IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 WP(C).No. 6753 of 2009(L) ------------------------- AGAINST THE ORDER IN EP 3/2007 IN RCOP.10/2004 of MUNSIFF COURT, CHANGANACHERRY .................... PETITIONER(S): --------------- K.U.JOSEPH, PROPRIETOR DEEPTHI PAPER INDUSTRIES NOTE BOOK MANUFACTURE AND PRINTER NERIAMPARAMPIL BUILDING VAZAPPALLY EAST VILLAGE, NEAR RAILWAY STATION CHANGANACHERRY BY ADV. SRI.ABRAHAM SAMSON RESPONDENT(S): --------------- JOSE CHERIAN, NERIAMPARAMPIL HOUSE THURUTHY KARA VAZHAPILLY WEST VILLAGE CHANGANACHERRY TALUK NOW EMPLOYED AS REGIONAL DIRECTOR EMPLOYEE STATE INSURANCE CORPORATION THRISSUR - 20 BY ADV.SRI.G.RAJAGOPAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. - - - - - - - - - - - - - - - - - - - - - W.P.(C).No.6753 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of March, 2009 JUDGMENT Pius.C.Kuriakose, J. This writ petition under Article 227 of the Constitution is filed by the tenant against whom order of eviction has been passed by the rent control court and the appellate authority on the ground under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act 1965 and who is facing execution proceedings before the Munsiff Court, Changanacherry in E.P.No.3/2007 in R.C.O.P.No.10/2004. The grievance voiced by the petitioner is that the learned Munsiff has already passed an order of delivery overruling the various objections raised by him to the E.P. and that the learned Munsiff is not issuing certified copy of the order of delivery so as to enable the petitioner to prefer a revision under Section 14 of the BRC Act before the District Court. 2. Sri.G.Rajagopal, learned counsel who has taken notice for the landlord drew our attention to the judgment of the rent control WPC.No.6753/09 2 appellate authority confirming the order of eviction passed by the rent control court under Section 11(2)(b). Sri.Rajagopal would submit that it has been found by the rent control appellate authority that the tenant has not discharged the arrears of rent which fell due in respect of the building in question during the period from 01/06/1995 till 10/03/2004 and that the tenant is liable to discharge the arrears of rent together with statutory interest and costs. 3. Sri.Abraham Samson, learned counsel for the petitioner would submit that the allegation that the rent is in default as found by the rent control appellate authority is not correct. He claimed as he is having documents which will show that the finding of the rent control appellate authority is not correct. 4. We are of the view that since the judgment of the rent control appellate authority is not under challenge before this court in a revision under Section 20, it is too late in the day for the petitioner to assail the findings in the rent control appellate authority's judgment regarding the arrears of rent. Since the appellate authority's judgment has attained finality, there is no gain saying the situation that the rent which fell due during the period from 01/06/1995 till 10/03/2004 has WPC.No.6753/09 3 not been paid. If at all, any payment has been made by the petitioner, all those payments have been towards the rent which fell due subsequent to 10/03/2004. The correctness of the arrears and subsequent rent actually due from the petitioner may have to be decided in a proceedings under Section 11(2)(c), if any such proceedings is initiated by the petitioner before the rent control court. We in this writ petition are only concerned with the question whether the order of delivery now passed by the execution court should be stayed and that court be directed to issue certified copy of the order to the petitioner so as to enable the petitioner to prefer revision under Section 14. We are of the view that it will not be justified in this case to issue the directions sought for in the writ petition unconditionally. We find that actual arrears of rent alone ( as on today) for the period from 01/06/1995 till 10/03/2004 will come atleast to Rs. 73,750/-. According to us, unless the petitioner immediately makes payment of that amount, he cannot even aspire for the relief of having certified copy of the order of delivery issued to him immediately. 5. Accordingly, we dispose of the writ petition issuing the following directions: WPC.No.6753/09 4 The execution court is directed to adjourn the delivery presently ordered by him to 10/03/2009. The petitioner is directed to pay a sum of Rs. 73,750/- ( Rupees seventy three thousand seven hundred and fifty) to the respondent/landlord either directly or through his counsel before the Munsiff court, Changanacherry or before this court by cash and produce receipt before the execution court by 10/03/2009. If the execution court notices such receipt on 10/03/2009, that court will adjourn the delivery by another one month, issue certified copy of the order of delivery and the certified copy of the order dismissing I.A.No.705/2008 forthwith. If the execution court does not notice receipt filed by the petitioner against payment of the sum of Rs. 73,750/- as ordered above, that court will ensure that delivery is effected forthwith. Issue copy today itself. PIUS.C.KURIAKOSE JUDGE C.K.ABDUL REHIM JUDGE sv. WPC.No.6753/09 5