IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 OP (RC).No. 2035 of 2011(O) --------------------------- PETITIONER ------------------------------ SRI.A.PRASAD, S/O.ATHIKKOT MADHAVAN, "AKSHAYA", KOVILAKOM ROAD, FEROKE, KOZHIKODE. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): --------------- THAYYIL CHANDRASEKHARAN, THAYYIL HOUSE, FEROKE AMSOM, NALLOOR DESOM, P.O.FEROKE, KOZHIKODE-673 001. ADV. SRI.V.V.SURENDRAN FOR R-1 SRI.P.A.HARISH FOR R-1 THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 09/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX: EXT.P1 TRUE COPY OF THE COMMON JUDGMENT IN OS.279/08 & OS.587/08 PASSED BY THE II ADDL. SUB JUDGE, KOZHIKODE. EXT.P2 TRUE COPY OF THE INTERIM ORDER IN A.S. NO. 155/2010 AND A.S. NO. 156/2010 PASSED BY THE DISTRICT COURT, KOZHIKODE. EXT.P3 TRUE COPY OF THE REPORT DT. 5-11-07 SUBMITTED BY THE VILLAGE OFFICER EXT. P4 ORDER DT. 7-6-2011 PASSED BY ACCOMMODATION CONTROLLER & TAHSILDAR, KOZHIKODE. EXT.P5 TRUE COPY OF THE PHOTOGRAPHS PERTAINING TO THE DISPUTED BUILDING. PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- OP(RC). No. 2035 of 2011 ----------------------------------------------- Dated this the 9th day of August, 2011 J U D G M E N T Pius C.Kuriakose, J. Under challenge in this writ petition filed under Article 227 (Article 226?) is Ext.P4 order passed by the Accommodation Controller. Under Ext.P4 the Accommodation Controller has permitted the respondent (the petitioner before the Accommodation Controller) to carry out repairs of the building in question at a cost of Rs.19,600/- with a rider that the above amount will be adjusted towards the rent due in respect of the building. Ext.P4 is challenged by the petitioner landlord mainly on the reason that the same will defeat the interest of the petitioner in O.S. No. 279 of 2008 and 587 of 2008 which is presently pending in appeal before the District Court, Kozhikode. It was submitted by Mr. Salil Narayanan, learned counsel for the petitioner that in one of the above suits a decree of declaration has been passed in favour of the petitioner to the effect that the tenancy in question no longer subsists as the subject matter of the tenancy has ceased to exist. Our attention was drawn by Sri. Salil Narayanan to Ext.P5 photographs. Our attention was also drawn to Ext.P2 order passed by the District Court, Kozhikode in A.S. No. 156/10. It was submitted by Salil Narayanan on the strength of the photograph that the building has fallen to the ground completely. On the basis of Ext.P2 it was submitted that the appellate court who considered the appeal preferred by the respondent tenant has directed both sides to maintain status quo. It was argued that allowing Ext.P4 to be implemented will amount to permitting the respondent to violate Ext.P2. 2. Sri. V.V. Surendran, learned counsel for the respondent submitted that Ext.P4 has been passed by the Accommodation Controller on the basis of report and estimate submitted by the Village Officer and the Deputy Tahsildar who were deputed by the Accommodation Controller to prepare such reports and estimates. He also submitted that it was admitted before the Accommodation Controller that the building requires repairs and this was why Ext.P4 came to be passed. He pointed out that though the Village Officer and the Deputy Tahsildar estimated the cost of repairs at Rs.55,000/- and Rs.60,000/- respectively, the Accommodation Controller has very cautiously permitted the tenant to expend only Rs.19,600/- which was the original estimate of the tenant himself. Ext.P4 cannot be said to be vitiated to the extent of being corrected under the constitutional jurisdiction of this Court. 3. Having anxiously considered the rival submissions addressed at the Bar, we are of the view that Ext.P4 atleast prima facie evidenced Ext.P2 order directing maintenance of status quo. If Ext.P5 series of photographs reveals the present condition of the building in question, then the submission of the counsel for the petitioner that what the building requires is not repairs but is pucka reconstruction or restoration will have to be accepted. We are not inclined to decide the issue finally. We are of the view that the issue should be reconsidered by the Accommodation Controller applying his mind as to the present condition of the building in question and also as to the operation of Ext.P2 order passed by a competent civil court after hearing both sides in a litigation which is being waged between the parties for more than five years now. 4. Accordingly, we set aside Ext.P4 and direct the Tahsildar and Accommodation Controller, Kozhikode to reconsider and pass fresh orders in RC. No. 8 of 2007 keeping in mind the observations contained herein above and taking into account the present condition of the building and currency of Ext. P2 order directing maintenance of status quo. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) ksv/-