K.R. Krishna vs District Judge

S. Padmanabhan, J.—Petitioner in both the original petitions is the tenant and fourth respondent is the landlord. Fourth respondent filed R. C.P. No. 38 of 1983 for eviction on the ground of arrears of rent. Petitioner then filed R C. P. No. 44 of 1983 for fixation of Mr rent. Thereafter, fcuith respondent again filed R.C.P. No. 61 of 1983 for eviction on the ground of bona fide need for own occupation also. All the petitions were tried together and disposed of by a common order. R. C. P. No. 44 of 1983 Was allowed and fair rent was fixed at Rs. 23 per month, though contract rent was Rs. 300 per month. Other two petitions were dismissed. Fourth respondent filed three appeals. Appeal against R. C. P. No. 61 of 1983 was dismissed, holding that bona fide need is not established. That decision was not challenged in revision and hence it became final. Other two appeals were allowed, holding that contract rent of Rs. 300 per month is the fair rent and allowing eviction on the ground of arrears of rent.

Petitioner challenged the orders by filing two revision petitions. Both were dismissed. Hence these two original petitions were filed under Article 227 of the Constitution, for setting aside the decisions of the appellate and revisional authorities and for restoring that of the rent control court.

First contention was that in fixing fair rent, appellate and revisional courts did not follow the mandate of Section 5 (2) of the Rent Control Act and the proviso thereof by ignoring the house tax assessment of'' the local. body for the relevant period, evidenced by Exts. Bl to B4. Decisions in Auto Transport Union (P) Limited v. Cardamom Marketing Co. Limited (1966 K.L.T 1063), Devassy v. Joseph (1909 K.L.T 541), Imbichamu v. Imbichi Fathumnebi (1975 K.L.T 138) and Narayana Pillai v. Thomas Kurian (1980 K. L. T 846) were relied on in support There cannot be any dispute regarding the propositions of law laid down in these decisions, provided house tax was fixed for the relevant period in the concerned register on the basis of the rental value. Section 5 (3) says that if no property tax or house tax was fixed for the relevant period or if the fixation was not based on rental basis, fair rent shall be fixed after taking Into consideration the prevailing rates of rent in the locality for similar accommodation in similar circumstances during twelve months preceding the letting. This was the provision found applicable by the appellate and revisional courts. Section 5(2) along- with the proviso accepted the monthly rent taken Into account by the local body for the relevant period for fixing house tax as the basis and placed some restrictions on the discretion of court only because that could be taken as representing the actual rental. What the legislature wanted to be fixed as fair rent and. given to the landlord is the prevailing rate of rent for similar accommodation in similar circumstances during twelve months preceding the letting. In an area where there is dearth of accommodation and high demand, a landlord may be in a coram inding position and a needy tenant could be compelled to agree for unconscionable rent. Such a situation is what the legislature wanted to avoid.

For that purpouse, basis of assessment made by the fcoal body could normally bs accepted at correct, because assessment is expected to be made on the basis of the prevailing rates of rent for similar accommodation in similar circumstances. That is why, though In proper cases the court is given discretion to fix fair rent lower than what is aseeseed by the local body it is provided that in no case it should exceed 15%. Object of the provision is to protect botb landlord and tenant. While landlord most get reasonable rent at local rates, tenant should not be compelled to over pay, in spite of the circumstances, which persuade him to agree for an unreasonable rem. If it is seen that house fax in the concerned register of the local body was not fixed on rental basis mentioned id Section 5 (2) and the ptoviftO, Cbdrt can proceed Id find out reasonable tent, for Which the guideline is the actual rate of rent prevailing in the locality for similar accommodation in similar circumstances dating the past twelve meatus prior to letting.

Prior tenant was admittedly in occupation continuously from 1955 upto 1978 for a rent fixed very early, that did not represent the rental value of the building during the relevant period. From 1978 upto 1981 fourth repondent was in direct occupation. It was in 1981 that It was rented out to petitioner. Agreed rent Wet Rs. 300 par month. Even the case of the petitioner it only that Rs. 260, which alone was agreed by him, is the reasonable rent. Assessment, evidenced by EXta. Bl to B4, was only a continution Of the assessment on the basis of the nominal rent paid by the prior tenant. Rental value Was not re-fixed when fourth respondent was in occupation. These aspects wire considered by the appelate and revisional courts, in the fight of the available evidence and pleadings. H was found on the evidence that during the twelve months prior to letting, prevailing rate of rent in the locality for similar accommodation in similar circumstances was more than Rs 400 per month. But the agreed rent Was only Rs. 300 and that atone was fixed as the monthly fair rent Both the courts when acting reasonably, according to law, within their Units of jurisdiction. In exercise of powers under Article 227, there limits of for Interference.

Therefore, the alternate request was that even if the original petitions are dismissed, he may be given an opportunity to exercise the option u/s 11 (2) (e) to get the order for eviction vacated on depositing the arrears with interest and cost; It support of the request, it was firstly argued that he is as a matter of fight entitled to such a course because the proceeding under Article 227 is a continuation of the rent control proceeding, which could be deemed to have come said to a final conclusion only when the petition is finally disposed of counsel said that in the decision in Nataraja chettiar v. Sulekha Amma (I987 (1) K. L.T.829) Supreme Court recognised the right of the aggrieved party in a rent control proceeding to approach the High Court under Article 227. That was in view of the decision in Aundal Ammol v. Sadashan Pi11(11(1987 (1) K. L. T 53). which held that a second revision to High Court from the revisional order of the of District Judge is not maintainable. These two decisions do not bay that an original petition under Miele 227 is a continuation of the original proceeding, on the basis of which it is filed.

It is ture that a Bench of this Court in Arumugham Chettiar v. Joseph (1961 K. L 823) said that jurisdiction under Article 227 is not original, but revisional and it is akin to Section 115 of the Code of Civil Procedure. As Supreme Court said in 1969 (2) S. C. J. 745, revisional jurisdiction is fundamentally appellate jurisdiction of a higher court with certain restrictions. As held in Kehar Singh Mal Singh v. Custodian General (A. I. It 1959 Punjab 58) and some other decisions, a proceeding under Article 227 could be considered as a civil proceeding if the original proceeding, en which it is based, is civil, in the srnse that it involves a civil dispute cognizable by a civil court u/s 9 of the Code of Civil Procedure. But these decision. could help the petitioner, as of right, only if it could be treated as conti�nuation of the rent control proceeding, which could be deemed to have come to an end only when the original petition under Article 227 is diposed of. Except Arumugham Chettiar''s case (1961 K. L. T 823), no other decision said that juridiction underArticle 227 is revisions and not original. It may be akin to Section 115 of the Code. But the remedy is not statutory, but only constitutional in exercise of the right of the general power of superintendence. In Ramesh and another v. Gendaial Moitlal Patni and others (A. I. it 1966 S. C. 1445. Supreme Court said that though an original petition and r Article 226 is a civil proceeding if the original proeeding is civil, it is not appeal or revision and it is a proceeding quite independent of the original proceeding. Therefore, in my opinion, a proceeding under Article 227 cannot be treated as continuation of the rent control proeeding, which must be deemed to have come to a final conclusion when the statutory remedy of revision is resorted to and it is disposed of.

Therefore, as a matter of right, petitioner is not entitled to be give the tight exercise the option u/s 11 (2) (c) when these original petitions are dismissed It was then argued that when these original petitions are finally heard and disposed cf without being dismissed, in limine the orders of the rent conlrol courts get merged in this order or are superceded by it and hence the right of option could be given as that is the final order. Such a course may be open only in cases where a decree or order of a subordinate court or tribunal merges in or is superceded by an appellate or revisional indgment or order. Iaterfmnce or nor-interference in an original proceeding ut.d.r Article 227 cannot have buzia an effect, becathe consideration is under a different right. Counsel said that if the original petitions were dismissed at the admission stage, position would have been different because the effect is only that this Court refused to interfere and hence the independent existence of the order, against which original petitions were filed, is unaffected. That is the position not only in an original petition, but in statutory appeals and revisions also because what is involved is only refusal to interfere and dismissal in limine. In cases in which notice is issued to opposite party and the matter heard and decided or even decided exparte, it may be a case of merger or supersession which takes away the independent existence of the order appealed or sought to be revised. But that question also cannot arise in an original petition, which is an independent original proceeding. I do concede that in spite of all these legal positions, in appropriate cases, this, Court can, in its discretion; allow the tenant to exercise the option u/s 11 (2) (c). But X do not think this is a fit case to exercise that discretion. After taking the building on lease for an agreed monthly rent of Rs. 300/-, which the competent courts found to be less than the fair rent, he filed fair rent petition as a counter-blast to the eviction petition. Then he purposely defaulted payment of rent from 1983 Now, rent for nearly nine years, amounting somewhere to Rs. 30,000/-is in arrears. Evan after the final decision in revision, he did not care to remit the arrears and try to get the order vacated. His attempt was to cling on to the building without paying anything Remedy under Article 227 is discretionary. A litigant, who approached the Court without bona fides, in such a situation is not entitled to any discretionary relief.

Original petitions are, therefore, dismissed. No costs.