IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 24490 of 2007(M)
1. PAZHERI MUHAMMEDALI,S/O.KUNHAPPUTTY,
... Petitioner
Vs
1. NAROTH PARAMBIL AHAMMED KOYA,
... Respondent
2. SOUDABI,AGED 28,D/O.KURIKKAL
For Petitioner :SRI.GEORGE THOMAS (MEVADA)
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :13/08/2007
O R D E R
M.N.KRISHNAN, J.
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WP(C)No.24490 OF 2007 M
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Dated this the 13th August, 2007.
JUDGMENT
This writ petition is filed challenging the order
passed in C.M.A.2/06 of the Subordinate Judge’s Court,
Tirur. The plaintiff is the writ petitioner before this
court. The plaintiff has moved a suit before the court
below for eviction of the tenant with arrears of rent. The
suit was instituted in the year 2005. Subsequently the
plaintiff moves an application before the court and the
court dismissed his application for issuance of a
commission and passed an order against the plaintiff from
forcibly evicting the defendants from the plaint schedule
property. As far as the suit to start with is concerned a
question of injunction cannot be envisaged because the
tenant was in rightful possession of the property. It is
is the case of the plaintiff that on 26.12.2005 the
defendant voluntarily surrendered possession of the
premises to the plaintiff and thereby the plaintiff came
into possession of the property. Or in other words it is a
case of surrender of the premises. The court below did not
agree with the same when the defendants resisted it. In
the ordinary course of human conduct when a litigation is
filed for eviction with arrears of rent and the parties
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compromise the matter or surrender the property only
through the intervention of the court finalities are
obtained. The relationship between the parties have not
been cordial. So, unless there is some intrinsic
acceptable evidence to prove the surrender one cannot lean
in favour of the landlord. Learned counsel for the writ
petitioner very strongly contends before me that had the
court below allowed an application for the issuance of a
commission the factum would have been proved and therefore
the opposition made by the defendants in the suit leads to
an inference that they are not speaking the truth. As far
as the case of this nature is concerned that too when the
persons are fighting against each other, as I stated
earlier, there should have been at least a piece of paper
to prove surrender of the premises. In the absence of it
issuance of a commission may not be helpful to prove the
surrender of the property. So under these circumstances, I
am not inclined to interfere with the order passed by the
courts below and therefore the writ petition is dismissed.
But considering the contest between the parties and the
present contention of injunction it is only just and
reasonable to direct the trial court to expeditiously try
WPC 24490/07 3
and dispose of the case within a period of three months
from today.
M.N.KRISHNAN
Judge
jj