IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31779 of 2009(N)
1. THOMAS, AGED 55, S/O.LATE LONAPPAN,
... Petitioner
Vs
1. PAILOTH, S/O.LATE PAUL,
... Respondent
For Petitioner :SRI.DINESH R.SHENOY
For Respondent :SRI.MATHEW JOHN (K)
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :10/11/2009
O R D E R
PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.
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W.P.C.No. 31779 OF 2009
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Dated this the 10th day of November, 2009
JUDGMENT
Pius C.Kuriakose, J.
The tenant is the petitioner in this writ petition under
Article 227 of the Constitution. His grievance is that even as
Ext.P2 appeal and Ext.P3 petition for condonation of delay are
pending before the Rent Control Appellate Authority, the
Execution Court has ordered delivery on 16/11/2009 empowering
the Amin to break open the lock placed on the door of the
petition schedule building and that too with the assistance of
police. If the order of the Execution Court is implemented, the
same will result in Exts.P2 and P3 being rendered infructuous.
2. Sri.Mathew John entering appearance on behalf of the
landlord, who has served by special messenger, submitted that it
is a false affidavit which has been sworn to by the writ petitioner.
The learned counsel further submitted that the writ petitioner
claims in the affidavit that he is laid up due to ailments. But, the
truth is that he is an insurance agent quite hale and hearty
WPC.No.31779/2009 2
moving about from place to place canvasing policies. The
discretionary jurisdiction of this court under Article 227 is not to
be invoked in favour of a person, who comes to this court with a
false case. Sri.Mathew John further submitted that even on the
admission of the writ petitioner as on today a sum of Rs.55,500/-
(inclusive of the rent which fell due subsequent to the filing of the
RCP) will be due to the landlord. The tenant is not entitled to
contest the proceedings for eviction unless and until he pays
atleast that amount to the landlord. Sri.Mathew John also
submitted that by filing the instant writ petition, the tenant is
trying to achieve what he could not on legal reasons, from the
Appellate Authority.
3. We have very anxiously considered the rival submissions
addressed at the Bar. We do notice some merit in the
submission of Sri.Mathew John that the petitioner could not have
obtained order of stay from the Appellate Authority before Ext.P3
application for condonation of delay was allowed. But, at the
same time, we notice that allowing the delivery order presently
passed by the Execution Court to be implemented will result in
Exts.P2 and P3 being rendered infructuous. Under the above
WPC.No.31779/2009 3
circumstances, we are inclined to dispose of the writ petition
issuing the following directions;
i). The petitioner is directed to pay a sum of
Rs.55,500/- to the respondent either directly or
through his counsel in this court on or before
24/11/2009 and produce receipt before the Rent
Control Appellate Authority. If the Rent Control
Appellate Authority notices such a receipt, that
Authority will ensure that Ext.P3 delay petition and
Ext.P2 appeal are disposed of in accordance with
law on or before 7/12/2009.
ii). In view of the above direction, the
Execution Court is directed to adjourn the delivery
of the petition schedule building initially to
25/11/2009. If, on 25/11/2009, when the case is
called by the Execution Court, it is reported that
the amount as ordered herein above is already
paid, that court will await decision of the
Appellate Authority in Ext.P2 and P3 before issuing
delivery warrant.
WPC.No.31779/2009 4
It is needless to mention that the direction as above for
payment of Rs.55,500/- is without prejudice to the contention of
the writ petitioner that so much of amount is not payable.
The writ petition is disposed of with the above directions.
PIUS C.KURIAKOSE,JUDGE
K.SURENDRA MOHAN, JUDGE
dpk