M/S. Tirumala Estates vs S. Vijayashree

This revision petition is filed by M/s.Tirumala Estates represented by its Managing Partner Mr.T.Madan Mohan against S.Vijayashree and S.Sai Geeta, represented by her power of Attorney S.Jayalakshmi, W/o. Late N.S.Sundra Murthy, against the judgment dated 22.03.2021 passed in R.C.A.No.118 of 2019 on the file of the learned Chief Judge, City Small Causes Court, Hyderabad, whereby the order dated 24.07.2019 passed in R.C.No.71 of 2015 on the file of the learned IV Additional Rent Controller, City Small Causes Court, Hyderabad, was set aside and the matter was remanded back to the trial Court for considering the issue of fixing fair rent in accordance with law.

For the sake of convenience, the parties hereinafter are referred to as landladies and tenant. The petitioner herein is the tenant and the respondents herein are the landladies.

Learned counsel for the tenant would contend that the landladies herein have jointly instituted fixation of fair rent application in R.C.No.71 of 2015 from Rs.1,800/- to Rs.27,120/- with an escalation of 20% for every two years. The said application is filed in respect of Premises No.34-B, First Floor, Raghava Ratna Towers, Chirag Ali Lane, Hyderabad. The tenant would further contend that there is no jural relationship between the parties and they are residing Premises No.35, First Floor, Raghavaratna Towers, Chirag Ali Lane, Hyderabad. The trial Court dismissed the application by observing that the petitioner herein is a tenant of Premises No.35 but not in respect of Premises No.34-B and there is no jural relationship between the parties. Aggrieved by the same, the landladies filed an appeal viz., R.C.A.No.118 of 2019 before the learned Chief Judge, City Small Causes Court, Hyderabad, and the Appellate Court allowed the appeal and remanded the matter to the trial Court for fixation of the rent of the property. Learned counsel would also assert that the area of property is 250 square feet but not 339 square feet and that there is a lease agreement dated 26.04.2007 and the tenant paid Rs.12,000/- towards interest fee deposit, but it was suppressed by the landladies. He would also state that the premises is in a dilapidated condition, which was constructed about fifty years back and the tenant incurred Rs.2,50,000/- for renovating the same and he has been maintaining the property at his cost. The premises is located in a lane but not in Abids and the entire market of the Abids was shifted to different places. Learned counsel would mainly dispute the GPAs executed by the landladies in favour of their mother under Ex.P1. He would also submit that the trial Court under mistaken impression held that the sale deed shows an area of the property is 339 square feet which is inclusive of common area though the carpet area of the premises is only 250 square feet. He would also contend that the appellate Court is not empowered to remand the matter for fixing the fair rent as per Section 20(3) read with Section 121(2) of Rent Control Act, and thus, the judgment is liable to be set aside.

R.C.No.71 of 2015 is filed by the daughters of Mr.N.S.Sundara Murthy against Tirumala Estates for fixing the rent from Rs.1,800/- to Rs.27,120/- per month and also progressive enhancement of 20% for every two years on the existing rent. The landladies would assert that the petition schedule property is part and parcel of office bearing No.34-B, I Floor, admeasuring 339 square feet situated at Raghava Ratna Towers, Chirag Ali Lane, Hyderabad. The landladies stated that the petitioner is a tenant in the premises bearing No.35, First Floor, Raghava Ratna Towers, Chirag Ali Lane, Hyderabad. He filed suit in O.S.No.919 of 2014 seeking for permanent injunction against the landladies and that they are also contesting the same. There is jural relationship between them as landlord and tenant and the said Court has no jurisdiction.

The landladies were examined as P.Ws.1 and 2 and marked Exs.P1 to P3 on their behalf. There is no oral evidence adduced on behalf of the tenant. However, during the cross-examination of P.Ws.1 and 2, Exs.R1 to R5 were marked.

The trial Court after considering the arguments of the landladies regarding variation in the premises bearing No.34-B and Premises bearing No.35 held that there is no jural relationship between the parties. In a sale deed filed by the landladies under Ex.P3 the premises bearing number was shown as 34-B with a built up area of 339 square feet but in the lease deed entered into between the parties it was mentioned as premises bearing No.35, First Floor, Raghava Ratna Towers. As such, taking advantage of the same, the tenant filed O.S.No.919 of 2014 by mentioning the premises bearing No.35 and also filed Ex.R4 telephone bills and account summary in which the said premises number was reflected. As the trial Court held that there is no jural relationship, the fair rent was not fixed and petition was dismissed. Aggrieved by the same, an appeal was preferred by the landladies before the learned Chief Judge in R.C.A.No.118 of 2019. The appellate Court considered the variation between the sale deed and lease deed and mischief of the tenant showing the premises No.35 instead of 34-B discussed all the facts and held that landladies are having only one premises and as such it cannot be said that they let out another premises to the tenant. Moreover, admittedly the tenant was depositing the amounts in the account of the landladies, and as such, there is no dispute regarding identity of the property and the trial Court erroneously held that there is no jural relationship between the parties and accordingly allowed the appeal to that extent. In so far as the extent of the leased premises raised by the tenant stating that he is in occupation of 250 square feet but not in an extent of 339 square feet, it was held that as per the sale deed the extent was 339 square feet and the entire premises was let out to him and he was using only 250 square feet and as such he cannot raise dispute regarding the extent of the premises. It was also held that when the boundaries of the office premises bearing No.34-B admeasuring 339 square feet was also extracted from the sale deed and they are in consonance with the boundaries mentioned in O.S.No.91`9 of 2014. It was also observed that the lease agreement Ex.R1 does not contain boundaries of the property. Moreover, the sale deed prevails over the lease deed. Ex.P3 is the certified copy of sale deed dated 01.03.1995 vide document No.843 of 1995. It is an authenticated document to prove the ownership of the landladies over the petition schedule premises and it has greater evidential value than the lease deed. The lease deed dated 26.04.2007 in which no schedule was mentioned was expired in the year 2010 and it cannot carry much evidentiary value to prove the identity of the premises. It was also observed that any landlord cannot file any rent control case against the tenant for wrong premises when such an exercise would not achieve any purpose. Only basing on the error mentioned in the lease agreement as premises 35, the tenant taken advantage and also filed civil suit in O.S.No.919 of 2014 as a counterblast to the rent control case and he was regularly paying Rs.1,800/- per month. The lease agreement is renewable after three years and it was continued up to 2010 and as such set aside the order of the Rent Controller passed in R.C.No.71 of 2015 dated 24.07.2019 and remanded the matter for fixing a fair rent in accordance with law.

Learned counsel for the tenant relied upon several citations and argued that the appellate Court has no power to remand the matter. He relied upon a case law reported in KONDURU AMMANNACHARI V/s. RAHIMA KHATOON MANU/AP/0344/1984 in which it was held as follows:

‘17. A reading of this provision makes it clear that the appellate authority should dispose of the appeal after hearing both the parties. If the appellate authority feels it necessary that further enquiry is necessary, the appellate authority itself should hold enquiry after giving an opportunity to both the parties or direct the rent controller to do the same. The appellate authority should dispose of the appeal on the basis of its own enquiry, if it holds enquiry by itself or on the basis of the findings given by the Rent controller if it direct the Rent Controller to held enquiry. Thus it is clear that Section 20(3) of the Act does not contemplate for remand. On the other hand, Section 20(3) of the Act requires the Appellate Authority to follow the two courses viz. (1) the appellate authority should hold further enquiry, if it (feels necessary or (2) the appellate authority should direct the rent controller o hold enquiry and submit his findings on the point or points and there after the appellate authority should dispose of the appeal. As to which course the appellate authority should follow between the two courses provided in Section 20(3) of the Act, it is entirely left to the discretion of the appellate authority and Section 20(C) of the Act does not fetter the discretion of the appellate authority in any way. If further evidence is not necessary and the evidence is already available on record and it is sufficient to dispose of the points involved in the appeal, the appellate authority can itself dispose of the appeal. In as much as the Appellate Authority has to order further enquiry, which is either to be done personally or through the Rent controlley it is implicit that the appeal should be kept pending all the time before the appellate authority. As the language of Sec. 20(3) of the Act is unambiguous, any order of remand passed by the appellate authority is contrary to Sec. 20(3) of the Act and is, therefore, illegal.’.

Learned counsel further submitted that the order of appellate Court remanding the case to the Rent Controller is not a nullity but the order passed is in an irregular exercise of the power and the parties are at liberty to file revision against such order of remand. For the said proposition learned counsel relied upon a case law reported in MOHD. OSMAN V/s. D.SHAKUNTALA BAIDIED MANU/TL/0425/2019 in which it was held as follows:

‘... the provision for periodical enhancement of rent at 10% for every two years on the existing rent from the date of filing of the R.C. granted by the appellate authority is not proper since any enhancement can be directed under Section 5 of the Act only if there is any addition, improvement or alteration carried out at the instance of the respondents at the request of the petitioner..’

Learned counsel also relied upon a case law reported in OMPRAKASH MALATKAR V/s. KISHAN BAI PORWAL MANU/TL/0583/2021 in which it was held as follows:

’19. ...The periodical enhancement cannot be a guessing work unless there is concrete evidence to that effect. Situation would have been different if the landlady was able to adduce any evidence to prove periodical enhancement in the vicinity. There was no evidence, as pointed above, to prove the prevailing rent of the similarly situated shops. On the basis of the commercial lease, the learned Rent Controller fixed the rent at Rs.5,000/-per month but periodical enhancement is altogether a different aspect and factors for such periodical enhancement differ from place to place and also depend on the nature of business carried on in the tenanted property.’

Learned counsel for the landladies relied upon a case law reported in SHAIK BANDAGI SAHEB V/s. SHAIK NURULLA SAHEB MANU/AP/0657/1997 holding to the following effect:

‘Sub-Section (3) of Section 20 of the Act is relevant for the purpose. The language of Sub-section (3) is quite clear, precise, unambiguous and it does not admit more than one meaning. The Appellate Authority is armed with the power to inquire as he thinks fit either personally or through the Rent Controller if the facts and circumstances of a case warrant him to do so in his discretion. From the provisions of Sub-Section (3) it cannot be deduced that the power of the Appellate Authority to remand the proceedings to the Rent Controller is ousted.’

The powers of the Appellate Court under Section 20(3) of the Rent Control Act are akin to the powers of the Appellate Court under Section 107 CPC, which reads as follows:

‘Powers of Appellate Court: - (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power –

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.’

In the facts on hand, the trial Court held that there is no jural relationship between the parties and accordingly dismissed the application and as such the landladies preferred an appeal and the Appellate Court after considering various aspects, allowed the appeal, but for fixing the fair rent remanded the matter to the trial Court. For fixing the fair rent the trial Court should consider the market value of the building on the date of letting the premises, prevailing rentals in the locality as on the date of letting, age of construction, latest assessment of the building or other circumstances and as such, the Appellate Court rightly remanded the matter to the trial Court for considering the above aspects and fixing the fair rent by duly giving opportunity to both the parties to adduce evidence. Therefore, the contention of the tenant that the order of the Appellate Court in remanding the matter is illegal is not tenable.

On the above analysis, this Court finds that there are no merits in the revision and the same is liable to be dismissed. Accordingly the Civil Revision Petition is dismissed confirming the order under challenge.

Miscellaneous Petitions, if any, pending in this appeal shall also dismissed in the light of this final order.