say before this


 Court exercising the powers of revision that the Rent


 Control Court went wrong in arriving at 250 sq. ft. as the


 area of the tenanted premises solely on the basis of


 Ext.C1.      The argument of Sri.George Cherian is

 untenable for the above reason and the authorities below

 cannot be found fault with in taking such a stand.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

              THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
                                   &
                THE HONOURABLE MRS.JUSTICE MARY JOSEPH

        WEDNESDAY, THE 5TH DAY OF AUGUST 2015
                      R C Rev.No. 297 of 2014 ()
                     
       RAJESH R.KARTHA
     Vs
       K.A. ISMAIL
 Citation: AIR 2016(NOC)292 Kerala

1.R.C.R.No.297 of 2014 is filed by the respondent in

  R.C.A.No.15 of 2014, of the Rent Control Appellate

  Authority, Ernakulam and the petitioner-landlord in

  R.C.P.No.82/2012 of the Rent Control Court, Ernakulam.

  The respondent in the Revision Petition is the appellant in

  the said R.C.A. and respondent-tenant in the Rent Control

  Petition.

2.R.C.R.No.316 of 2014 is filed by the appellant in

  R.C.A.No.15 of 2014 of the Rent Control Appellate

  
  Authority, Ernakulam and the respondent-tenant in

  R.C.P.No.82 of 2012 of the Rent Control Court,

  Ernakulam.       The respondent in the R.C.R is the

  respondent in the said R.C.A. and the petitioner/landlord

  in the Rent Control Petition.

3.Both the Revision Petitions cited supra are filed

  challenging the fixation of divergent rates of rent by the

  authorities below for the petition schedule room under

  Section 5(1) of the Kerala Buildings (Lease and Rent

  Control) Act, 1965, which for the sake of convenience

  would hereinafter be referred to as "the Act". The parties

  to these revision petitions shall also, for the sake of

  convenience, be referred to hereinafter in accordance with

  their original status in the R.C.P as landlord and tenant.

4.It is contended by Sri.Dinesh R.Shenoy, who has put forth

  the discontentment of the landlord with the judgment


dated 14.08.2014 of the Rent Control Appellate Authority,

Ernakulam in R.C.A.No.15/2014 modifying the fair rent

of Rs.55 per sq. feet fixed by the Rent Control Court by

reducing it to Rs.45 per sq.ft. It is contended at the outset

that the Appellate Authority has proceeded on baseless

assumptions and surmises to reject the prayer for

enhancement of monthly rent at the rate of Rs.100/- per

sq.ft., that the Appellate Authority failed to appreciate or

apply the principles of law laid down by this Court in

Edger Ferus v Abraham Itticheria (2004(4) KLT 767)

and which has been upheld by the Apex Court in 2009(4)

KLT 673 that the Appellate Authority ought to have

considered the best evidence available before it consisting

of the oral testimony of P.W.1, the landlord, P.W.2 the

tenant occupying the third room from the tenanted

premises in question which form part of a larger building,


  namely "Dr.Kartha Complex", Ext.C1, the commission

  report and Ext.X1 series of rental receipts issued by the

  landlord in the case in question to P.W.2 and finally that

  the Rent Control Appellate Authority, Ernakulam ought

  to have placed reliance on Ext.C1 commission report

  wherein the locational advantages of the tenanted

  premises and the prevalence of rent at the rate of

  Rs.20,000/- per month, for an adjacent room having an

  area of 160 sq.ft. situated in the building, namely, 'Kartha

  Complex' of which the petition schedule room is a part,

  are described.

5.It is contended by Sri.George Cherian, the learned

  counsel representing the tenant that the authorities below

  went wrong in holding on the basis of Ext.C1 in disregard

  of the objection raised by the petitioner that the petition

  schedule shop room was having an area of 250 sq.ft. in a


  circumstance when the rent deed was not forthcoming and

  the Advocate Commissioner was not examined that the

  Appellate Authority ought to have considered that the

  examination of P.W.2 was at the fag end of the trial, to the

  surprise of the tenant and that on account of the collusion

  allegedly involved in the evidence let in, the Rent Control

  Appellate Authority ought not to have relied upon Ext.X1

  series of unstamped rental receipts, despite the opposition

  raised by the opposite side against its marking.

6.Though rival pleas are put forth by the respective counsel

  as referred supra, the ultimate urge of both of them was

  for setting aside the judgment of the        Rent Control

  Appellate Authority, Ernakulam in R.C.A.No.15/2014 on

  the alleged ground of it being vitiated by illegality,

  impropriety and incorrectness. Sri.Dinesh Shenoy, the

  learned counsel also canvassed during the course of his

  
  argument to maintain the fair rent at Rs.55/- per sq.ft. as

  fixed by the Rent Control Court, Ernakulam. According

  to Sri.George Cherian, even if it is accepted for the sake

  of argument that the guidelines followed by both the

  authorities below for fixing the fair rent are valid and

  binding, then also the evidence on record falls short of

  fixing Rs.45/- as the fair rent.

7.As divergent rates of rent have been fixed by the

  authorities below, evidence on record is necessary to be

  dealt with in detail by this Court. The evidence let in by

  the landlord consists of the oral evidence of the landlord

  as P.W.1, his witness as P.W.2, Exts.A1 and A2, Ext.X1

  series and Ext.C1. The tenant has not let in any evidence.

8.The first challenge put forth by Sri.George Cherian

  during the course of his arguments was with respect to the

  area of the petition schedule room, which, according to


the landlord, was 265 sq.ft. and the tenant, 125 sq.ft.

According to him, both the authorities below went wrong

in holding that the petition schedule room is having an

area of 250 sq.ft. on the basis of Ext.C1, the report of the

Advocate Commissioner, which was marked without his

resistance being considered. A scrutiny of the relevant

records reveal that objection was filed by the tenant

against the facts reported by the Advocate Commissioner

in his report. It is urged by the learned counsel that the

Advocate Commissioner was not examined by the

landlord despite the incorporation of her name in the

witness list filed as early as on 10.12.2013 and therefore,

the opportunity to cross-examine was denied to him.

According to the learned counsel, in the said

circumstances, Ext.C1 commission report ought not have

been relied upon by the Rent Control Court. It is true, the


objections filed by the tenant find a place in the case

records forwarded to this court from the Rent Control

Court. We could not notice any falsity in the statement of

the counsel that the Commission report was marked as

Ext.C1 without examining the Advocate Commissioner.

In the above circumstances, it is pertinent to have a look

at the legal principles enunciated in Order 26 Rule 10

which is reproduced hereunder for convenient reference:

    "Procedure of Commissioner:- (1) The Commissioner,

    after such local inspection as he deems necessary and after

    reducing to writing the evidence taken by him, shall return

    such evidence, together with his report in writing signed by

    him, to the Court.

    (2) Report and depositions to be evidence in suit.- The

    report of the Commissioner and the evidence taken by him

    (But not the evidence without the report) shall be evidence

    in the suit and shall form part of the record, but the Court or,

    with the permission of the Court any of the parties to the

    suit may examine the Commissioner personally in open

    Court touching any of the matters referred to him or

    mentioned in his report, or as to his report, or as to the


      manner in which he has made the investigation.

      (3) Commissioner may be examined in person.-Where the

      Court is for any reason dissatisfied with the proceedings of

      the Commissioner, it may direct such further inquiry to be

      made as it shall think fit."


9.Therefore, sub-Rule (2) of Rule 10 of Order XXVI

  envisages that the report of the Commissioner and the

  evidence taken by him shall be evidence in the suit and

  shall form part of the record. But, it is left open for the

  court or either of the parties to a lis after getting

  permission of the court to examine the commissioner

  personally in open court regarding any of the matters

  reported to by the latter in his report or the manner in

  which the investigation has been conducted by him.

  Upon perusal of the records of the case obtained from the

  Rent Control Court, we are convinced that the

  commission report was objected to by the tenant in

  writing. It is the argument of Sri.George Cherian that


despite the objection raised by the tenant, the landlord

abstained himself from taking measures to examine the

Advocate Commissioner, and thereby opportunity was

denied to the former to cross-examine him. According to

him, such being the circumstances, Ext.C1 ought not to

have been relied upon by the authorities below to arrive at

the finding regarding the area of the petition schedule

premises as 250 sq.ft. We also could not find fault with

the Rent Control Court placing reliance upon Ext.C1 for

the twin reasons. Firstly, the commission was not an ex-

parte one. Secondly, the tenant has not availed of his

entitlement under Order 26 Rule 10(2) to examine the

Advocate Commissioner to elicit explanation on the

matters of resistance.       If the tenant applied for

examination of the Advocate Commissioner under sub-

rule (2) of Rule 10 of Order 26, the court would not have


 any other option than to grant him permission to examine

 the Advocate Commissioner. In such a circumstance, it is

 contemplated in the provision referred to supra itself that

 the reliability of the report in evidence would be subject

 to the outcome of the facts elicited in the cross-

 examination. In the case on hand, the tenant, having not

 applied for getting permission to exercise the statutorily

 provided      right   of    examination    of   Advocate

 Commissioner, cannot now be heard to say before this

 Court exercising the powers of revision that the Rent

 Control Court went wrong in arriving at 250 sq. ft. as the

 area of the tenanted premises solely on the basis of

 Ext.C1.      The argument of Sri.George Cherian is

 untenable for the above reason and the authorities below

 cannot be found fault with in taking such a stand.

10.The second point of argument to which our attention was


drawn by Sri.George Cherian, the learned counsel

representing the tenant, was pertaining to the 13 numbers

of unstamped rental receipts marked in R.C.P.No.82 of

2012 as Ext.X1 series and relied upon by the authorities

below. According to him, our interference is warranted in

the matter.   It is contended, those rental receipts are

allegedly issued by the landlord (petitioner in RCP) to

P.W.2, who is allegedly another tenant in occupation of a

room adjacent to the tenanted shop-room in question and

forming part of the larger building, Dr. Kartha complex

belonging to the former. According to the counsel, the

Rent Control Court, Ernakulam has committed a grave

error in marking the rental receipts after taking notice of

its' non-bearing of stamps. It is also contended that the

court should not have relied on those while deciding the

issue on hand.

 R.C.R.Nos.297 & 316/2014
                              -:13:-




11.It is clear on a glance at Ext.X1 series that those do not

 bear stamps.      The endorsement on the docket of the

 respective documents show that the Rent Control Court

 has noticed the error at the initial stage of its' reception,

 but overlooked that while marking it. It is also not

 indicated from the materials available with the case

 records whether penalty was imposed and paid. Such an

 argument was also not forthcoming from Sri.Dinesh

 Shenoy, the learned counsel representing the landlord. It

 is the argument of Sri.George Cherian that, in the event of

 non-production of the rental agreement by P.W.2 despite

 his admission in the box that it is available with him, the

 Rent Control Court ought not have relied upon it in the

 matter of fixation of fair rent. It is contended by him that

 the said circumstance is a sufficient ground warranting

 this Court's intervention.

 R.C.R.Nos.297 & 316/2014
                                -:14:-




12.In view of the arguments, we feel it appropriate to have a

 look at the law that governs the question. Chapter IV of

 the Kerala Stamp Act, 1959 provides for the way in which

 the instruments not duly stamped are to be dealt with. As

 per Section 33 contained therein, a duty is cast upon

 every person who has the authority to receive evidence

 and every person in charge of a public office before

 whom an unstamped instrument is usually produced, to

 impound the same and sub-section (2) of Section 33

 contains the procedure to be followed with and it is

 quoted hereunder for convenient reference.

       "For that purpose every such person shall examine

       every instrument so chargeable and so produced or

       coming before him, in order to ascertain whether it is

       stamped with a stamp of the value and description

       required by the law in force in the State when such

       instrument was executed or first executed."


13.The records make it clear that the rental receipts have

R.C.R.Nos.297 & 316/2014
                               -:15:-




been marked and admitted in evidence through P.W.2

during his examination without the factum of its' non-

bearing of stamps being adverted to by the Rent Control

Court. It is pertinent to note that the learned counsel

appearing for the tenant in the Rent Control Court has

also failed to raise opposition on the ground while

marking it. In this connection, we accept the dictum laid

down by this Court in George v. Subordinate Judge

(1976 K.L.T. 700).         The facts of the case reveal a

circumstance where an insufficiently stamped document

happened to be admitted by the trial court and directions

are issued subsequently to the party who produced the

same to pay the required stamp duty and fine. The court

held:-

    "After admitting an instrument, which is either not

    stamped or not sufficiently stamped in evidence nothing

    can be done in the matter of impounding by that court."

 R.C.R.Nos.297 & 316/2014
                             -:16:-




14.When opposition was raised by the opposite party while

 tendering an unstamped instrument in evidence and it was

 marked "subject to objection" it has a clear indication that

 the objection was not judicially determined or in other

 words, the court has not applied its mind as to its

 admissibility in evidence and a conclusion is impossible

 that the trial court has admitted the document in evidence

 on endorsing the marking upon it. Only after considering

 the objections with a judicial mind and upon admitting

 the document in evidence that its admissibility would

 become unquestionable. In the case on hand, it is worthy

 of noting that the marking of Ext.X1 series was not

 subject to objection.

15.The legal principle contained in Section 35 of the Kerala

 Stamp Act also is relevant in the context and it is quoted

 hereunder for convenience.

 R.C.R.Nos.297 & 316/2014
                                -:17:-




      "35.Admission of instrument where not to be

      questioned.-- Where an instrument has been admitted in

      evidence, such admission shall not, except as provided

      in Section 59, be called in question at any stage of the

      same suit or proceeding on the ground that the

      instrument has not been duly stamped."


16.Therefore, a document can be said to be admitted in

 evidence only when it is formally proved and tendered in

 evidence and marked after affixing the necessary

 endorsement on it under Order 13 Rule 4 of the Code of

 Civil Procedure. Once admitted, as provided in Section

 34 of the Kerala Stamp Act, its admission could only be

 questioned by a Court of the category referred to in

 Section 59 of the Kerala Stamp Act if that Court is of

 opinion that it is insufficiently stamped, such Court may

 determine the stamp duty payable and require the person

 in possession of the document to produce it for the

 purpose of impounding. Section 59 is also quoted for

R.C.R.Nos.297 & 316/2014
                                -:18:-




convenient reference as follows:-

    "59.Revision of certain decisions of courts regarding the

    sufficiency of stamps.--(1) When any Court in the exercise

    of its Civil or Revenue jurisdiction or any criminal court in

    any proceeding under Chapter XII or Chapter XXXVI of

    the Code of Criminal Procedure, 1898, makes any order

    admitting any instrument in evidence as duly stamped or as

    not requiring a stamp, or upon payment of duty and a

    penalty under Section 34, the Court to which appeals lie

    from, or references are made by, such first mentioned Court

    may, of its own motion or on the application of the

    Collector, take such order into consideration.

    (2) If such court, after such consideration, is of opinion that

    such instrument should not have been admitted in evidence

    without the payment of duty and penalty under Section 34,

    or without the payment of a higher duty and penalty than

    those paid, it may record a declaration to that effect, and

    determine the amount of duty with which such instrument

    is chargeable, and may require any person in whose

    possession or power such instrument then is, to produce the

    same, and may impound the same when produced.

    (3) When any declaration has been recorded under sub-

    section (2), the court recording the same shall send a copy

    thereof to the Collector and, where the instrument to which

    it relates has been impounded or is otherwise in the

    possession of such court, shall also send him such

 R.C.R.Nos.297 & 316/2014
                                 -:19:-




      instrument.

      (4) The Collector may thereupon, notwithstanding anything

      contained in the order admitting such instrument in

      evidence, or in any certificate granted under Section 41, or

      Section 42, prosecute any person for any offence against

      the stamp-law which the Collector considers him to have

      committed in respect of such instrument.

      Provided that--

      (a) No such prosecution shall be instituted where the

      amount (including duty and penalty) which, according to

      the determination of such court, was payable in respect of

      the instrument under Section 34, is paid to the Collector,

      unless he thinks that the offence was committed with an

      intention of evading payment of the proper duty;

      (b) except for the purpose of such prosecution, no

      declaration made under this section shall affect the validity

      of any order admitting any instrument in evidence, or of

      any certificate granted under Section 41."


17.Therefore, prior to admitting an insufficiently stamped

 document produced, only one opportunity is given to the

 opposite party to object to. As per Section 59 of the

 Kerala Stamp Act, the further opportunity to challenge

 will be on the District Collector/State but only subject to

 R.C.R.Nos.297 & 316/2014
                            -:20:-




 the directions of the Appellate Court to take appropriate

 action. The power can be exercised by the Appellate

 Court only when the court below has passed an order

 admitting the unstamped instrument in evidence.

18.In the case on hand, the unstamped rental receipts, 13 in

 numbers have been duly marked and admitted in evidence

 without    any   objection   being   raised   against   its

 admissibility on the reason that those bear no stamps. At

 the tenant's instance, the Rent Control Court's order of

 enhancement of rent was appealed against, but the Rent

 Control Appellate Authority failed to exercise the power

 of revision vested in it under Section 59 of the Kerala

 Stamp Act, 1959. Therefore, in view of the mandate of

 Section 35 of the said Act, the admissibility of the rental

 receipts already admitted in evidence as Ext.X1 series

 cannot be questioned before this Court, which now is in

 R.C.R.Nos.297 & 316/2014
                           -:21:-




 seizin of the matter, being the revisional authority. To

 conclude, the authorities below were absolutely not in

 error in dealing with the matter and the argument

 advanced against the reliability of those documents is

 untenable.

19.The next argument advanced by the learned counsel for

 the tenant was with respect to the reliance placed by the

 authorities below on the testimony of P.W.2. According

 to him, P.W.2 was examined at the fag end of the trial

 without his name being incorporated in the witness list

 filed on October, 2013. According to him, the authorities

 below went wrong in not appreciating that aspect though

 they were apprised of that in time. According to him, the

 landlord was permitted to let such evidence on record and

 in the circumstances a colour of collusion cannot be ruled

 out. To strengthen his argument further       the learned

R.C.R.Nos.297 & 316/2014
                            -:22:-




counsel has drawn our attention to the evidence of P.W.2

and addressed that the rental agreement by virtue of

which the tenanted premises was let out to P.W.2 by the

landlord in the case on hand is not produced despite his

positive response to the question put by the tenant's

counsel in cross-examination regarding its availability

that, it will be produced. It is true the rental agreement is

the apt and proper document to speak about the rent

agreed among the parties to be paid in respect of the

tenanted premises and it is the bounden duty of the

landlord to produce the original with him to substantiate

the same, especially when collusion is alleged.

Admittedly, according to P.W.2, the rental agreement is

available with him, but he failed to place that on record.

The landlord could have very well taken measures to

procure its production, but he failed. Instead, Ext.X1

R.C.R.Nos.297 & 316/2014
                           -:23:-




series was brought in. P.W.2 has also a case in the box

that he was not insisted to produce that by his landlord,

who is none other than the landlord in the case on hand,

lest, that would have been produced by him. Anyway, the

rental agreement, the appropriate document on the basis

of which the tenanted premises has been let out to P.W.2

is not available before the Rent Control Court. These

aspects to a certain extent lend support to the address by

the tenant that the evidence let in by P.W.2 was the

outcome of the collusion between the landlord and P.W.2.

Being an authority sitting in revision, there is limitation

for us to interfere. The Apex Court has also reminded us

through the dictum laid down in Hindustan Petroleum

Corporation Ltd. V Dildahar Singh           (2014(4) KLT

182) about the realm within which the powers of revision

would be exercised.         The relevant paragraph is

R.C.R.Nos.297 & 316/2014
                                  -:24:-




reproduced for reference:

     "45. We hold, as we must, that none of the above Rent

     Control Acts entitle the High Court to interfere with the

     findings of fact recorded by the First Appellate Authority

     because on re-appreciation of the evidence, its view is

     different from the Court/Authority below.              The

     consideration or examination of the evidence by the

     High Court in revisional jurisdiction under these Acts is

     confined to find out that finding of facts recorded by the

     Court/Authority below is according to law and does not

     suffer from any error of law. A finding of fact recorded

     by Court/Authority below, if perverse or has been arrived

     at without consideration of the material evidence or such

     finding is based on no evidence or misreading of the

     evidence or is grossly erroneous that, if allowed to stand,

     it would result in gross miscarriage of justice, is open to

     correction because it is not treated as a finding according

     to law. In that event, the High Court in exercise of its

     revisional jurisdiction under the above Rent Control Acts

     shall be entitled to set aside the impugned order as being

     not legal or proper. The High Court is entitled to satisfy

     itself the correctness or legality or propriety of any

     decision or order impugned before it as indicated above.

     However, to satisfy itself to the regularity, correctness,

     legality or propriety of the impugned decision or the

     order, the High Court shall not exercise its power as an

 R.C.R.Nos.297 & 316/2014
                                 -:25:-




      appellate power to re-appreciate or re-assess the

      evidence for coming to a different finding on facts.

      Revisional power is not and cannot be equated with the

      power of reconsideration of all questions of fact as a

      court of first appeal. Where the High Court is required

      to be satisfied that the decision is according to law, it

      may examine whether the order impugned before it

      suffers from procedural illegality or irregularity."


20. The finding of the authorities below on the matters on

 which elaborate discussion is already had by us supra

 being based on sound principles of law and appreciation

 of evidence in its correct perspective. Therefore, in view

 of the dictum cited supra, interference by this Court on

 those aspects is absolutely unwarranted.

21.Upon perusal of the order of the Rent Control Court,

 Ernakulam and the judgment of the Rent Control

 Appellate Authority, Ernakulam, it could be gathered that

 both the authorities have fixed the fair rent divergently by

 enhancing it, placing reliance on the evidence on record

 R.C.R.Nos.297 & 316/2014
                              -:26:-




 indicative of the locational and commercial importance of

 the locality where the tenanted premises on hand is

 situated. The approach of both the authorities below was

 in favour of the landlord, but there is divergence in the

 rate of fair rent fixed. In the circumstances, the evidence

 on record need to be re-evaluated in the light of the

 arguments advanced by the rival parties to these

 revisions.

22.Prior to adverting to the evidence let in by the parties in

 the case on hand, it would be relevant to have a look at

 the parameters laid down by a Division Bench of this

 Court in Edger Ferus v Abraham Itticheria (2004(1)

 KLT 767), which have also been upheld by the Apex

 court (2009 (4) K.L.T. 673). The guidelines enumerated

 therein are not exhaustive. Those are some among the

 parameters meant to be looked into by the courts

R.C.R.Nos.297 & 316/2014
                                    -:27:-




empowered by 'the Act' to deal with the question of

fixation of fair rent. The parameters are quoted hereunder:



      "................7. Rent Control Court while fixing fair rent

      could take note of the inflation and resultant reduction

      in the purchasing power of money, variations in the

      cost of living index in the area since commencement of

      the lease, demand for accommodation and availability

      of the buildings in the locality.

      8. The cost of construction of the building including

      cost of labour and building materials, capital value of

      the entire premises in the enjoyment of the tenant

      inclusive of the value of the land under the actual

      enjoyment of          the  tenant   whether    immediately

      appurtenant to the building or otherwise, type of

      construction, locational importance, situations of the

      tenanted premises, ground floor, first floor etc. and

      other advantages and amenities, such as access to

      places of public importance like bus stand, Railway

      station, educational institution, hospitals etc. would

      also be guiding factors.

      9.     The Rent Control Court will also take into

      consideration the prevailing rent in the locality for the

      same and similar accommodation.              The type of

      construction, the amenities, general or special provided

 R.C.R.Nos.297 & 316/2014
                                  -:28:-




       in the building, the open land attached to the building,

       whether residential or non-residential are also to be

       borne in mind.

       10. Annual rental value of the building at the time of

       filing the application for fair rent may also be taken as

       a guiding factor along with others.

       11. Revision or fresh imposition of municipal taxes,

       cess, rate in respect of other increase in the charge of

       electricity or water consumption by the tenant and also

       by the landlord and increase on account of sufficient

       repairs would also be taken note of by the Rent Control

       Court.

       12. The Rent Control Court can while resolving any

       rent control dispute on an application either by the

       landlord or tenant examine whether the rent is static

       and requires revision and fix fair rent accordingly

       permitting the parties to adduce evidence."




23.The parameters cited supra are directives to the

 authorities who are shouldered with the power to fix fair

 rent and they are expected to exercise the discretion from

 within that sphere. Or in other words, the fixation of fair

 rent should be on sound reasoning and based on

 R.C.R.Nos.297 & 316/2014
                                   -:29:-




 satisfactory     and      sufficient    authoritative       materials

 indicative of the aforesaid parameters.

24.Before adverting to the evidence on record, it is apposite

 to have a discussion on the pleas of the landlord in the

 Rent Control Petition.

25.The landlord had pleaded several factors in paragraph 4

 and 5 of the Rent Control Petition to apprise the court that

 the tenanted premises was situated in an area of high

 locational and commercial importance.                 The relevant

 paragraphs are quoted hereunder for reference:

         "4)The petition schedule building situate in the ground

         floor of a multi storied building namely Dr.Kartha

         Complex. The said building situate in the junction

         where Paramara Road joins Banerji Road. On the

         southern side of the said building is Banerji Road and

         on the western side is Paramara Road.         The said

         building has got direct access from the aforesaid two

         public roads. The land on which the said building

         situates is located in a commercial area where so many

         commercial buildings dealing with various items are

R.C.R.Nos.297 & 316/2014
                               -:30:-




      located.      The multi storied building Dr.Kartha

      Complex of which the building let out to the

      respondent forms part also accommodates various

      commercial as well as other establishments. There are

      various      banks    and    commercial    institutions,

      educational institutions, hotels, clinics, petrol and

      diesel pumps, shopping centres etc. in the vicinity of

      the said building. The bus stops situate very adjacent

      to the said building. There are various public utility

      services in the locality where the building is located.

      The North Railway station is hardly 250 metres away

      from the said building.         Kaloor junction and

      Kacheripady junction, which are two important

      commercially potential areas, are in the vicinity of the

      said building.

           5)..........Since commencement of the lease

      arrangement, there is inflation and resultant reduction

      in the purchasing power of money, increase in the cost

      of living index, cost of construction of the building,

      high demand for accommodation and availability in

      the local authority where the building situate. The

      importance of the area where the building situate, the

      capital value of the building, presence of places of

      public importance in the vicinity of the petition

      schedule building including the prevalent rate of rent

      of the buildings in the locality and revision of

 R.C.R.Nos.297 & 316/2014
                                  -:31:-




         municipal taxes and other statutory duties etc., make

         the building let out to the respondent, a commercially

         potent one. The aforesaid amenities attached to the

         building let out to the respondent warrants re-fixation

         of the monthly rent."


26.It is pertinent to note that the landlord as P.W.1 has

 sworn those matters in the proof affidavit filed by him in

 lieu of chief examination and despite the lengthy cross-

 examination with which he was subjected to nothing

 adverse could be elicited by the tenant. P.W.2 is the

 tenant of the landlord in question occupying the third

 room from the tenanted premises situated in 'Dr.Kartha

 Complex'. He has stated in the box in categoric terms that

 the premises in his occupation was taken on lease by him

 in the year 2011 for a monthly rent of Rs.12,000/-.

 Ext.X1 series of rental receipts (13 in numbers) admitted

 in evidence lend support to the oral evidence tendered by

 P.W.2 and nothing was elicited in his cross examination

 R.C.R.Nos.297 & 316/2014
                                  -:32:-




 liable to discredit him.              In Ext.C1, the Advocate

 Commissioner has reported on the basis of the

 information obtained during inspection of the tenanted

 premises that the shop room was let out to P.W.2 by the

 landlord for Rs.12,000/-. The Advocate Commissioner

 has also reported in paragraphs 1 and 3 of Ext.C1, the

 commercial potentiality and importance of the area where

 the petition schedule building is situated in the following

 words:-

         "1. .........The shop is situated near the bus stop. From

        the said bus stop just turned to the plaint scheduled

        room. The extended portion separated from the foot

        path of the road and the drainage by a small separating

        wall. That portion also tiled.

           3. ......... The locality seems to be of very high

        commercial potentiality due to junction point of

        Paramara road and Banerji Road, the famous North

        Town Hall situated just opposite of said shop and 300

        meter away North Railway station."


27.Therefore, testimony of P.W.1 and Ext.C1 convincingly

 R.C.R.Nos.297 & 316/2014
                             -:33:-




 establish that the tenanted premises in question forms part

 of a larger building namely 'Dr.Kartha Complex' situated

 in one of the most commercially and locationally

 important area of the Kochi city. The special locational

 advantages with which the tenanted premises was blessed

 with are also brought on record by the landlord by

 mounting the box and also by taking out a commission.

28.The evidence let in also shows that the tenanted premises

 is situated at the ground floor of a larger building namely

 'Dr.Kartha Complex' and it has the added advantage of

 frontage of two famous thoroughfares of the Kochi City

 namely Banerjee Road and Paramara Road. The fact that

 the tenanted premises is situated near to the prestigious

 Kerala High Court building, North Town Hall and North

 Railway Station also add colour to the importance of the

 area. Nothing stands in the way of this Court taking

 R.C.R.Nos.297 & 316/2014
                             -:34:-




 judicial notice that the tenanted premises is surrounded by

 important institutions like Church, Temple, educational

 institutions like Schools and Colleges. The authorities

 below have taken note of and appreciated all those factors

 while fixing the rate of rent.

29.The contention regarding the old nature of 'Dr.Kartha

 Complex" of which the tenanted premises forms a part

 was taken by the tenant in its objection filed at the initial

 stage itself. It is contended in the objection that the

 tenanted premises was let out to him in the year 1984. It

 is also contended that 'Dr.Kartha Complex' was a

 construction during the period 1978-1979.          There is

 absolutely no denial or dispute from the landlord of the

 said contention of the tenant. The only dispute of the

 landlord is not with respect to the oldage of the building

 but only with regard to the oldest nature of the building

 R.C.R.Nos.297 & 316/2014
                            -:35:-




 and that is evident from his statement:

 ".yC^5a{"        M^7fJ         /xUa"      I]A"       f:K

 f5G_?N^fCKa IyE^W Vx_O\o."



30.The Advocate Commissioner has also reported in Ext.C1

 on the basis of the information obtained from the tenant's

 son that the tenanted premises was taken on rent in the

 year 1984, which factum was neither controverted nor

 disproved by the landlord. The rental agreement is also

 not forthcoming in evidence. Therefore, there is

 absolutely no reason to doubt the version of the tenant

 that the tenanted premises is part of a building of not less

 than 36 years old. Neither the oral evidence of P.W.1 nor

 that of P.W.2 or Ext.C1 would direct us to form a

 conclusion that improvements or infra-structures of the

 modern nature have been extended to the tenanted

 R.C.R.Nos.297 & 316/2014
                            -:36:-




 premises so as to increase its commercial potentiality,

 during the years of its occupation and enjoyment by the

 tenant.    In the said circumstances, this Court finds

 absolutely no error in the       conclusion drawn by the

 authorities below, on the basis of the evidence available

 that the building was an old one.

31.The overall analysis of the evidence on record makes it

 clear that the relatively old age of the building and the

 abstinence of the landlord from making improvements,

 facilities or amenities to the tenanted premises are the

 other factors pleaded and proved by the tenant to impress

 the court that the tenanted premises do not adapt to the

 requirements of a modern man or bear the facilities and

 amenities available in a newly constructed building.

32.A plea of flooding of the tenanted premises with rain

 water on account of the lifting of the road level due to

R.C.R.Nos.297 & 316/2014
                             -:37:-




repeated tarring is shown as a reason by the learned

counsel for the tenant liable to attenuate the importance of

the tenanted premises. With regard to the contention of

the tenant in his objection that the building 'Kartha

Complex' is situated at a lower level from the foot path is

admitted by the landlord, but, he categorically denied the

rest of the contentions that the tenanted premises being

situated in the ground floor would be flooded in rainy

season.    The tenant has also failed in adducing any

independent positive evidence in that regard. Admittedly,

even according to the landlord, the road has been tarred

repeatedly but that has not led to the raising of the road

level. It is pertinent to notice that despite raising of these

contentions, the tenant did not let in any evidence in

support thereof. He has not even mounted the box to let

in oral evidence. Though a commission was taken up by

 R.C.R.Nos.297 & 316/2014
                            -:38:-




 the landlord after serving notice upon him, he failed to

 take measures to substantiate the contented facts by

 availing the services of the Advocate Commissioner.

 Therefore, the tenant by any stretch of imagination could

 be benefited by reiterating the argument on that aspect,

 before us. Therefore, we could not see any merit in the

 counsel's argument that the authorities below have lost

 sight of those aspects while forming its opinion as to the

 fair rent to be fixed.

33.Our attention was also drawn by Sri.George Cherian to

 the fact that the bus stop which was available in front of

 the tenanted premises was shifted to some other place on

 account of the ongoing construction work of Metro Rail

 and the North Overbridge and for the said reason the

 commercial potentiality of the tenanted premises has been

 considerably reduced. According to him, parking space is

 R.C.R.Nos.297 & 316/2014
                                  -:39:-




 lacking for the tenanted premises in question and that

 factor also tend to attenuate the commercial importance.

34.It is pertinent to note from the order of the Rent Control

 Court and the judgment of the Rent Control Appellate

 Authority that both the authorities have concurred in

 taking the view that parking space and bus stop facility

 are lacking for the tenanted premises. The relevant part in

 the order of the Rent Control Court leading to the fixation

 of fair rent at the rate of Rs.55 per Sq.ft. is quoted for

 reference to ascertain how the evidence before it was

 appreciated by the Rent Controller:-




          "14. When the evidence of PW2 and Exts.X1 series

          are taken into account, the rate of rent of the room

          of PW2 seems to be Rs.75/- per square feet. PW2

          stated that, the rent was fixed in 2011. But as

          admitted by PW1, recently the construction of the

          Metro Rail is going on near to the petition schedule

 R.C.R.Nos.297 & 316/2014
                                -:40:-




        building. The evidence of PW1 and PW2 as a

        whole reveals that, recently the bus stop has been

        shifted to another place. It is only a matter of

        inference that, major construction projects near to a

        building complex will have it's own consequences

        and adverse impacts on the conveniences, amenities

        and commercial importance of the locality.

        Naturally that may result in the profitability of the

        business also. It is conceivable from the evidence

        that during rainy season, though temporarily, drain

        water used to enter into the building. That also may

        affect the amenities in the building. When all the

        above facts, age of the building, rate of inflation,

        fall in money value etc. are considered, I feel that,

        Rs.55/- can be fixed as the fair value of the building

        with effect from April 2012 onwards with 15%

        enhancement     of   the   existing   monthly     rent

        quinquennially. So the aggregate monthly rent for

        250 Sq.ft @ Rs.55/- may come to Rs.13,750/-."



35.The Rent Control Appellate Authority in paragraph 13 of

 its judgment has considered this aspect in the following

 lines:-

       "13. PW1 is the respondent, PW2 is a tenant in the nearby

R.C.R.Nos.297 & 316/2014
                                -:41:-




     room which also forms part of the same building.

     Although PW1 denied, PW2 admitted that the bus stop

     near the petition schedule building was shifted to another

     place and that no parking facility has been available in the

     area. PW2 also agreed to the suggestion that the petition

     schedule building is the oldest building in the locality. It

     shows that the petition schedule building has a

     disadvantage of its oldage and of non-availability of

     parking space. When the bus stop in front was moved to

     another place, assemblage of the people in front is

     considerably reduced.     That also is a factor affecting

     commercial potentiality of the building. In fact, these

     aspects were taken into consideration by the trial court.

     However, considering the evidence of PW2 and Ext.X1

     series, the trial court found that Rs.75/- per sq. feet was

     being paid to a nearby room as rent and therefore Rs.55/-

     per sq. feet should be the fair rent of the petition schedule

     building. "

 R.C.R.Nos.297 & 316/2014
                             -:42:-




36.It is pertinent to note now whether the authorities below

 have appreciated the evidence in its proper perspective.

 The relevant portion of P.W.1's testimony on the context

 is:

         "&\aU LXm Xmx^a_g\Am gI^5aK LXa5Z

         YV<_MG_5 f5G_?J_fa fDAaUVJm L^HV<_

         gy^A_\^Cm      H_VJ^ym.e%U_f?     bus    shelter

         )I^O_xaKa.e metro Rail fa H_VN^CUaN^O_ bus

         stop %U_?aKm N^x_O_G_g\o? (Q)e'gM^]a" I?_E^ym

         UV" 5?Oaf?eside W DfKO^Cm.(A). 5?Nay_Oaf?

         5ay:nm N^y_Og\o IaD_O LXm Xmgx^Mm?efD^Ga

         I?_E^y^Cm.e& bus stop IxN^x gy^A_W 5ay:na

         N^y_O^Cm     XmE_D_   f:OnaKfDKa     IyE^W
         Vx_O\o."



37.The relevant portion of deposition of P.W.2, wherein this

 context is referred is quoted hereunder.

 "4..fa 5?Nay_Oaf? NaX UVJ^O_xaKa NaOm North

 bus stop.e'gM^Z NaX UVJ\o. ................ .fa

 5?Nay_Oaf?        Ix_XxJm       UI_     I^VAm       f:On^X

 R.C.R.Nos.297 & 316/2014
                                 -:43:-




 Xl5xcN_\o.eIxN^xgy^A_fa 'xaUVUa" no-parking

 area &Cm."

38.In re-examination it was spoken by P.W.2

 ".fa 5?Oaf? NaO_W Townhall M^7Jm parking yard

 )Im."

39.It is also pertinent at this juncture to read his testimony

 "Lovely Corner W H_Km 3-^ NfJ shutter &Cm .fa

 5?."

40.In Ext.C1, the report of the Advocate Commissioner, the

 location of the tenanted premises is described in

 paragraph 1 as follows:

           "The plaint schedule room is facing towards west of

           Paramara road and south to Banerji road of the

           ground floor of the Dr.Kartha's complex.      The

           petition scheduled room is known as Lovely Corner."


41.Further in the same paragraph description continues to

 the effect

 R.C.R.Nos.297 & 316/2014
                                     -:44:-




          "1. .........The shop is situated near the bus stop. From

          the said bus stop just turned to the plaint scheduled

          room. The extended portion separated from the foot

          path of the road and the drainage by a small separating

          wall. That portion also tiled."


42.It is further reported by the Advocate Commissioner in

 Ext.C1:

             "The shop is situated near the bus stop.

             From the bus stop just turned to the

             plaint scheduled room."




43.Moreover, Ext.C1,               the report of the Advocate

 Commissioner is crucial on the point when it states:

            "The site is situated near roads crossing

            junction, North over bridge, Railway

            Station, Bus stop and Paramara temple."




44.These factors remain uncontroverted also. The tenant did

 R.C.R.Nos.297 & 316/2014
                             -:45:-




 not let in oral evidence of his own in support of the plea.

 P.W.1 in the box during cross-examination has taken the

 stand of total denial. P.W.2, his witness who is a tenant

 of the third room from the tenanted premises since 2011

 has let in oral evidence that the bus stop available in

 front of his shop was shifted therefrom. But, the place

 whereto it was shifted was not spoken by P.W.2.

45.Now coming to the evidence on record, P.W.2 has

 undisputedly stated in the box in response to a specific

 question put by the learned counsel for tenant during

 cross examination that parking space is available for two

 wheelers and that the bus stop in front of the tenanted

 premises leased out to him by P.W.1, which is part of

 'Dr.Kartha Complex' has been shifted from its front side

 to a nearby side. P.W.2 has never spoken that the bus stop

 has been shifted to a far-off place owing to the

 R.C.R.Nos.297 & 316/2014
                              -:46:-




 construction of Metro Rail and the North Overbridge. It

 is also pertinent to note at this juncture that the shop room

 occupied by P.W.2 is the third room from the tenanted

 premises in question.

46.The analysis of the evidence on record makes it clear

 that, the tenant has thoroughly failed to adduce

 convincing evidence that the facilities of parking space

 and bus stop were not available to the tenanted premises.

 But, the authorities below have appreciated the evidence

 on record in the wrong perspective to conclude that the

 tenant was successful in establishing that the commercial

 potentiality of the tenanted premises has been diminished

 considerably due to lack of parking space and bus stop

 near to the tenanted premises in question.

47.Therefore, we have no hesitation to state that the

 authorities below have appreciated the evidence on record

 R.C.R.Nos.297 & 316/2014
                               -:47:-




 in its wrong perspective. Both the authorities below have

 laid   considerable     importance    to  the    factum     of

 deterioration of commercial potentiality of the locality on

 account of the shifting of bus stop and the non-

 availability of the parking space due to the ongoing

 construction work of Metro Rail and North Overbridge,

 which was totally a misconception of the evidence on

 record.

48.On a re-appreciation of the totality of the evidence on

 record in that connection, it could be gathered that space

 is available near the tenanted premises at its western side

 for parking of two wheelers and therefore, it is improper

 for the tenant to state that the customers find it difficult to

 attend the shop.

49.Therefore, the only conclusion possible from the

 evidence referred supra was that the tenanted premises is

 R.C.R.Nos.297 & 316/2014
                             -:48:-




 situated very near to the bus stop. Therefore, it is clear

 from the evidence that the bus stop which was originally

 available just in front of the premises let out to P.W.2 has

 been shifted to a place near to the tenanted premises in

 question occupied by P.W.1.        Therefore, the tenant's

 attempt to establish that the commercial potentiality of the

 tenanted premises has been deteriorated due to shifting of

 bus stop and taking over of space for parking vehicles by

 the ongoing construction works has turned futile.

50.There is every reason for us to conclude that, the oral

 evidence let on record by P.W.1, P.W2 and Ext.C1,

 satisfactorily establish the commercial importance of the

 locality where the tenanted premises is situated. The

 several factors to which our attention was adverted to by

 the tenant, if established by cogent and satisfactory

 evidence, undoubtedly would have directed us to draw a

R.C.R.Nos.297 & 316/2014
                           -:49:-




conclusion that the commercial viability of the area has

been reduced. But in view of the foregoing discussions,

we are forced to take a stand that the tenant was

unsuccessful in establishing those pleaded factors, having

the trend to attenuate the importance. It is also beyond

the scope of imagination of a prudent man that the

construction works of the Metro Rail and the North

Overbridge would reduce the commercial potentiality of

the locality.   The claim of P.W.1 that the tenanted

premises is situated in the heart of Kochi city with the

prestigious institutions like the High Court of Kerala,

Town Hall and the North Railway Station functioning

around in reasonable distance would be diminished. No

doubt,   those    could   only   bring   in   tremendous

improvements in the areas and achievements to the people

engaged in various business activities in and around the

 R.C.R.Nos.297 & 316/2014
                             -:50:-




 area. It is also pertinent to note that the business which

 the tenant was conducting in the tenanted premises is only

 sale of mobile phones and its accessories. Normally, in

 business of the nature, customers to a larger extent, would

 be people maintaining acquaintance with the shop owner.

 Chances are rare for strangers or passersby to visit the

 shop for buying mobile or its accessories.

51. Therefore, the tenant has thoroughly failed to establish

 that the parking facility available there originally was

 taken away on account of the construction work of Metro

 Rail and the North Overbridge. One important aspect to

 be noted at this juncture is that with all these limitations

 projected in the form of contentions that the tenant is

 sticking on to the tenanted premises and conducting the

 business for approximately about 36 years.

52.According to the landlord, the tenanted premises was let

R.C.R.Nos.297 & 316/2014
                            -:51:-




out to the tenant in the year 1984 for a rent of Rs.500/-

and it was enhanced to Rs.1,500/- in the year 2006. The

rent has remained static since then and in the

circumstances, it was sought to be enhanced by the

landlord by preferring R.C.P No.82/2012.         The Rent

Control Petition in question was filed by the landlord

claiming enhancement of rent after a time span of 7 years.

The evidence makes it clear that the tenanted premises

was let out in the year 1984 and it is part of a larger

building namely 'Dr. Kartha Complex', which admittedly

was constructed during the period 1978-1979.            The

building therefore, is approximately 34 - 35 years old and

admittedly,    even    according   to   the  landlord    no

improvements have been effected by him eversince.

Though the tenant claims to have effected improvements

to add facilities to the building, evidence to that effect is

R.C.R.Nos.297 & 316/2014
                            -:52:-




not forthcoming except Ext.C1 wherein the 'tiled' nature

of the floor has been reported. But, whether it was there

originally or else, it was fixed later cannot be ascertained

from the evidence now on record. No evidence has also

been let in to show that the ongoing construction of Metro

Rail and the North Overbridge has impacted in reducing

the locational and commercial importance of the tenanted

premises. Though the testimony of P.W.2 and Ext.X1

series show that a room near to the tenanted premises and

located in the very same larger building of which the

tenanted premises is a part, fetches, monthly rent of

Rs.12,000/- and Ext.C1       shows that another tenanted

premises situated adjacent to the one on hand fetches

Rs.20,000/- as monthly rent, no materials are forthcoming

to establish the common amenities or facilities available

to the said two premises to consider identical rent. The

 R.C.R.Nos.297 & 316/2014
                             -:53:-




 Advocate Commissioner has also omitted to take note of

 those aspects in Ext.C1.

53.A prudent man cannot lose sight of the improvements

 that have taken place during the years till date. The Rent

 Control Court has adverted to all the factors relied upon

 by the landlord and to which its attention was drawn and

 granted enhancement to the tune of Rs.55 per Sq.ft.

 against the landlord's claim of Rs.72 per Sq.ft. by its order

 dated 21.12.2013.

54.The question that is now left for our consideration is

 whether the finding of the Appellate Authority fixing the

 fair rent of the building in question at Rs.11,250/-

 (45 x 215) per mensom calculating the same at Rs.45 per

 Sq.ft is sustainable.

55.We would notice an observation by the Rent Control

 Appellate Authority in its judgment that evidence of other

R.C.R.Nos.297 & 316/2014
                                  -:54:-




tenants of the premises near and adjacent to the tenanted

premises in question has not been brought in by the

landlord in question and that is fatal. The relevant portion

is contained in paragraph 16 of the judgment and is

quoted hereunder for reference:

     "The evidence let in by the respondent is the oral

     testimonies of himself and P.W.2 and Ext.X1 series. So

     many other tenanted premises are there nearby. No

     such person has been examined.            As pointed out

     above, evidence of P.W.2 and Ext.X1 series cannot be

     the sole criteria to fix fair rent of the petition schedule

     building. From the available evidence a meticulous

     calculation of the fair rent of the petition schedule

     building, is not possible. On taking into account the

     factors, such as locational importance of the petition

     schedule building, possible commercial viability of the

     building, inflation and resultant reduction in the

     purchasing power of money, variation in the cost of

     living index in the area after commencement of the

     lease and the like factors, I am of the view that the

     rent fixed by the trial court is somewhat high. It is

     also relevant in this context that the present rent is

     Rs.1,500/- and there must be some relativity to the

 R.C.R.Nos.297 & 316/2014
                                     -:55:-




         present rent while fixing the fair rent. Accordingly, I

         hold that the fair rent of the petition schedule building

         shall be Rs.45/- per sq.ft.     The point is answered

         accordingly."


56.It is true while fixing the fair rent of Rs.55/- per sq.ft. the

 Rent Control Court was carried away by a misconception

 of the oral evidence let in by P.W.1, P.W.2 and Ext.C1, the

 commission report on certain aspects. The said authority

 has also failed to notice while relying upon Ext.X1 series

 that materials to have a comparative study of the nature

 and amenities attached to the tenanted premises in

 question and that let out to P.W.2, are clearly lacking.

57.It is true, the tenants of adjacent tenanted premises,

 though so many are situated around, were not examined.

 But, the tenant of the premises situated in the immediate

 proximity and part of the very same larger building of

 which the tenanted premises in question is also a part was

 R.C.R.Nos.297 & 316/2014
                                -:56:-




 examined and in view of the dictum in Midland Traders

 (M/s.) and others v Miriam Elias and others (2010 (3)

 KHC 778) placed for reliance before us, it is the apt and

 appropriate evidence for the authority to be relied upon.

 The dictum in the decision cited supra is, therefore,

 quoted for reference:



          "Evidence regarding the rent fetched by the upper

          floors of the very same building will have more

          relevance in fixing fair rent."


58.Viewed in the context, the room tenanted to P.W.2, of

 which Ext.X1 series are related to is the third room from

 the tenanted premises in question and is situated in the

 same larger building, 'Dr.Kartha Complex'. There is

 nothing wrong in relying upon Ext.X1 series of rental

 receipts pertaining to that tenanted premises as one of the

 parameters in the matter of fixation of fair rent for the

R.C.R.Nos.297 & 316/2014
                           -:57:-




tenanted premises in question. The Rent Control Court,

Ernakulam has also acted accordingly. The Rent Control

Appellate Authority's view that rather than the materials

relating to a room adjacent to the tenanted premises in the

same larger area, that of a tenanted premises of an

adjacent building would be more appropriate to be

considered is incorrect in view of Midland's case. In our

view, both the authorities below have failed to note that

evidence was not before them to have a comparative

study of the tenanted premises in the case in question and

that let out to P.W.2. The oral evidence of P.W.2 only

show that the premises was let out to him in the year

2011. No evidence has been let in to convince us of the

facilities and amenities available to the premises let out to

P.W.2. The question mooted now is whether in the

absence of evidence as to the common features available


to the adjacent rooms, could that be basis for fixing rent

in respect of the tenanted premises in question which

admittedly of the landlord, has never been modified or

renovated ever since it's letting out.   In the absence of

materials to show identical features and amenities

available for the tenanted premises, in our view the rent

of adjacent rooms of the same building or rooms of

adjacent building cannot be relied upon by the authorities

as was done in this case. Materials should be available

before the court to have a comparative study of the nature

and the facilities associated with the tenanted premises of

which fair rent is sought to be fixed and the tenanted

room situated adjacent, the rent of which is sought to be

relied upon as basis. In the absence of materials of the

nature available, it is improper for the Court exercising

the authority of fixation of fair rent to act upon as was



 done by the authorities below in the case in question. It is

 the duty of the landlord to establish those aspects while

 relying upon rental arrangements in respect of adjacent

 rooms of the same building or rooms of adjacent building.

59.Evidence available on record indicate that the larger

 building of which the tenanted premises is a part is

 situated in an important area. A prudent man could only

 view the ongoing construction of Metro Rail and

 Overbridge as ascending steps towards progress and

 developments. In view of the above discussion, what

 could be gathered was that without appreciating some

 relevant pieces of evidence and ignoring certain other

 pieces of evidence on record that the Appellate Authority

 has arrived at the fair rent for the tenanted premises.

 Therefore, on a balancing of the evidence on record, the

 fixing of fair rent as Rs.55/- by the Rent Control Court in



 R.C.P No.82/2012 is proper and the reduction of the fair

 rent to Rs.45/- by the Rent Control Appellate Authority,

 Ernakulam in R.C.A No.15/2014 appears to us to be the

 outcome of an improper appreciation of the available

 evidence. Therefore, we feel it appropriate to set aside

 the judgment of the Rent Control Appellate Authority in

 R.C.A No.15/2014.        In the set of evidence of which

 elaborate discussion is already had, it would be

 appropriate to enhance the rate of rent from Rs.45/- per

 Sq. ft. The learned counsel for the landlord has also

 canvassed at length during the course of his argument to

 maintain Rs.55/- per Sq.ft. the rent fixed by the Rent

 Control Court, Ernakulam. In the light of the lengthy

 discussion we had, we also find it appropriate to fix

 Rs.55/- as the fair rent of the tenanted premises.

60.In view of the progress likely to accrue to the business in


the locality on account of the construction of the Metro

Rail and the tremendous developments in Kochi City

taking place day to day, a quinquennial enhancement of

rent at the rate of 15% is also reasonable and accordingly

we fix so.

In the result,

     1)    R.C.R No.316/2014 is dismissed and

           R.C.R No.297/2014 is allowed.


     2)    The     impugned       judgment   dated

           14/8/2014 of Rent Control Appellate

           Authority in R.C.A No.15/2014 is set

           aside.


     3)    The rate of rent of the tenanted

           premises is fixed at Rs.55/- per Sq.ft.

           with effect from the date of R.C.P

           dated 23/12/2012 thereby the monthly

           rent   payable    is    enhanced  from



           Rs.1500/- to Rs.13000/- with 15%

           quinquennial enhancement.


      4)   The tenant is directed to pay the entire

           arrears of rent till date at the monthly

           rate fixed herein within one month

           from the date of this order and shall

           continue to pay the same each month

           without failure.




      5)   It is open to the landlord to resort to

           execution proceedings to get the rent at

           the re-fixed rate realized in the event of

           the tenant's default to pay the same.




                             K. Surendra Mohan, Judge.




                                 Mary Joseph,Judge.
sl.



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