IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 WP(C).No. 10319 of 2009(H) -------------------------- PETITIONER(S): --------------- ANIL J. KUMAR, S/O P.K.JANARDHANAN PILLAI PARVATHI BHAVAN, MANJADY POST AMALLOOR MURI, KUTTAPPUZHA VILLAGE THIRUVALLA TALUK BY ADV. SRI.P.KURUVILLA JACOB RESPONDENT(S): --------------- 1. MATHEW, S/O VARGHESE KOZHIMANNIL HOUSE VEROOR MURI CHETHIPUZHA VILLAGE, CHANGANACHERRY 2. MARIAMMA MATHEW W/O MATHEW, KOZHIMANNIL HOUSE VEROOR MURI CHETHIPUZHA VILLAGE CHANGANACHERRY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/03/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ. - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.10319 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of March, 2009 JUDGMENT Pius.C.Kuriakose, J. The Managing Partner of a health club by name “Prime Physique” which was the tenant of a building is the petitioner in this petition under Article 227 of the Constitution. Under challenge is the order of the Munsiff Court, Changanacherry passed in execution of a summery order of eviction passed in R.C.P.No.24/200. Ext.P4 is copy of the execution petition. The grievance voiced by the petitioner is that execution court has ordered delivery on 27/03/2009 and has posted the case to 31/03/2009 for effecting delivery and for filing report. The petitioner contended that a sum of Rs. 2,00,000/- had been paid to the respondent/landlords at the time of letting as security. The petitioner submits that they are ready to have the arrears of rent presently found by the rent control court to be due from them adjusted against security amount. Their request is that the balance amount be refunded to them and they will simultaneously surrender the building peacefully to the WPC.No.10319/09 2 landlords. 2. Had this contention been raised on the trial side, perhaps the rent control court or the appellate authority could have considered this contention since all security amounts are to be refunded to the tenants when the tenant is surrendering the premises back. But what we find is that a summary order of eviction was passed under Section 12(3) in an interlocutory application filed by the landlord alleging that the tenant has not paid even the arrears of rent admitted by him or the rent which subsequently fell due. Obviously, that summary order of eviction has become final since no appeal has been preferred against that order by the petitioner to the rent control appellate authority. The execution court cannot be blamed for having passed order of delivery since that court is not expected to examine the merits of the contention now raised by the petitioner. At the same time, since the contention appears to be supported by Ext.P2, a receipt issued by the landlords, and Ext.P1 lease deed, we are of the view that on the consideration that a final quietus is given to all pending disputes between the parties, order of delivery now passed by the execution court can be kept in WPC.No.10319/09 3 abeyance till 06/04/2009. The execution court will explore the possibilities of a settlement of the issue now surviving between the parties - the issue of the tenant being permitted to adjust the arrears of rent found by the rent control court to be due from him against the advance amount apparently seen paid against Ext.P2 and also in Ext.P1 lease deed. This exercise will be done by the learned Munsiff by 06/04/2009 and if a settlement becomes impossible, that court will ensure that delivery is effected and the respondents gets back the building before the court closes for mid-summer. Even under such a situation, it will always be open for the petitioner to approach the civil court on the strength of Exts.P1 and P2 for having the issue regarding the correct liability in terms of the arrears of rent payable for the building adjudicated by that court. Hand over copy today itself. PIUS.C.KURIAKOSE JUDGE M.C. HARI RANI JUDGE WPC.No.10319/09 4 sv.