IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35541 of 2009(K)
1. V.C.JOHNY,S/O.CHAKKAPPAN, RESIDING AT
... Petitioner
Vs
1. MUHAMMED KUNHI, PROPRIETOR, HOTEL
... Respondent
2. SARIMATH,S/O.LATE MUSTHAFA.
3. RASHEEDA, D/O.LATE MUSTHAFA.
4. SAMSHAD, S/O.LATE MUSTHAFA.
5. HAZEENA, D/O.LATE MUSHTAFA.
6. SHAHEENA, D/O.LATE MUSTHAFA.
7. AKBAR ALI, S/O.LATE MUSTHAFA.
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.MILLU DANDAPANI
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :18/12/2009
O R D E R
PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.
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W.P.C.No. 35541 OF 2009
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Dated this the 18th day of December, 2009
JUDGMENT
Pius C.Kuriakose, J.
Under challenge in this writ petition under Article 227 is
Ext.P3 order dismissing an application for issuance of commission
and Ext.P5 order dismissing an application seeking review of
Ext.P3 order. The writ petitioner is the landlord and his case is
that the application for issuance of commission was filed by him
on the basis of the permission granted by this court under
Ext.P1 order of remand. His grievance is that the learned Rent
Control Court dismissed the application stating that this court
under Ext.P1 has not specifically permitted collection of evidence
by deputing commissions. According to Sri.V.Chitambaresh,
learned senior counsel for the petitioner, it is an open remand
that was passed by this court and full liberty has been given to
both sides to adduce whatever evidence they want to.
2. Even though the submissions of Sri.Chitambaresh was
resisted by Mr.Millu Dandapani, who would allege that the
intention of the petitioner in seeking issuance of commission is
WPC.No.35541/2009 2
only to protect the trial, we are of the view that the learned Rent
Control Court was in error in dismissing the application filed by
the petitioner for issuance of commission. This is what we have
stated in paragraph 12 of Ext.P1 remand order;
“Both the landlord and the tenant shall
be at liberty to adduce any further evidence,
both oral and documentary as deemed fit by
them. However, the Rent Control Court shall
take note of the fact that the Rent Control
Petition is of the year 1996 and shall make
every endeavour to finally dispose of th
same as expeditiously as possible, at any
rate within a period f three months from the
date of receipt of a copy of this order.”
3. According to us, Ext.P1 grants liberty to both sides to
adduce whatever type of evidence they are desirous of. The Rent
Control Court was not at all justified in dismissing the application
saying that in our judgment we have not specifically mentioned
about the issuance of commission. The writ petition necessarily
has to allowed. We do so. Exts.P3 and P5 are set aside. Ext.P2
WPC.No.35541/2009 3
I.A. is allowed. The Rent Control Court is directed to appoint a
competent advocate of that court as commissioner for
conducting inspection on the various aspects mentioned in Ext.P2
and for submission of report. The Advocate commissioner to be
appointed should be directed to ensure that inspection is
conducted early and report is filed at the earliest.
PIUS C.KURIAKOSE,JUDGE
K.SURENDRA MOHAN, JUDGE
dpk