IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WP(C).No. 12952 of 2010(O) -------------------------- OS.NOS. 63/2010 & 72/2010 of MUNSIFF COURT,VARKALA .................... PETITIONER(S): --------------- ABDUL SHAJAR,S/O.ASHARAF,ARAYALUVILA HOUSE, KURAKKANNI,VARKALA. BY ADV. SRI.M.R.RAJESH SMT.A.K.PREETHA RESPONDENT(S): --------------- ABDUL SALAM,S/O.ABDUL MAJEED, YAMUNA, MUNDAYIL, VARKALA. ADV. SRI.G.S.REGHUNATH ADV. SMT.M.HEMALATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE PLAINT IN OS NO.63 OF 2010 OF MUSNIFF COURT VARKALA EXT.P2 - TRUE COPY OF THE IA NO.403 OF 2010 IN OS NO.63 OF 2010 OF MUNSIFF COURT VARKALA EXT.P3 - TRUE COPY OF THE OBJECTION TO EXT.P2 EXT.P4 - TRUE COPY OF THE INTERIM INJUNCTION DATED 24.2.2010 IN EXT.P2 EXT.P5 - TRUE COPY OF THE PLAINT IN OS NO.72 OF 2010 OF MUNSIFF COURT VARKALA EXT.P6 - TRUE COPY OF IA NO.453 OF 2010 IN OS NO.72 OF 2010 OF MUNSIFF COURT VARKALA EXT.P7 - TRUE COPY OF THE COMMISSION REPORT IN EXT.P1 SUIT EXT.P8 - TRUE COPY OF THE ADVANCE PETITION IA NO.723 OF 2010 IN OS NO.72 OF 2010 EXT.P9 - TRUE COPY OF THE COMMISSION APPLICATION IA NO.723 OF 2010 IN OS NO.72 OF 2010 EXT.P10 - TRUE COPY OF THE REVIEW PETITION IA NO.764 OF 2010 IN OS NO.72 OF 2010 EXT.P11 - TRUE OPY OF THE REVIEW PETITION FILED BY THE PETITIONER DATED 8.4.2010 IN OS NO.72 OF 2010 EXT.P12 - TRUE COPY OF THE ADVANCE PETITION FILED BY THE PETITIONER DATED 8.4.2010 IN OS NO.72 OF 2010 EXT.P13 - TRUE OPY OF THE CARBON COPY APPLICATION FILED BY THE PETITIONER DATED 8.4.2010 IN OS 72 OF 2010 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.12952 of 2010 -------------------------------------- Dated this the 17th day of May, 2010. JUDGMENT Petitioner and respondent are plaintiffs in O.S.Nos.63 of 2010 and 72 of 2010 respectively of the court of learned Munsiff, Varkala. According to the petitioner, shoproom which is the subject matter of the suits referred to above was in the possession of defendant No.4 therein as a tenant but, he is attempting to assign the tenancy/transfer possession of the room under a sub-lease to defendant No.5 therein. Petitioner filed Ext.P2, application No.403 of 2010 for an order of temporary injunction against such assignment of tenancy/transfer of possession. Defendant No.5 filed O.S.No.72 of 2010 against the petitioner (plaintiff in O.S.No.63 of 2010) for a decree for permanent prohibitory injunction against his forcible eviction from the shoproom claiming that since about 18 years he has been running a hotel in the said room the same having been taken on rent from predecessor-in-interest of the petitioner/plaintiff in O.S.No.63 of 2010. He claimed that defendant Nos.4 and 5 referred to in O.S.No.63 of 2010 are not different persons but, the same person, himself. In O.S.No.72 of 2010, respondent/plaintiff filed Ext.P6, application No.453 of 2010 for an order of temporary injunction against his forcible eviction. Those applications were heard by the learned Munsiff and an interim order of status quo was issued on 29.03.2010 as per which petitioner/plaintiff in O.S.No.63 of 2010 stands prevented from inducting others into possession of the said room or alienating WP(C) No.12952/2010 2 the same. Learned Munsiff observed that for the final disposal of the applications (Exts.P2 and P6) evidence is required and posted the applications for enquiry to 19.05.2010. In O.S.No.72 of 2010, even before the learned Munsiff passed the order of status quo on 29.03.2010 an Advocate Commissioner had inspected the property and submitted the report stating that since the shoproom was seen locked and the petitioner/plaintiff in O.S.No.63 of 2010 was not available with the key the shoproom could not be opened and inspected. That ofcourse was a emergent commission, as contended by learned counsel for petitioner, without notice to his client. Later came Ext.P8 application at the instance of respondent/plaintiff in O.S.No.72 of 2010 to advance hearing of Ext.P9, application for issue of commission and to dispose of the same. Those applications were filed on 03.04.2010 and the same were posted on 05.04.2010. On 05.04.2010 respondent/plaintiff in O.S.No.72 of 2010 filed Ext.P10, application No.764 of 2010 to review the order dated 29.03.2010 to maintain status quo. On the same day Exts.P8 and P9, applications were allowed and the very same Advocate Commissioner was deputed to inspect the shoproom. That order was passed dispelling the objection raised by the petitioner/plaintiff in O.S.No.63 of 2010, as learned counsel for petitioner now tells me. 2. Now the grievance of the petitioner/plaintiff in O.S.No.63 of 2010 is that as per order on Ext.P9, application the Advocate Commissioner after inspection and taking inventory has to return the key of the shoproom to the WP(C) No.12952/2010 3 court which in effect defeated the order of status quo issued by the learned Munsiff on 29.03.2010. Learned counsel for petitioner/plaintiff in O.S.No.63 of 2010 submits that that part of the order has to be set aside. Learned counsel for respondent/plaintiff in O.S.No.72 of 2010 in response contends that even before the Advocate Commissioner appointed in O.S.No.72 of 2010 had been to the spot for inspection, many of the articles kept in the shoproom for conduct of the hotel and even the registers kept there have been removed by the petitioner/plaintiff in O.S.No.63 of 2010, there are several documents which would establish that respondent/plaintiff in O.S.No.72 of 2010 has been conducting hotel business in the shoproom since long before the institution of the suit. According to the learned counsel, if the key of the shoproom is handed over to the petitioner/plaintiff in O.S.No.63 of 2010, it will facilitate petitioner removing the remaining articles found in the shoproom, as may be reported by the Advocate Commissioner. 3. Now, there is an order passed by the learned Munsiff though subject to the final orders to be passed on Exts.P2 and P6 to maintain the status quo with respect to the shoproom. It is not disputed that the Advocate Commissioner appointed in O.S.No.72 of 2010 could not inspect the shoproom and report about the articles if any kept therein since it could not be opened. It is in the above circumstance that learned Munsiff has directed the Advocate Commissioner to inspect the shoproom again as per Ext.P9, application. Ext.P9 application states that Advocate Commissioner is to open the lock of the WP(C) No.12952/2010 4 shoproom, report on the matters requested for in the application, close and seal the shoproom and deposit the key to the court. Learned counsel for petitioner/plaintiff in O.S.No.63 of 2010 submits that he is prepared to produce the key of the shoproom as and when required by the Advocate Commissioner for the purpose of the inspection. That submission of the learned counsel is accepted and recorded. What remained for consideration is whether after inspection by the Advocate Commissioner the key has to be returned to the court. Having regard to the circumstances of the case and contentions urged by the learned counsel on both sides and also taking into account the undertaking of learned counsel that whatever articles as may be found by the Advocate Commissioner on such inspection will be kept intact in the said room, no other person will be inducted into possession thereof or that petitioner also will not do any act or business in the said shoproom until Exts.P2 and P6, applications are finally disposed of by the learned Munsiff I consider it not necessary to direct the Advocate Commissioner to deposit the key after inspection of the shoproom to the court concerned. Instead petitioner/plaintiff in O.S.No.63 of 2010 can be directed to keep the said key in his possession awaiting orders on Exts.P2 and P6, applications. The undertaking made by learned counsel for petitioner/plaintiff in O.S.No.63 of 2010 that whatever articles found in the shoproom as may be reported by the Advocate Commissioner will not be removed from the said room, no other person will be inducted into possession thereof or that himself will not indulge in any act or business therein is recorded WP(C) No.12952/2010 5 and accepted. Petitioner/plaintiff in O.S.No.63 of 2010 shall file an undertaking as above stated in the court below within a week from this day. Accordingly this Writ Petition is disposed of in the following lines: I. The direction contained in the order dated 05.04.2010 pursuant to Ext.P9, application where it is stated that after the Advocate Commissioner inspected the shoproom it will be sealed and key will be deposited in court is set aside subject to the following conditions: i. Petitioner/plaintiff in O.S.No.63 of 2010 shall handover key of the shoproom to the Advocate Commissioner for inspection on the Advocate Commissioner giving notice to the petitioner to do so three days before the proposed day of inspection. It is sufficient that the petitioner/plaintiff hands over the key of the shoproom at the spot of inspection. In case petitioner/plaintiff does not hand over the key inspite of such notice as aforesaid, it will be open to the Advocate Commissioner to break open the lock, inspect the shoproom, seal the same, put a new lock and deposit the key with the court after his inspection. ii. Petitioner/plaintiff in O.S.No.63 of 2010 shall file an affidavit in the trial court within three days from this day undertaking not to remove any of the articles or other materials, that may found in the shoproom and as may be reported by the Advocate Commissioner and that he shall maintain such articles and materials in the said room awaiting orders from the court below on Exts.P2 WP(C) No.12952/2010 6 and P6, applications, that the petitioner/plaintiff in O.S.No.63 of 2010 shall not until orders are passed on Exts.P2 and P6, applications hand over possession of the said shoproom to any other person or himself do any act or business in the said room. II. It is made clear that the above directions are made in this Writ Petition in challenge of order dated 05.04.2010 pursuant to Ext.P9, application. III. Learned Munsiff shall expedite the enquiry and disposal of Exts.P2 and P6, applications and if possible within one month from the date of receipt of copy of this judgment. THOMAS P.JOSEPH, Judge. cks