Madras High Court
Dena Bank vs Mrs.P.Indira Prasad on 12 June, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:12.06.2012 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH C.R.P.NPD. No.1023 of 2010 Dena Bank, Aminjikarai Branch, Rep. by its Senior Manager, No.703, P.H.Road, Chennai 600 029. .. Petitioner Versus Mrs.P.Indira Prasad ... Respondent Prayer: This Civil Revision Petition has been filed under Article 227 of Constitution of India to set aside the judgment and decree in R.C.A.No.586 of 2008 dated 14.08.2009 by the Hon'ble VII Judge, Small Causes Court, Chennai and the Judgment and decree passed by the Trial Court made in R.C.O.P.No.276 of 2007 dated 10.03.2008 on the file of the XIII Judge, Small Causes Court, Chennai and dismiss the R.C.O.P.No.276 of 2007 dated 10.03.2008 on the file of the XIII Judge, Small Causes Court, Chennai and dismiss the R.C.O.P. Referred above. For Petitioner : Mr.G.R.Lakshmanan For Respondent : Mr.A.Venkatesan O R D E R
This revision is directed against the judgment and decree passed by the Rent Control Appellate Authority in RCA.No.586 of 2008 dated 14.09.2009 of modifying the orders passed by the Rent Controller made in RCOP.No.276 of 2007 dated 10.03.2008 in fixing the fair rent under Section 4 of the Tamil Nadu Buildings Lease and Rent Control Act.
2. The appellant was the respondent/tenant and the respondent herein was the petitioner / landlord before the learned Rent Controller.
3. The case of the petitioner / landlord, before the learned Rent Controller as stated in the petition would be as follows:
The learned counsel for the petitioner would submit that the respondent is in occupation of the ground floor in old block measuring about 2699 sq.ft and in new block about 1608 sq.ft and 347 sq.ft belonging to the petitioner. All the basic and Schedule -1 amenities are available. The building is a Type-1 building. Extent of land area is 2699/2 + 1608 + 1320 = 4277.5 sq.ft. The petition premises commands all locational advantages. Therefore, the value of site is Rs.75 lakhs. Hence, this petition for fixation of fair rent at Rs.1,58,590/- pm.
4. The objection raised by the respondent / tenant before the learned Rent Controller would be as follows:
The learned counsel for the respondent submitted that there was a lease agreement between petitioner and the respondent for a period of 10 years and it expired on 01.01.2006. In the lease agreement there was a renewal clause by increasing 25% rent for every 5 years and as per the term the agreed rent was only Rs.48,210/- pm from 1.1.2006 for a period of 5 years and with a further increase of 25% on the existing rent after the expiry of 5 years period is the fair and reasonable rent for the premises in occupation of the respondent. The landlord also agreed to renew the lease.
5. The learned Rent Controller conducted the enquiry by examining witnesses on either side and had appraised the evidence and had come to the conclusion of fixing the monthly fair rent for the demised premises at Rs.1,68,851/- from 01.02.2007, i.e., the date of filing of the petition.
6. Aggrieved by the said order passed by the learned Rent Controller, the respondent/tenant preferred an appeal before the learned Rent Control Appellate Authority in RCA.No.586 of 2008 questioning the quantum of fair rent fixed by the learned Rent Controller. The learned Rent Control Appellate Authority heard the arguments of both sides and had come to the conclusion of modifying the fair rent fixed by the learned Rent Controller and reduced the same to Rs.1,50,174/- p.m. payable from the date of filing of Rent Control Original Petition.
7. The aggrieved respondent/tenant has challenged the decision reached by the learned Rent Control Appellate Authority before this Court by filing this revision petition.
8. Heard Mr.G.R.Lakshmanan, the learned counsel for the revision petitioner and Mr.A.Venkatesan, the learned counsel for the respondent/landlord.
9. The learned counsel for the revision petitioner / tenant would submit in his argument that both the courts below did not consider the scope of the case under which the increase of the rent was sought for. He would further submit in his argument that no notice was issued by the landlord before filing the Rent Control Original Petition for the increase of rent and therefore the claim under Section 4 of the Act is not maintainable. He would further submit in his argument that the age of the building would be 70 years. The learned Rent Controller has taken it as 60 years even though the landlady did not produce any plan or sanction for putting up construction in respect of the demised building. He would further submit that the evidence given by the engineer, as RW2 in this regard could have been accepted by the Rent Controller.
10. He would also submit that the tenant is not in enjoyment of Schedule-I amenities. But, however it was calculated for that amenities also in the said calculation. He would further submit in his argument that the lease agreement entered into between parties was not properly considered by the courts below and if it is done, there would be no question of fixing of any fair rent. He would further submit that there was no basic amenities or Schedule-I amenities, inspite of which it has been calculated so for fixing the fair rent and it is not sustainable. He would further submit in his argument that the depreciation should have been calculated more than 1% for the building aged more than 60 years and the same was also not considered by the lower court. He would further submit that the landlady had asked for increase of the rent as per the lease deed and the same was accepted by the tenant. But, however the landlord has filed the fair rent petition which is against the principles of law and natural justice. The landlady has accepted for the increase of rent for a specific sum and it cannot be decided by the landlady and in the said circumstances, the petition for fixation of fair rent is not maintainable. He would also submit that the lease deed entered into between parties on 08.05.1998, was consisting of an area of 3,630 sq.ft. including all the amenities. But, however it has been filed in the petition for a site area of 4277.5 sq.f which was not explained. He would further submit that the landlady is not entitled to ask for fixation of fair rent not more than 3630 sq.f. He would also submit that the agreed rent was only Rs.48,210/- pm from 01.01.2006 for a period of 5 years and after the expiry of 5 years, 25% on the existing rent should have been increased for the said premises and the fixation of fair rent through Court is not possible when there is an agreed contract prevailed in between the parties.
11. He would also submit that even otherwise the fair rent fixed by the Rent Controller at Rs.1,68,000/- p.m. cannot be sustainable because it was solely relied upon the engineer's evidence examined as P.W.2 without any appreciation of evidence. He would also submit that the reduction of quantum of fair rent by the appellate court was also only on the basis of P.W.2's evidence and there was no reason put forth by the courts below as to why the evidence of R.W.2 was not relied upon. The other evidence produced by the tenant was also not relied upon. He would further submit in his argument that the valuation of the vacant site was relied upon by the courts below on the basis of the documents produced in Ex.P10 and Ex.P12 and the document produced by the respondent as Ex.R3 even though subsequent to the filing of the Rent Control Original Petition was not considered. He would further submit that the only reason for not relying upon the said document in Ex.R3 was that it was subsequent to the filing of petition and the property comprised in Ex.R3 was located interior to the Poonamallee High Road. He would further submit in his argument that the learned Rent Controller had relied upon Ex.P12 and had added 20% premium to swell the value of the property and the learned Rent Control Appellate Authority had come to the conclusion reducing it to 15% per year and also applied the guideline value of Rs.99,86,000/- as admitted by R.W.2 and however, the reliance placed over the guideline value is not sustainable in view of the judgment of the Honourable Apex Court reported in (1994) 4 SCC 595 (Jawajee Nagnatham Vs. Revenue Divisional Officer, Adilabad, A.P. and others).
12. He would further submit in his argument that when there is a sale deed in Ex.R3 available for the same year which was few months subsequent to the filing of petition, there is no need for calculating the value with the help of Ex.P10 or Ex.P12, the earlier documents for their value premiums are to be added for the later years. He would further submit that if the value of the vacant site is taken and fair rent is calculated, on the basis of Ex.R3, it would be only a sum of Rs.48,210/-p.m. He would further submit that even though PW1 had admitted that the cost of construction was only Rs.50/-per sq.f., the higher PWD rate was considered for assessing the cost of construction which would not be sustainable. He would also cite a judgment of this Court reported in 1996 (1) CTC 567 (M/s. Maya Appliances and Control Equipment rep. by its partner Thiru Varadarajan and another) in support of his argument. He would also submit that the decision reached by the courts below was purely on the admission of R.W.2 that the guideline value for one ground was more than Rs.99,86,000/- per ground and the same cannot be correct because the guideline value as per in Ex.R2 was at Rs.93/- lakhs for 5,600sq.f and therefore, the oral evidence adduced by RW2 could be distinguised by the documentary evidence, Ex.R2. Therefore, such admission or evidence of R.W.2 was wrong and unnecessary. He would cite a judgment of Honourable Apex Court reported in (2004) 2 SCC 283 (Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun Through his Secretary Vs. Bipin Kumar and another) for the principle that Section 92 of the Evidence Act, precludes a party from giving evidence contrary to the contents of a written document.
13. He would further submit that the fixation of fair rent has to be done under Section 4 of the Act and at the same time, the provisions of the act should be applied for benefit of both the parties and the rent fixed should be fair for both the landlord and tenant. He would cite a judgment of the Honourable Apex Court reported in (1974) 1 SCC 424 (M/s. Raval and Co., Vs. K.G.Ramachandran and others) for the said proposition of law. He would further submit in his argument that the plinth area of the building and the vacant site, of the demised building were not adduced in evidence by the landlady, by producing the plan of the building and therefore, the evidence adduced by P.W.2, the engineer would not depict the correct value of the property. R.W.2, the engineer examined by respondent has filed the report after measuring the property and it should have been accepted and the fair rent ought to have been fixed as per the report of RW2. He would also submit that the evidence of P.W.2, the engineer examined by the landlady did not measure the property and the analysis report filed by PW2 would not depict the correct value of the property. He would further submit that the extent of the property comprised in Ex.P12, the sale deed produced for valuation was very small and it cannot be applied for valuing the demised property even with the calculation of premium. He would also submit in his argument that there was an agreement entered in between the parties for payment of ascertained rent for 10 years and the said offer put forth by the landlady was accepted by the tenant and therefore, the contract emerged in between parties should be respected by the courts and there is no need for fixation of any fair rent in this case. He would also submit that however, the fair rent fixed by the Rent Controller as well as Rent Control Appellate Authority are totally disproportionate to the rent agreed in between parties.
14. He would also submit that the evidence of P.W.2 would not be reliable and the decision reached by the court below on the basis of P.W.2's evidence has to be interfered and set aside, and therefore, the fixation of fair rent by the courts below may be set aside and the petition for fixation of fair rent by the courts below may be dismissed by allowing the above revision in favour of the revision petitioner.
15. The learned landlord respondent/landlady would submit in his argument that the revision petitioner/tenant has come forward with a new plea that petition was not sustainable as there was an agreement reached in between parties towards enhancement of rent in the revision stage. He would also submit that such an argument in the revision stage would not be sustainable. He would also submit that even though there is an agreement in between parties for paying a contractual rent, the petitioner/landlady can apply for fixation of fair rent when the agreed rent was not fair enough to the demised building. He would also submit that the contractual agreement for payment of rent if not found to be the fair rent, the authorities namely Rent Controller can fix the fair rent payable to the demised building on the petition filed by the landlord. If the agreed rent payable to the demised building is excess or too high, the tenant can apply for fixing the fair rent to the demised building by stating that the agreed rent was excess and the object of Section 4 of the Act was to fix a fair rent for the demised premises by adopting the procedure contemplated therein.
16. He would further submit that the tenant should have raised the maintainability of the application before the lower court and he cannot put forth the said plea surprisingly before this Court. He would cite a judgment of this court reported in 2009 (1) CTC 779 (Dhanasekaran Vs. The A.R.C. School Board, rep. by its Secretary, V.Balu, 26, Saiva Muthiah Mudali Street, Muthialpet, Chennai-600 001) in support of his arguments.
17. He would also submit that any such argument advanced before this court was certainly beyond the pleadings raised before the courts below and such case shall not be raised or argued in the revision stage. He would also cited a judgment of Honourable Apex Court reported in (2000) II MLJ 39(SC) Union of India Vs. E.I.D. Parry (India) Ltd.,in support of his argument.
18. He would also submit that the tenant who did not choose to dispute the correctness of the particulars given by P.W.2 in his report, Ex.P8 cannot now come forward to agitate against the concurrent findings given by the courts below. He would further submit that the findings reached by the courts below are concurrent in nature and unless there is perversity or illegality in the said findings, this court need not interfere with such findings in this revision.
19. He would further submit that the entire demised building is consisting of the front and the rear blocks, the front block was recently put up and the rear block was an old one and the answer given by P.W.2 that he has seen sanctioned the plan of the building in the front block would not in any way support the arguments of the other side, that the plan for the entire property was kept by the landlady and it was not produced wantonly by the landlady, would not improve the case of the tenant. He would further submit that nothing was put in the cross-examination, when P.W.1 was in the box regarding the plan. Therefore, the evidence of P.W.2 regarding the plan of the new block would not in any way help the tenant to seek for taking adverse inference, for not producing the plans . He would further submit that P.W.2 had inspected the property and had measured and taken all measurements and therefore, the report in Ex.P9 cannot be disputed. He would further submit that the engineer of the tenant who was examined as RW2 has produced his report as Ex.R2 where no such plan has been appended in order to help the court to arrive at a correct conclusion. He would therefore submit that the evidence of P.W.2 was accepted by the courts below and the calculations were made with the help of evidence of P.W.2 for fixing the fair rent. He would further submit that the basic amenities at 15% as stated in the petition was not contraverted in the counter. However, RW2 had given the basic amenities at 10% for the old building and 5% for new building to which both the courts held that it was 15% on the basis of the evidence produced by the landlady through PW2. He would further submit that the tenant had not disputed those facts in his counter and therefore the concurrent finding of the courts below need not be interfered in that aspect. Further more, he would submit in his argument that the Schedule-I amenities which were mentioned in the petition was also not denied in the counter and RW2 had spoken for 1% towards Schedule-I amenities and on consideration of the evidence of PW2, the learned Rent Controller has fixed at 9% and the Rent Control Appellate Authority had modified it at 7%. He would also submit that the finding of the quantum of Schedule-I amenities cannot be disputed by the tenant since he had not disputed the same in his counter. He would also submit that the plinth area was there both in the rear block as well as in front block. He would also submit that the plinth area of the demised premises as mentioned in the petition is 4654.9 and this was also spoken by PW2 in his evidence. RW2 had spoken that the plinth area was only 3975.25 sq.f and even though there was no denial in the counter regarding plinth area, both the courts below had come to the conclusion that the plinth area of both the blocks is 4307 sq.ft. The said decision cannot be questioned by the tenant since he had not disputed the same in his counter. Further, he would submit in his argument that the vacant site of the demised building was stated to have been 4277.5 sq.ft in the petition and it was spoken by PW2 also to which RW2 had contraverted in his evidence that it was only 3975.25 sq.ft and however, both the courts below had come to the conclusion regarding the site area to be 4275.5 sq.ft since the tenant did not deny the same in his counter.
20. He would also submit that the age of the building was given as 65 years for the rear block and 20 years for the front block and the same was not contraverted in the counter and the evidence given by the PW2 in support of the pleadings made in the petition was also contraverted by RW2 as 62 years for the old building, and 30 years for the new building, which was not accepted by the courts below and the concurrent finding reached was that the old building was aged at 60 years and the new building was aged 20 years cannot also be interfered by the tenant in this revision. He would also submit that all this concurrent findings reached by the courts below cannot be re-appraised by this court in the revision and to reach a different finding. He would also submit that the site value was stated to be Rs.75 lakhs per ground in the petition and the said plea was also not disputed in the counter. However, PW2 spoke in his evidence that it was Rs.80,00,000/- per ground and it was contraverted by R.W.2 that it was only Rs.47,30,833/- per one ground. On considering the evidence, the learned Rent Controller relied upon the evidence of PW2 held the site value to be Rs.80 lakhs per ground and based on the admission of RW2 that the guideline value would be Rs.99,86,000/- for one ground. However, the Rent Control Appellate Authority had modified the value at Rs.71,94,356/- on the basis of the Supreme Court judgment reported in (2004) 2 SCC 283 (Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun Through his Secretary Vs. Bipin Kumar and another) in respect of the premium to be calculated for fixing the market price the said finding was reached by the Rent Control Appellate Authority on the principle laid down by the Honourable Apex Court and therefore, the said finding reached by the Rent Control Appellate Authority may not also be disturbed. He would further submit in his argument that the document laid down by the tenant in Ex.R3 was admittedly a subsequent sale in respect of a property located interior to the Poonamallee High Road, where as the property compromised in Ex.P10 and P12 are abutting the Poonamallee High Road which value would be different from property compromised in Ex.R3. He would further submit that the property in question is also abutting Poonamallee High Road. Therefore, the value mentioned in P10 and P12 only would apply and the value mentioned in Ex.R3 would not apply. Moreover, the said document in Ex.R3 would not depict the correct value of the property as on the date of the petition. Therefore, the value mentioned in Ex.R3 cannot be the correct value for the demised premises and cannot be considered for fixing the fair rent. He would further submit that the tenant has not raised all this point before the Rent Controller as well as Rent Control Appellate Authority and they have correctly followed the procedure to fix the fair rent for the demised building and therefore, the revision filed by the tenant is not sustainable. He would also cite a judgment of the Honourable Apex Court reported in AIR 2001 SC 1387 (M/s.Shaw Wallace & Co.Ltd., Vs. Govindas Purushothamdas and another) in respect of the scope of revisional jurisdiction of the High Court to interfere with the finding of the courts below. Relying upon the said judgment, he would submit that the findings of the court below in respect of the facts were not tainted with the illegality or without any proper perspective of evidence and therefore, this court being the revisional court need not interfered with the findings reached by the courts below. He would therefore, request the court that there is no merit in revision and the same may be dismissed with exemplary cost.
21. I have given anxious thoughts to the arguments advanced on either side.
22. The relationship of landlord and tenant is admitted. The property described in the schedule was originally let out to the tenant in the year 1998 and the tenancy period commenced from 01.01.1996 for 5 years. Thereafter, it was extended on an agreement regarding enhancement of 25% in the existing rent from 01.01.2000 to 31.12.2005. The said rent was paid till the lapse of the 10 years period ending with 31.12.2005. However, the landlady had demanded further enhancement of rent before the expiry of the lease, i.e., during December 2005. But the said request of the landlady was not considered by the tenant for several years. However, the rent existed in between the parties was continued to have been paid till the petition for fixation of fair rent has been filed by the landlady. According to the submission of the learned counsel for the tenant, the said offer for the increase of 25% rent by the landlady was accepted by the tenant and therefore, there was a contractual agreement for payment of rent and the landlady cannot seek for fixation of fair rent, eschewing the agreed contractual enhanced rent. However, the said fact was denied by the learned counsel appearing for the landlady stating that the said offer was not accepted and there was no enhanced contractual rate of rent at the request of the landlady. No doubt, the plea has not been raised before the courts below.
23. The learned counsel for the landlady cited a judgment of Honourable Apex Court reported in (2000) II MLJ 39 (SC) (Union of India Vs. E.I.D. Parry (India) Ltd.,) for the principle that the argument cannot be advanced beyond the pleadings at the revision stage. The relevant portion would run as follows:
4. The scope of the suit was limited. The pleadings comprising of the averments set out in the plaint and the defense put up by the present appellant in their written statement did not relate to the validity of the Rule struck down by the High Court. The High Court, therefore, travelled beyond the pleadings in declaring the Rules to be ultra vires. The judgment of the High Court therefore, on the question cannot be sustained.
24. The judgment of this Court reported in 2009 1 CTC 779 (Dhanasekaran Vs. The A.R.C. School Board, rep. by its Secretary, V.Balu, 26, Saiva Muthiah Mudali Street, Muthialpet, Chennai-600 001) would also focus on this point. The relevant passage would run as follows:
11. In this case, the petition for eviction as well as the counter filed by the tenant, does not disclose that the respondent/landlord would fall under either of the two categories, namely, public charitable trust or religious public trust. Therefore, it cannot be contended that the exemption under G.O.Ms.No.2000, is patently exhibited on the basis of the pleadings, so as to enable the petitioner/tenant to raise it as a point for the first time at the stage of revision. In the decision relied upon by the learned counsel, a copy of the trust deed was marked as exhibit and there was overwhelming oral evidence to show that it was a public charitable trust. But in this case, there is absolutely no pleadings or evidence to show that it is a public charitable or public religious trust and hence the plea cannot be allowed to be raised at the stage of Revision. Hence the first contention is rejected.
25. The aforesaid principles laid down by Honourable Apex Court, and this Court would go to show that new plea cannot be raised at the revisional stage, when the revision petitioner has failed to raise the same before the courts below.
26. Even otherwise, the contention can be raised by the tenant regarding the said plea, at the revisional stage, the law is well settled that the fixation of fair rent is not only a benefit for the landlord but also a right given to the tenant to fix the fair rent, when the contractual rent agreed in between parties are not just and fair. So far as the tenant is concerned, if the contractual rent is enormously high, he can resort to fixation of fair rent under the Act. Similarly, in the case of the landlord, if the contractual rent is very low, the landlord can file such application. Therefore, either party can apply before the Rent Controller, who would fix the fair rent in accordance with the procedures contemplated under the Act despite contractual rent has been agreed in between them. Therefore, there would not be any bar for the tenant or the landlord to go for applying fixation of fair rent under Section 4 of the Act. This would be very clear from the decision of this Court reported in 1962 (i) MLJ page 406 (P.Venkataswami, Receiver, in T.O.S.No.9 of 1947 Vs. Abdul Rahim & Brothers)The relevant passage would run as follows:
The tenant has a right to apply for fixation of fair rent and the mere fact that he agreed to pay rent at a certain rate at the inception of the tenancy is not a bar to enforce such a right. Whatever right a tenant may have against the landlord in regard to improvements effected by him in respect of the premises voluntarily, the carrying out of such improvements cannot be a relevant circumstance enabling the tenant to prevent the landlord from obtaining the benefit of increase of rent over the basic rent. The fixation of fair rent does not mean the fixation of a low rent favourable, beneficial and to the advantage of the tenant, as that would result, in the landlord getting only an unfair rent. In the instant case, the fair rent fixed by the Rent Controller was just, proper and in accordance with the provisions of the Act.
27. Therefore, I am of the considered view that the landlady is entitled to apply for fixation of fair rent and it is for the Rent Controller to fix the fair rent and the parties cannot arrive at a fair rent by consensus.
28. As regards the fixation of fair rent in this case by the learned Rent Controller, which was slightly modified by the learned Rent Control Appellate Authority, I could see that the premises was located in two blocks, namely, front block and the rear block. In the front block, the building was new and the rear block, was older than the front block. In the first floor portion of the rear block, there is another tenant, sharing the vacant space available at the north-western corner of the premises with the tenant herein. Whereas in the front block, there is an entrance and in the said entrance, there is a vacant space which would be exclusively used by the tenant. A plan has been drawn by the engineer examined by the landlady as PW2 which was produced as Ex.P9. Ex.P8 was produced by the said Engineer, PW2, through his evidence. The said report would describe the demised property, its extent and the value fixed for basic amenities, Schedule-I amenities and other particulars regarding its value and the vacant site value. Similarly, the tenant had also examined an engineer as RW2 who had produced a report which does not contain a plan. Admittedly, there are difference in between the reports of the engineers, examined as PW2 and RW2.
29. The main contention of the tenant in this revision would be that the landlady who is expected to have possession of the plan for the demised building should have produced the plan containing measurements but she did not produce them. Moreover, it was contended that the lease deed had the description of the entire area at 36 X 30 sq.ft only. When there is a difference between the area of the demised property leased and the measurements given by the engineer, PW2, it is for the landlady to prove by producing the plan. No doubt, the approved plan has not been produced. Similarly, the extent of area in respect of the demised property is given in the lease deed, i.e., 36 x 36 sq.f. does not tally with the total measurement of the demised properties as measured by PW2 or RW2. Certainly, the measurement taken by PW2 and RW2 are more than that of the extent as mentioned in the lease deed. Therefore, the area which is in possession of the tenant was subsequently enlarged by the landlady and therefore the measurements taken by both the engineers does not tally with the earlier measurements, given in the lease deed.
30. When we look into report of both the engineers, PW2 and RW2, I could see that the vacant site as mentioned in the petition as 4277.5 sq.f. tallied with the measurements given by PW2 in his report, Ex.P8. However, the report of RW2 in Ex.R1 would show that the site area was only 3975.25 sq.f. Similarly, the plinth area given in the petition tallys with the Ex.P8, however, it differs in the report of RW2 (i.e.,) Ex.R1. However, the learned Rent Control Appellate Authority have waived the evidence of both and have considered the non-denial of those pleas in the counter and thus accepted the explanation given in Ex.P9 and the evidence given by PW2. Whether, such concurrent finding given by the courts below, could be found as perverse controvert or illegal is the question to be considered.
31. As already discussed, the extent of the property as well as the plinth area as pleaded by the landlord in the petition was not denied by the tenant. When the tenant had not denied the pleadings of the landlord nor suggested any measurement in respect of the extent or the plinth area, naturally, the evidence adduced in support of the petition would be considered as proved. Therefore, I find there is no perversity in the findings reached by the courts below.
32. Further more, the same principle could be made applicable in respect of the findings reached by the Courts below. As regards the age of the rear block at 65 years and the age of the front block at 20 years, even in the pleadings, the tenant did not deny or state any age in its counter. The evidence adduced by RW2 in respect of the age of the old building at 62 years and new building 30 years would not in any way prove the same, since the said evidence was without any pleadings. Therefore, both the Rent Controller as well as Rent Control Appellate Authority are perfectly right in deciding the age of the building in question.
33. On the basis of the evidence regarding the basic amenities, both the courts found that the basic amenities are available and 15% could be awarded was also of judicious in nature and it cannot be interfered in this revision. In the similar finding reached by the courts below in respect of Schedule-I amenities, also this Court does not find any infirmity, to vary the findings.
34. I could see that the 10% sought for in the petition but learned Rent Controller fixed it at 9%, whereas the Rent Control Appellate Authority had come to the conclusion of 7% only and therefore, no interference is needed in that point also. When all these factors have been correctly perceived, this Court cannot interfere with the factual findings of the courts below, since there was no perversity or biased attitude or any illegallity in the appreciation of evidence.
35. The next point to be seen in this case would be whether less value was fixed for the superstructure, as per the PWD rate or not.
36. It is very clear from the submission of both sides that PWD rate alone can be followed for arriving the value of superstructure. This could be strengthened by the decision of this Court reported in 1996 (1) CTC 567 (M/s. Maya Appliances and Control Equipment rep. by its partner Thiru Varadarajan and another). The relevant passage would be as follows:
10. Regarding the cost of construction, the Statute provides that as far as possible, P.W.D. Rates have to be taken into consideration as a Guideline. The landlord said that the cost of construction will be about Rs.60/- per sq.ft. The P.W.D. Rate was much higher even during that time. That can be seen from a few decisions of this court.
11. In Collector of Madras V.A.N.Gajendran, 1998 (2) LW 49 the cost of construction during1981-82 was taken to be Rs.76/- That is clear from paragraph 4 of the said judgment, at page 51 of the Reports.
37. As rightly said in the judgment, the learned Rent Controller as well as Rent Control Appellate Authority have followed the PWD rate as on 2007 for fixing the value of the superstructure.
38. Next important point to be considered, is the value of the vacant site. The learned Rent Controller as well as Rent Control Appellate Authority have found that the vacant site to be valued was 4277.5 sq.ft. It has been already discussed by this court, that this court cannot interfere with the concurrent findings of facts reached by the lower courts which includes the vacant site, for fixation of the market value. Totally 3 documents were produced before the learned Rent Controller, namely, Ex.P10, Ex.P12 and Ex.R3. Ex.P10 as of the year 2002. Similarly, Ex.P12 is of the year 2004 where as Ex.R3 produced by the tenant was dated one month after the filing of the petition before the Rent Controller.
39. Out of these 3 documents which could be more suitable for fixing the market value of the vacant site is the question, the learned Rent Controller as well as Rent Control Appellate Authority discarded Ex.R3, as the document was dated after filing of the petition. As the property comprised therein is located in the road branching from Poonamallee High Road. However, both the courts below have accepted that Ex.P10 and P12, where the properties comprised in them are located abutting Poonamallee High Road and the value of those properties could have been similar. Out of the two, Ex.P12 was selected and the learned Rent Controller had combined with the admission of RW2 that the guideline value would be Rs.99,86,000/- per ground and had fixed the market value at Rs.80,00,000/- per one ground.
40. It has been contended by the learned counsel for tenant, that the admission of RW2 that one ground was valued at Rs.99,86,000/- was sheerly a mistake and the said valuation given by RW2 is not sustainable, since the documentary evidence in Ex.R2 would show that the said value of Rs.99,86,000/- was for Rs.5,600/- sq.ft and therefore, the documentary evidence in Ex.R2 will prevail over oral evidence of RW2.
41. The judgment cited by the learned counsel for the tenant reported in 2004 (2) SCC 283 (Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun Through his Secretary Vs. Bipin Kumar and another) would be relevant. The relevant passage would be as follows:
7. Section 92 of the Evidence Act precludes a party from leading evidence contrary to the terms of a written document. It was, therefore, not open to the respondent to urge that, even though his sale deed showed a price of Rs.15.40 per sq. yard the real market value was Rs.120 per sq. yard. To permit a party to so urge would be to give a premium to dishonesty. Parties who undervalue their documents, for purpose of payment of stamp duty, cannot be allowed to then claim that their own documents do not reflect the correct market value.
42. The aforesaid judgment of Honourable Apex Court would clearly show that the documentary evidence produced cannot be overriden by any oral evidence as per the provisions of Section 92 of Evidence Act. Therefore, the admission given by RW2 that one ground of land was valued at Rs.99,86,000/- as per the guideline register need not be considered since it is barred by Section 92 of Evidence Act.
43. However, the reasons given by the courts below for not relying upon Ex.R3 is quite reasonable. It is an admitted fact that the property described in Ex.R3 is situated in an inner road and not abutting Poonamallee High Road. Secondly, the said document came to existence clearly after the filing of rent control petition. Thus, two parameters which are barring the documents were considered and was correctly decided by the courts below. The said finding of the courts below cannot be interfered. Both the courts below have selected Ex.P12 since the property comprised therein is very near to the property in question. The learned Rent Controller had calculated 20% premium for each year to arrive to a correct market value in the year 2007. The said principle of following 20% may sound good, if sufficient reasons were assigned for giving such premium. No doubt, the property is located in a busy area namely Poonamallee High Road surrounded by Aminjikarai market and cinema theatres like Lakshmi Talkies and Muralikrishna talkies, Pachaippa's college and other banks.
44. In a judgment of Honourable Apex Court, the premium to be calculated for assessing the market value of the urban properties had been fixed, whenever the correct datas have not been made available in the said year prior to the filing of the petition. The said judgment reported in 2004 (2) SCC 283 (Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun Through his Secretary Vs. Bipin Kumar and another) would be relevant for this purpose
8.However, there is evidence of high potentiality. The increase of 15% given by the High Court cannot, therefore, be said to be unreasonable. Of course, the 15% increase has to be on Rs.15.40 which is the figure shown in the sale deed. It cannot be on Rs.120 as wrongly taken by the High Court. The High Court also erred in considering only three years increase whereas in fact there is four years' difference between the respondent's sale deed and the acquisition proceedings. Thus taking an increase of 60% over the price of Rs.15.40 per sq yard, the value comes to Rs.24.64. Per sq yard.
45. The Honourable Apex Court in the judgment made in the case between General Manager, Oil and Natural Gas Corporation Limited Vs. Rameshbhai Jivanbhai Patel & Anr., as reported in 2008 AIR SCW 5947, has summed up the principle as follows:
"There is a significant different in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural areas. If the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same".
46. Considering the dictum laid down in judgments of Honourable Apex Court, the Rent Control Appellate Authority had calculated 15% premium for each year and had arrived the market value of one ground at Rs.71,94,356/- The said calculation made by the learned Rent Control Appellate Authority is fair and just. When the finding reached by the courts below as well as the procedure followed by the learned Rent Control Appellate Authority and the principle followed to arrive at the market value of the land in question were perfectly done by the Rent Control Appellate authority. I am of the considered view that in the revisional jurisdiction, no interference could possibly be made with the decision reached by the Rent Control Appellate authority.
47. The judgment of Honourable Apex Court reported in 2004 (4) LW 231 (Ramdass Vs. Davinder), it has been categorically held as follows:
"6. The appellate authority has made an independent evaluation of the evidence and confirmed the findings of the Controller. The High Court has, while exercising its revisional jurisdiction, entered into re-appreciation of evidence not open to the High Court, more so, keeping in view the manner in which the exercise has been undertaken by the High Court. To say the least, we find that there is to some extent misreading of the evidence by the High Court........... Thus the High Court has proceeded to reverse, on erroneous assumptions, the findings of facts concurrently arrived at by the two authorities below and such exercise by the High Court as also the conclusions drawn therefrom, we find difficult to countenance inasmuch as they are vitiated. We are clearly of the opinion that the High Court has exceeded its jurisdiction in reversing the well considered findings of fact arrived at by the two courts below"
48. Following the principle laid down in the aforesaid judgment, I could see that the findings reached by the learned Rent Control Appellate Authority as well as the modification of the market value of the vacant site, are found to be sound. Hence, I find no reason to interfere with the modifying order passed by the learned Rent Control Appellate Authority.
49. For the foregoing reasons, I am of the considered view that the findings reached by the courts below are in order and the modification of market value as reached by the Rent Control Appellate Authority is also quite reasonable and there is no reason to interfere with the orders passed by the learned Rent Control Appellate Authority in RCA.No.586 of 2008 in RCOP.No.276 of 2007 modifying the orders passed by the learned Rent Controller are confirmed and the revision petition deserves a dismissal.
In fine, the revision petition filed by the petitioner/tenant is dismissed, confirming the order passed by the learned Rent Control Appellate Authority. No costs.
12.06.2012 Index : Yes/No Internet: Yes/No gv To
1. VII Judge, Small Causes Court, Chennai.
2. XIII Judge, Small Causes Court, Chennai.
V.PERIYA KARUPPIAH,J.
gv Pre-delivery order made in C.R.P.NPD. No.1023 of 2010 12.06.2012