IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 WP(C).No. 16346 of 2009(O) ------------------------------------ AS.79/2009 of DISTRICT COURT, THALASSERY OS.121/2007 of PRL.S.C.,THALASSERY ................................................. PETITIONER(S): ----------------------- M.K.USMAN, S/O.KUNHARA, RAHMATH MANZIL, CUSTOMS ROAD, THALASSERY. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT(S): ----------------------- P.P.SAKEENA, W/O.UMMER, 'UMMERS', MOONAMPEEDIKA, NEAR MERUVAMBAYIL MOSQUE, MATTANNUR ROAD, MERUVAMBAYI, KANNUR DISTRICT. ADV. SRI.C.P.PEETHAMBARAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.16346 of 2009 - O --------------------------------- Dated this the 24th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: “i) To call for the records connected with the case. ii) To stay the execution proceedings in E.P.No.81/2009 until the District Judge, Tellicherry consider and pass orders in I.A.NO.829/2009 in A.S.No.79/2009 pending before the District Court, Tellicherry. iii) Issue a writ of mandamus or other appropriate writ or order directing the District Court, Tellicherry to dispose of I.A.NO.829/2009 in A.S.No.79/2009 and thereafter consider the appeal along with the stay petition at the earliest.” 2. Petitioner is the plaintiff in O.S.No.121/2007 on the file of the Sub Court, Tellicherry. Admittedly, petitioner is the tenant of a building under the respondent and that building was leased out on an agreement by which the petitioner had advanced a sum of Rs.1,56,500/- which was to be repaid on his surrender and W.P.(C).No.16346 of 2009 - O 2 vacation of the building. Petitioner filed the above suit seeking refund of that amount alleging that the building is in a dilapidated condition and as a tenant it is not beneficial for him to continue in occupation of that building. A claim was also made for refund of the sum expended by him towards repairs effected in the building. After trial, learned Sub Judge rendered a judgment decreeing the suit in favour of the plaintiff upholding his claim for refund of the security amount but negativing the claim raised towards the repairs carried out in the building. The petitioner aggrieved to the extent of denial of the relief claimed towards refund of the sum for the repairs, filed an appeal, initially before this Court which was returned since the appeal in view of the pecuniary jurisdiction, ought to have been filed before the District Court. After return of the appeal from this Court, it was re- presented before the District Court, on account of which some delay had occurred in presenting the appeal before the District Court. Petitioner moved an application for condoning the delay in presenting the appeal which is stated to be under enquiry. Meanwhile, the respondent/landlord after expiry of the period W.P.(C).No.16346 of 2009 - O 3 provided in the decree for surrender of the building by the tenant, moved for execution of the decree depositing the security amount and, at that stage, petitioner has approached this Court with the petition seeking for the relief aforementioned invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. The learned counsel for the respondent submitted that the landlord is prepared to furnish security for the amount claimed towards repair charges alleged to have been effected by the tenant in the building to get vacant possession of the building. It is fairly submitted by the learned counsel for the respondent that he does not stand in the way of condoning the delay in entertaining the appeal by the District Court as it is a case of wrong presentation of the appeal before a different forum. Submission so made by the counsel for the respondent is recorded. I hope that the apprehension raised by the petitioner would be relieved by the submission so made by the counsel for the respondent. The respondent, landlord, shall furnish security W.P.(C).No.16346 of 2009 - O 4 for the sum alleged to have been spent by the tenant towards repair of the building before the court where the appeal filed by the tenant is now pending. On furnishing of the security, as undertaken by the respondent, in respect of the claim towards repair charges claimed by the tenant in the appeal it is open to the landlord to get vacant possession of the building from the tenant in execution of the decree. The learned counsel for the petitioner/tenant submitted that a breathing time may be given to the tenant even if such security is furnished to vacate from the building. It is submitted that the tenant is putting up a construction to shift his residence which may require nearly two months, and further the rainy season may also cause some delay in completing the construction. 5. Having regard to the submissions made, I direct the execution court to grant two months time from the date of this order, even if security is furnished by the landlord before the District Court as directed above, to enable the tenant to surrender the building and give vacant possession to the landlord. W.P.(C).No.16346 of 2009 - O 5 The learned District Judge is also directed to hear and dispose of the appeal, if the delay condonation petition is allowed, within six months from the date of passing of the order on the delay petition. The writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-