IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WP(C).No. 5013 of 2009(V) ------------------------------------- OS.34/2007 of MUNSIFF COURT,ATTINGAL .................... PETITIONER(S): ----------------------- GANESAN, S/O.LATE THANKAPPAN ACHARY, SINDU VILASOM, AMC XII/77, NEAR ATTAKULAM, ATTINGAL. BY ADV. MR.J.JAYAKUMAR RESPONDENT(S): ------------------------- 1. ARSHADA, W/O.ABDUL RASHEED, SHABEER NIVAS, T.C.NO.29/625, KAITHAMUKKU, SEEVELI NAGAR, THIRUVANANTHAPURAM. 2. ABDUL RASHEED, H/O.ARSHADA, SHABEER NIVAS, T.C.NO.29/625, KAITHAMUKKU, SEEVELI NAGAR, THIRUVANANTHAPURAM. R1 & R2 BY ADV. MR.S.ABU BAKER KUNJU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.5013/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMPROMISE DECREE DTD. 12.3.07 IN OS. 34/07 PASSED BY MUNSIFF COURT, ATTINGAL. P2:- COPY OF THE INJUNCTION PETITION FILED BY THE PETITIONER IN EP. 69/07 IN OS. 34/07 PASSED BY MUNSIFF COURT, ATTINGAL. P3:- COPY OF THE NOTICE DTD. 2.11.07 ISSUED BY THE IST RESPONDENT. P4:- COPY OF THE COUNTER FILED BY THE RESPONDENTS IN EP. 69/07. P5:- COPY OF THE ORDER DTD.13.3.09 IN EA. 168/07 EP. 69/07 IN OS. 34/07 PASSED BY MUNSIFF COURT, ATTINGAL. P6:- COPY OF THE COMMISSIONER'S REPORT. P7:- COPY OF THE ORDER DTD. 30.8.08 IN EP. 69/07 IN OS. 34/07 PASSED BY MUNSIFF COURT, ATTINGAL. P8:- COPY OF THE ORDER DTD. 23.9.09 IN EP. 69/07 IN OS. 34/07 PASSED BY MUNSIFF COURT, ATTINGAL. P9:- COPY OF THE OBJECTION FILED BY THE PETITIONER ON EXT.P6 COMMISSIONER'S REPORT. RESPONDENT'S EXHIBITS R2(a):- SERIES PHOTOCOPIES OF THE DEMAND NOTICE NUMBER 1569, 1570, 1571, 1572 AND 1573 DTD. 1.10.07 OF ATTINGAL MUNICIPALITY. R2(b):- COPY OF THE SANCTION LETTER DTD. 6.3.07 OF STATE BANK OF INDIA. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.5013 OF 2009 -------------------------- Dated this the 18th day of September 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for records leading to issuance of Exts.P7 and P8 order passed by the Munsiff Court, Attingal and set aside Exts.P7 and P8 ordersof the court below. ii) Direct the Munsiff Court, Attingal to allot shop No.9 as per Ext.P6 commission's report to the petitioner. iii) Grant such other relief that this Hon'ble Court deem fit and proper in the circumstances of the case. 2. Petitioner is the decree holder in E.P No.69 of 2007 in O.S No.34 of 2007 on the file of the Munsiff Court, Attingal. Petitioner had filed W.P.(C).No.5013 OF 2009 Page numbers the above suit seeking a decree of permanent prohibitory injunction to restrain respondent, his landlords from forcibly evicting him from the tenanted premise. The parties resolved the disputes by entering into a compromise and incorporating the terms of the compromise a decree was passed in the suit. Compromise decree provided for reallotment of a shop room with sufficient convenience to the petitioner / tenant after surrender of the room in his occupation for reconstruction of the building by the landlords. Pursuant to passing of that decree the petitioner / tenant surrendered the room in his occupation and the building was reconstructed. The landlords issued a notice to the tenant after completion of the reconstruction to elect one of the rooms in the new building subject to payment of rent. Though such notice was served, canvassing a case that room was not allotted, petitioner / tenant applied for executing a decree. An advocate commissioner appointed by the court conducted a local inspection W.P.(C).No.5013 OF 2009 Page numbers over the newly constructed building and filed a report and plan. The learned Munsiff after considering the materials produced, and hearing the counsel on both sides passed Ext.P7 order directing the landlords to provide room No.6 identified in the plan prepared by the commissioner to the petitioner / tenant with the direction that either of the party can move before the Rent Control Court for fixation of fair rent. The room allotted is inconvenient and not fit for his business is the grievance of the petitioner / tenant. So much so, challenging Ext.P7 order, the writ petition has been filed invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. The learned counsel for the petitioner submitted that the room ordered to be given to the tenant under Ext.P7 order is situate on the extreme rear side of the newly constructed building. It W.P.(C).No.5013 OF 2009 Page numbers does not have the similar convenience enjoyed by him previously in the old building. So much so, the tenant must be provided a convenient room in the new building in tune with the compromise decree passed in the case is the submission of the counsel. The room allotted is having sufficient convenience, two rooms facing the road had already been let out and the construction had been put up expending a lot of sum availing a loan are the circumstances canvassed by the learned counsel for the landlords to contend no interference with Ext.P7 order passed by the court below is warranted in the facts and circumstances of the case. 4. Perusing Ext.P7 order with reference to the materials produced in the writ petition and taking note of the submissions made by the counsel on both sides, I find that the respondents / landlords got vacant possession of the tenanted premises in a suit filed by the tenant seeking a decree of injunction from his forcible eviction W.P.(C).No.5013 OF 2009 Page numbers agreeing to provide him a room in the reconstructed building, with sufficient convenience required for carrying out his business. Previously the tenant occupied a room facing the road in the old building. Needless to point out in a business center the shop room facing the road will have more advantage than the one situate on the rear side far away from the road. Not only that no room having road frontage in the new building was provided to the tenant the landlords wanted to compel him to occupy a room on the extreme rear side of the reconstructed building. But in the counter filed to the execution petition of the tenant, a copy of which is produced as Ext.P4, it is seen the landlords have expressed their willingness to provide him any room in the newly constructed building subject to payment of the rent applicable. In the counter affidavit filed by the second respondent it has been stated thus: “the plaintiff is welcome to take any room on rent on the above said basis as agreed to in compromise petition in W.P.(C).No.5013 OF 2009 Page numbers O.S No.34/2007 provided (since he is prepared) to take the shop room on the present rate of rent”. When that be the voluntariness expressed in the counter affidavit by the landlords, it is seen subsequently they were not prepared to provide him a room of his choice in the reconstructed building. Having regard to the facts and circumstances involved, I find that the matter has to be examined afresh by the court below with reference to the compromise decree passed in the suit and also the voluntariness expressed by the landlords in their counter affidavit to provide any room in the reconstructed building to the choice of the petitioner / tenant subject to payment of fair rent. Since the two rooms on the front side had already been let out to others, the court is directed to exclude those two rooms in considering which one of the remaining rooms is to be provided to the tenant. Ext.P7 order is set aside. Court below shall also fix a reasonable sum, tentatively, as the rent, to be paid by the petitioner / tenant, W.P.(C).No.5013 OF 2009 Page numbers for occupation of a room in the building having regard to the prevailing rent fro similar rooms in the locality, but such fixation of rent shall be subject to determination of fair rent on the application by any of the parties before the Rent Control Court. The court below shall dispose the proceedings as expeditiously as possible at any rate within a period of three months from the date of receipt of a copy of this judgment. Ext.P7 order is set aside directing the court below to dispose the proceedings taking note of the observations made above and in accordance with law. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv