IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 OP(C).No. 1059 of 2010(O) ------------------------- AGAINST THE ORDER IN EA NOS.725/2010 & 986/23010 IN EP 114/2010 IN OS.395/2001 of I ADDL.MUNSIFF COURT,NEYYATTINKARA .................... PETITIONER (S): -------------------- KRISHNAN , S/O.SANKARAN, AGED 62 YEARS, POOVANVILAKATHU MELE PUTHEN VEEDU, VALIYAVILA , OORUTTAMBALAM PO, THIRUVANANTHAPURAM. BY ADV. SRI.J.S.AJITHKUMAR SRI.S.ASWAKUMAR RESPONDENT(S): --------------- 1. PONNU PANICKER SASIDHARAN,SOUMYA, PIRAYAKKODU PARANKIMAVILA, MARANALOOR DESOM, DO..VILLAGE, THIRUVANANTHAPURAM 695 507. 2. GEETHA, W/O.LATE VISWANAHAN,VISWANILAYAM OORUTTAMBALAM PO, MARANALOOR VILLAGE THIRUVANANTHAPURAM 695 507. 3. ARUN, S/O.LATE VISWANATHAN VISWANILAYAM OORUTTAMBALAM PO,MARANALOOR VILLAGE , THIRUVANANTHAPURAM 695 507. 4. AISWARYA, D/O.LATE VISWANATHAN, VISWANILAYAM OORUTTAMBALAM PO,MARANALOOR VILLAGE , THIRUVANANTHAPURAM 695 507. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1059 of 2010 -------------------------------------- Dated this the 9th day of December, 2010. JUDGMENT Exts.P5 and P6 passed by the learned Additional Munsiff-I, Neyyattinkara on E.A.Nos.725 of 2010 and 986 of 2010 in O.S.No.395 of 2001 are under challenge in this petition. Respondent No.1 obtained a decree for recovery of possession of property which takes in a building also from the predecessor-in- interest of respondent Nos.2 to 4. When the decree was put into execution petitioner filed E.A.No.725 of 2010 claiming that he is a tenant of one room having taken that room on rent from the deceased defendant on 09.07.1996 for a monthly rent of `.500/-. The application was purported to be filed under Rules 36 and 97 of Order XXI of the Code of Civil Procedure (for short, “the Code”) stating that respondent No.1 in the circumstances can only have symbolic delivery of the property. While E.A.No.725 of 2010 was pending, petitioner filed E.A.No.986 of 2010 seeking permission to adduce oral evidence. Learned Munsiff dismissed . A.No.986 of 2010 by Ext.P6, order stating that inspite of granting sufficient opportunity petitioner is not cared to adduce oral evidence except producing Ext.A1 series which are alleged receipts for payment of rent to respondent No.2 onwards or their predecessor as the case may be and which itself was for the period from 05.01.2010 to 10.07.2010. Later E.A.No.725 of 2010 also was dismissed on the ground that petitioner has not adduced evidence to show that petitioner is a tenant of the shoproom in question and rent receipts for the OP(C) No.1059/2010 2 period from 05.01.2010 to 10.07.2010 are not sufficient to prove the alleged tenancy on 09.07.1996. Those orders are under challenge in this petition under Article 227 of the Constitution. Learned counsel contends that same grounds stated for dismissal of E.A.No.986 of 2010 are stated for dismissal of E.A.No.725 of 2010 and hence petitioner is entitled to challenge that order under Article 227 of the Constitution. 2. I am unable to accept the contention. The order on E.A.No.725 of 2010 is subject to either an appeal or revision as the circumstances warranted. When such an appeal or revision as the case may be could be preferred challenging order on E.A.No.725 of 2010 necessarily petitioner is entitled to challenge refusal to grant permission to adduce further evidence as prayed for in E.A.No.986 of 2010. Allowing E.A.No.986 of 2010 would not re-open the order on E.A.No.725 of 2010. Hence the proper remedy of the petitioner is to challenge the order on E.A.No.725 of 2010 as provided under law. This petition is dismissed without prejudice to the right if any of the petitioner to challenge order on E.A.No.725 of 2010 as provided under law. THOMAS P.JOSEPH, Judge. cks