IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 OP(C).No. 1096 of 2011(O) -------------------------------------- IA. 10065/2010 IN OS.2207/2010 OF PRINCIPAL MUNSIFF COURT, THRISSUR .................... PETITIONER: ------------------- FIJI FRANCIS, AGED 36, S/O.MAMBULLY FRANCIS, VADAMA VILLAGE, NEYTHUMUDI DESOM, MUKUNDAPURAM TALUK, MALA P.O., PIN-680 732, THRISSUR DISTRICT. BY ADV. SRI.M.N.MANOJ, SRIA.G.UNNIKRISHNAN. RESPONDENT(S): -------------------------- RONI BABY, S/O.LATE PULLOKKARAN BABY, CHEMBUKKAVU VILLAGE, KIZHAKKE ANGADI, THRISSUR TALUK, THRISSUR, PIN-680 001 THRISSUR DISTRICT. BY ADV. SRI.P.B.KRISHNAN, SMT.GEETHA P.MENON, SRI.P.B.SUBRAMANYAN, SRI.P.B.KRISHNAN, SRI.P.B.SUBRAMANYAN. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 1096 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT AT THRISSUR PERTAINING TO THE O.S. NO.2207/2010 DATED 19/07/2010. EXT.P2: COPY OF THE COMMISSION REPORT DATED 01/08/2010 IN I.A. NO.7274/2010 IN O.S. NO.2207/2010 ON THE FILES OF THE MUNSIFF COURT AT THRISSUR. EXT.P3: COPY OF THE WRITTEN STATEMENT ALONG WITH COUNTER CLAIM FILED BY THE RESPONDENT DATED 24/09/2010 IN O.S. NO.2207/2010 BEFORE THE MUNSIFF COURT AT THRISSUR. EXT.P4: COPY OF THE I.A. NO.10065/2010 IN O.S. NO.2207/2010 BEFORE THE MUNSIFF COURT AT THRISSUR FILED BY THE RESPONDENT DATED 24/09/2010. EXT.P5: COPY OF THE COUNTER DATED 04/10/2010, FILED BY THE PETITIONER IN I.A. NO.10065/2010 IN O.S. NO. 2207/2010 BEFORE THE MUNSIFF COURT AT THRISSUR. EXT.P6: COPY OF THE ORDER PASSED BY THE PRINCIPAL MUNSIFF COURT AT THRISSUR IN I.A. NO.10065/2010 IN O.S. NO.2207/2010 DATED 08/10/2010. EXT.P7: COPY OF THE ORDER PASSED BY THE HONOURABLE DISTRICT COURT AT THRISSUR IN C.M.A.145/2010 DATED 04/02/2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1096 of 2011 ==================================== Dated this the 28th day of October, 2011 J U D G M E N T Plaintiff in O.S. No.2207 of 2010 of the court of learned Principal Munsiff, Thrissur is the petitioner before me challenging Ext.P6, order whereunder learned Munsiff acting on I.A. No.10065 of 2010 filed by the respondent directed petitioner to pay arrears of fee for being in occupation of the suit property from 19.07.2010 onwards, at the rate of Rs.8,625/- per month and continue to pay at that rate until disposal of the suit. According to the petitioner Ext.P6, order tantamount to a decree as prayed for in the counter claim and an order like Ext.P6, should not have been passed by the learned Munsiff. Learned counsel submits that petitioner has serious dispute as to the enforceability of the document styled as licence since according to the petitioner, there was a lease in favour of the father of the petitioner with understanding to pay Rs.250/- per day as rent. While so, an agreement like the deed of licence was executed for name sake stating that petitioner has to pay Rs.8,625/- per month as licence fee. It is also the claim of petitioner that at the time he took possession of the property he had paid Rs.50,000/- (Rupees Fifty thousand only) as advance O.P(C) No.1096 of 2011 -: 2 :- to the respondent and spent Rs.5 (five) lakhs for improvement of the building which is to be refunded to him as per the oral understanding between him and the respondent. 2. Learned counsel for respondent contended that execution of the deed of licence is admitted by petitioner. Also, that the property belonged to the respondent is admitted and in that situation petitioner is liable to pay charges for occupying the building in whatever capacity it be. So far as the execution of the deed of licence is admitted, until the court below otherwise finds as contended by petitioner, he is liable to pay the charges mentioned therein. 3. Petitioner does not dispute that a deed styling it as one of licence was executed between him and the respondent and the charges for occupation of the property is Rs.8,625/- per month. Petitioner is liable to pay that amount for the time being. Learned Munsiff has directed petitioner to pay the fee for occupation of property at the said rate from the date of the counter claim (19.07.2010). In that view of the matter I do not find reason to interfere with the impugned order. 4. Learned counsel for respondent submitted that though petitioner has deposited Rs.70,000/- in the trial court, a further O.P(C) No.1096 of 2011 -: 3 :- sum of Rs.68,000/- is due by way of arrears of licence fee as on this day. Learned counsel for petitioner requests that petitioner may be granted six months' time for depositing the said amount, pleading financial difficulties. Having regard to the submission made by learned counsel, I am inclined to allow that request. But petitioner shall continue to deposit the fee as directed by the learned Munsiff from this day, without fail. Original Petition is disposed of as follows: (a) Petitioner is granted six months' time from this day to pay the arrears of fee as directed by the learned Munsiff as it stands now. (b) Petitioner shall continue to deposit the fee as directed by the learned Munsiff in the impugned order from this day onwards without fail. (c) Learned Munsiff, Thrissur is directed to dispose of the suit untrammelled by the observations contained in Ext.P6, order or the observations contained in this judgment. O.P(C) No.1096 of 2011 -: 4 :- (e) Respondent is permitted to withdraw the amount in deposit and to be deposited, of course subject to the result of the suit. THOMAS P. JOSEPH, JUDGE. vsv