MIDLAND TRADERS Vs. MIRIAM ELIAS

JUDGEMENT

(1.) Under challenge in these revisions filed by the tenant/a partnership firm under Section 20 of Act 2 of 1965 is the common judgment delivered by the Rent Control Appellate Authority in an appeal which was filed by the tenant and memorandum of cross objections filed by the landlord against an order of the Rent Control Court fixing fair rent for the building under Section 5 of Act 2 of 1965. The building is situated evidently in a commercially very important locality in Cochin city admittedly near to the Kerala High Court and the prestigious Cochin Marine Drive. The building abuts the Banerjee Road as well as the market road. The building is a portion of the ground floor of a four storied commercial complex by name "Elias Chambers". Portions of the upper stories of the above commercial complex are occupied by various other tenants including the Life Insurance Corporation of India and South Indian Bank Ltd. The revision petitioners who are doing business in the petition schedule premises in the ground floor of the building took the building on lease in 1981 on a monthly rental of Rs. 1,000/-. The original landlords initiated the proceedings in the year 2001 by instituting a suit for fixation of fair rent before the Munsiff's Court and the suit was decreed. The judgment of this Court in George v. State of Kerala, 2000 (2) KLT 933 was relied on by the tenants. The suit was tried by the learned Munsiff and at trial the evidence consisted of Exts.A1 and A2, B1 to B4, C1 commission report, Exts.X1 to X4 produced by witnesses, oral evidence of witnesses PWs.l to 3 on the side of the plaintiff/landlord and the oral evidence of DW1 on behalf of the tenant/defendant. It came on record from the evidence of PW2/a senior officer of the South Indian Bank, tenant in occupation of the first floor and that of PW3/a senior officer of LIC, tenant in occupation of second and third floor that LIC was paying rent at the rate of 11.70 sq. ft. even for the third floor premises and that the South Indian Bank is paying rent at the rate of 10.50 sq. ft. for the first floor premises occupied by them in Elias Chambers itself. The learned Munsiff on evaluating the evidence came to the conclusion that "present rate of rent available in the locality is between 10.50 and 11.70 sq. ft". After concluding so the learned Munsiff would fix the fair rent for the building in question at Rs. 12 per sq. ft. and the rent for the entire premises at Rs. 3,840/-per mensem.

(2.) The tenant preferred appeal to the District Court as AS. No. 364 of 2003 against the judgment and decree passed by the Munsiff's Court which was transferred by the District Court to the Rent Control Appellate Authority on the basis of the judgment of this Court in Edger Ferus v. Abraham Ittycheria , 2004 (1) KLT 767. Upon transfer, the Appellate Authority renumbered the appeal as R.C.A. No. 76 of 2005. In that appeal the landlord submitted a memorandum of cross objection contending that the fair rent should have been fixed at the rate of Rs. 25/- to Rs. 30/- per sq. ft. The Rent Control Appellate Authority under the impugned judgment dismissed the appeal preferred by the tenant and upheld the memorandum of cross objections and fixed the fair rent of the building at the rate of Rs. 8000/- per mensem (Rs.25/- per sq. ft.) with effect from the date of institution of the suit.

(3.) In the separate revision filed by the tenant against the decision on his appeal and the landlord's memorandum of cross objections the tenant urges that the parameters fixed by this Court by judgment in Aboobacker v. Vasu , 2003 (3) KLT 1029 on the basis of the judgment in Issac Ninan v. State of Kerala, 1995 (2) KLT 848 are unreasonable and opposed to public policy. It is urged that the judgment of this Court in Issac Ninan v. State of Kerala, 1995 (2) KLT 848 so far as it relates to Sections 5(2) and 8(1) of Act 2 of 1965 has been rendered per incuriam as a binding judgment rendered by a Full Bench reported in Kunhammad Keyi v. Premalatha, 1962 KLT 366 (F.B.) was ignored by this Court. It is submitted that the Division Benches which decided, 2000 (2) KLT 933 and , 2003 (3) KLT 1029 (Aboobacker v. Vasu) fell into error as the Benches were under the compulsion of conviction that, 1962 KLT 366 (F.B.) (Kunhammad Keyi v. Premalatha) no longer held the field in view of, 1995 (2) KLT 848 (Issac Ninan v. State of Kerala). It is also urged that this Court while restoring Section 5(1) to the statute by judgment in Edger Ferus v. Abraham Ittycheria , (2004 (1) KLT 767) had adopted the parameters/norms prescribed by the judgments in, 2000 (2) KLT 933 and, 2003 (3) KLT 1029 as these parameters are illegal being opposed to Sub-section (2) of Section 5 of the Act which were approved by the Full Bench in, 1962 KLT 366.