IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 8TH APRIL 2011 / 18TH CHAITHRA 1933 OP (RC).No. 1269 of 2011(O) --------------------------- AGAINST THE ORDER IN EP 26/2005 IN RCP.8/2003 of MUNSIFF COURT, THALIPARAMBA .................... PETITIONER ----------------------- MAHESAN, S/O.K.C.GOPALAN, AGED 50 YEARS, GOKULAM, P.O.KOLACHERI, KANNUR DISTRICT. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.K.R.AVINASH (KUNNATH) RESPONDENT(S): --------------- 1. PANIKKARAKATH PARAKKADAVATH AYISHA, W/O.LATE KADERKUTTY, RESIDING AT 7TH MILE, TALIPARAMBA AMSOM, TRICHAMBARAM DESOM, KANNUR-670 141. 2. MUSTHAFA, S/O.LATE KADERKUTTY, RESIDING AT PUSHPAGIRI, KUTTIYERI AMSOM, KANNUR-689101. 3. KADEEJA, D/O.LATE KADERKUTTY, RESIDING AT PUSHPAGIRI, KUTTIYERI AMSOM, KANNUR-689101. 4. ABDUL RAHIMAN, S/O.LATE KADERKUTTY, RESIDING AT KAKANCHAL, TALIPARAMBA AMSOM, TRICHAMBARAM DESOM, KANNUR-670 141. 5. SHAHINA, D/O.LATE KADERKUTTY, RESIDING AT 7TH MILE, TALIPARAMBA AMSOM, TRICHAMBARAM DESOM, KANNUR-670 141. 6. SHAMSUDHEEN, S/O.LATE KADERKUTTY, RESIDING AT 7TH MILE, TALIPARAMBA AMSOM, TRICHAMBARAM DESOM, KANNUR-670 141. 7. SHAJUDHEEN, S/O.LATE KHADERKUTTY, -DO- -DO- 8. SAUDABI, D/O.LATE KADERKUTTY, -DO- -DO- 9. ABDUL SAMAD, S/O.KADERKUTTY, -DO- -DO- 10. SHABEER, S/O.LATE KAHDERKUTTY, -DO- -DO- 11. C.RAMESH, KALLIANI STUDIO, MAHATMA COMPLEX, NATIONAL HIGHWAY, TALIPARAMBA, KANNUR DISTRICT. ADV. SRI.P.U.SHYLAJAN THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 08/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ O.P.(RC).No.1269 OF 2011 ------------------------ Dated this the 8th day of April, 2011 JUDGMENT Pius C.Kuriakose, J. The petitioner in this original petition under Article 227 is the claim petitioner before the Execution Court. The proceedings before the Execution Court were in execution of an eviction order passed by the Rent Control Court, Thaliparamba in RCP No.8/2003. The claim petition E.A. No.151/2010 in EP No.26/2005 was filed by the petitioner on the premise that the petitioner was having tenancy rights over the building and that the Rent Control Court passed the eviction order without arraying the petitioner as a party. The Execution Court dismissed the claim petition. The petitioner readily applied for a certified copy of the order on the claim petition intending to prefer an appeal against that order. The grievance of the petitioner is that even OPRC.No.1269/2011 2 as the copy application was pending, the Execution Court ordered delivery and evicted the petitioner from the building. 2. On considering the averments in the original petition and hearing the submissions which were addressed before us by Sri.A.Mohamed Mustaque, learned counsel for the petitioner for admission, we passed the following interim order; “It is submitted before us by Adv.P.U.Shylajan that yesterday i.e. 28/3/2011 itself the petitioner was evicted and the case stands posted tomorrow i.e. 30/3/2011 for recording delivery. Considering the above submissions we direct the Registry to post the O.P. We also direct the Execution Court not to record the delivery for a period of two days. Call tomorrow”. 3. On 30/3/2011, we heard both sides for some time. The argument mainly addressed before us by Mr.Mohamed Mustaque was that the tenancy in respect of the building in question is governed by a written rent chit dated 20/2/1992 and that as per that written deed, the tenancy given is a tenancy in common to OPRC.No.1269/2011 3 the petitioner and his brother Rameshan who alone is a respondent in the Execution Petition. 4. The response of Mr.Shylajan, learned counsel for the landlords was that the tenancy in question is an oral one and that the rent chit relied on by the petitioner can only be a concocted or fabricated document. 5. The petitioner has filed I.A. No.6658/2011 seeking reception of documents Exts.P5 to P6 series. Ext.P6 series of documents are copies of rent receipts. These documents are seen issued by the landlords in favour of the petitioner also. Having made glance through the documents produced by the petitioner, we feel that the petitioner has an arguable case in the appeal which he may prefer against the order of the Execution Court dismissing his claim petition. It appears to us that the respondents/landlords were a little hasty in seeking and obtaining delivery of the petition schedule premise. In the present jurisdiction we are not inclined to decide the issue between the parties finally. We feel that ends of justice will be sub served if we direct the interim order already issued by us to continue and pass further orders for preserving the corpus i.e. subject OPRC.No.1269/2011 4 building, to be dealt with on the basis of the decision to be taken by the court of appeal in the appeal which the petitioner has assured us will be filed against the order dismissing the claim Petition. 6. The result of the above discussion is that the original petition is disposed of issuing the following directions; i). The Execution Court will record the delivery of the RCP schedule building, only after the judgment is delivered in the appeal to be preferred by the petitioner against the order of the Execution Court in E.A. No.151/2010. ii). The respondents 1 to 10 will maintain the status quo as obtaining today as regards the RCP schedule building and all movables and fixtures therein till the appeal against the order in EA No.151/2010 is disposed of . Iii). Respondents 1 to 10 are restrained by an order of injunction from letting out or otherwise disposing of the RCP schedule building and from inducting anybody else into that building till the appeal against EA No.151/2010 is disposed of. iv). The petitioner will file appeal if any against the order in E.A. No.151/2010 at least by the day the court reopens after OPRC.No.1269/2011 5 Mid Summer Holidays. Once the appeal is filed as above, the court of appeal will expedite matters and ensure that the appeal is disposed of after complying with all the formalities within three months of the reopening day. It is open to the Appellate Court to pass appropriate orders in accordance with law on any application for redelivery which may be filed by the petitioner before that court. We observe that the appellate court will not be unduly influenced by any observation contained herein above. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk OPRC.No.1269/2011 6 PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk