IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 27782 of 2009(P) -------------------------- PETITIONER(S): --------------- 1. K.K.MUHAMMED RAFI, S/O. K.K.KAREEM, 11/252, THUNNAKKARA THERUVU, KOPPAM AMSOM, PALAKKAD TALUK. 2. K.K.KAREEM, S/O. MUHAMMED KUTTY, 11/252, THUNNAKKARA THERUVU, KOPPAM AMSOM, PALAKKAD TALUK. BY ADV. SRI.T.R.RAJAN RESPONDENT(S): --------------- BHASKAR T.NAIR, S/O. S.N.NAIR, "GEETHI", RAMANATHAPURAM, KOPPAM AMSOM, PALAKKAD TALUK. BY ADV.SRI.BENOY VASUDEVAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ W.P.C.No.27782 OF 2009 ------------------------ Dated this the 9th day of October, 2009 JUDGMENT Pius C.Kuriakose, J. The tenants against whom order of eviction was passed by the Rent Control Court and the Rent Control Appellate Authority and even by this court under Ext.P1 are the writ petitioners. Under Ext.P1, the tenants were granted time till 31/3/2010 to surrender the building subject to the condition that an affidavit shall be filed within three weeks undertaking to give peaceful surrender on or before 31/3/2010 and the further condition that arrears of rent, if any, will be discharged within one month and that the rent, which falls due subsequently, will be paid as occupational charges as and when the same falls due. Affidavit as directed in Ext.A1 was filed by the petitioners on time. But, they did not make payment of the arrears of rent. Their justification was that a sum of Rs.50,000/- belonging to them is retained by the landlord as advance since the commencement WPC.No.27782/2009 2 of the lease. However, the Execution Court was not prepared to accept the explanation of the petitioners for non payment of the arrears of rent. The Execution Court has ordered delivery on the reason that the conditions imposed under Ext.P1 for granting time have not been complied with. 2. Notice was ordered to the respondent/landlord by Special Messenger and he has entered appearance through Adv.Sri.Benoy Vasudevan. 3. We have heard Sri.T.R.Rajan, learned counsel for the petitioners and Sri.Benoy Vasudevan, learned counsel for the respondent/landlord. Sri.Benoy Vasudevan conceded that a sum of Rs.50,000/- is remaining with the landlord as advance refundable at the time when the tenants vacate the building. Sri.Vasudevan submits that his client has no objection in arrears of rent and the rent which falls due subsequently being adjusted against the above amount. Under the above circumstances, allowing the writ petition we set aside the order of delivery passed by the Execution Court WPC.No.27782/2009 3 and direct the Execution Court to post the EP for delivery, if necessary, after 1-4-2010. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk