IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 WP(C).No. 15422 of 2009(W) -------------------------- RCA.5/2007 of D.C.& SESSIONS COURT,THODUPUZHA RCP.1/2003 of MUNI-MAGI.COURT,THODUPUZHA .................... PETITIONER(S): --------------- NEELAKANDA RAJU, S/O.NARAYANAN NAIR, PADMAVILASAM HOUSE, MANAKKAD P.O., THODUPUZHA. BY ADV. SRI.T.RAJESH RESPONDENT(S): --------------- SIVAN, S/O.GOPALAN, AGED 55 YEARS, ANCHAPARA HOUSE, MUTHALKODAM KARA, THODUPUZHA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - W.P.(C) .No.15422 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of June, 2009 JUDGMENT Pius.C.Kuriakose, J. It appears to us that the petitioner landlord is voicing a genuine grievance. An order of eviction was passed by the authorities under the Rent Control Act in his favour on the grounds of arrears of rent (Section 11(2)(b) and additional accommodation (Section 11(8). This court in revision passed Ext.P2 order staying the execution petition till 31/07/2009. In fact this court became inclined to stay the execution petition till 31/07/2009 on the basis of a submission made on behalf of the tenant that the tenant is willing to vacate the premises within six month's time. This court closed the revision petition granting six month's time to the tenant to vacate the premises incorporating a condition that the tenant shall file an affidavit and undertaking before the execution court that he will vacate the premises on or before 31/07/2009. A further condition was also incorporated by this court that the tenant shall continue to pay the rent in terms of the order of WPC.No.15422/09 2 eviction confirmed by the Rent Control Appellate Authority. 2. The grievance of the petitioner is that the respondent tenant never filed the affidavit and undertaking as directed by this court before the Rent Control Court and that he never paid the arrears of rent as found under the eviction order nor the rent which fell due subsequently. On 27/05/2009, when it was brought to the notice of the execution court that the tenant judgment debtor has not filed the affidavit or paid the rent in terms of the order of this court dated 23-02-2009, that court passed the following order : “ Decree Holder produced the order of Hon'ble High Court in Rent Control Revision 10 of 09. Rent Control Revision was closed granting 6 months time to the judgment debtor to vacate the premises subject to the condition that the judgment debtor shall file affidavit and undertaking before the Rent Control Court that he will vacate the premises on or before 31-07-2009. Counsel for decree holder pointed that no such affidavit is filed. Affidavit and undertaking are to be filed not before the execution court before Rent Control Court more over no time limit is specified in the order of this Hon'ble High WPC.No.15422/09 3 Court for filing affidavit. Hence I am adjourning the date of 31-07-2009. Judgment Debtor absent and no representation . Judgment debtor is set ex parte.” 3. It is true that this court had not specified the time limit within which the tenant shall file an affidavit and undertaking before the Rent Control Court. However had the learned Munsiff bothered to read through Ext.P2 carefully, it would not have been difficult for him to understand that this court expected the tenant judgment debtor to file the affidavit and undertaking immediately and also to pay the rent in terms of the order of eviction confirmed in appeal. We are at a loss to understand why even in the absence of the judgment debtor and after setting him ex parte, the learned Munsiff has given the judgment debtor the relief of getting time till 31/07/2009 which this court wanted to give him only on compliance of the conditions indicated herein before. 4. We are told that the Principal Munsiff ( the court which is empowered under Section 14 of the Rent Control Act to execute the orders of the Rent Control Court) himself was the officer who passed the order of eviction in his capacity as the rent control court. Thus it WPC.No.15422/09 4 would not have been difficult for the learned Munsiff to verify the records of the Rent Control Court to find out whether the directions of this court regarding filing of the affidavit had been complied with. At any rate in the absence of the Judgment debtor who was set ex parte, the execution court should have accepted the case of the decree holder landlord that the condition for payment of arrears was violated. 5. Under the above circumstances, we are inclined to dispose of the writ petition at this stage itself even without notice to the respondent judgment debtor issuing the following directions; The Principal Munsiff, Thodupuzha is directed to verify the records of the Rent Control Court, Thodupuzha and if the verification reveals that the respondent judgment debtor has not filed the affidavit as directed by this court in Ext.P2 and further that the arrears of rent as directed in Ext.P2 has not been paid against proper receipts, that court will prepone the execution petition by notice publication and dispose of the execution petition in accordance with law. It is needless to mention that since the tenant judgment debtor is absent and there is no contest by him, the execution court will have to order and effect delivery in the WPC.No.15422/09 5 absence of any order of stay from any superior court. Needful in compliance with the above direction will be done by the learned Munsiff at the earliest and at any rate within three weeks of receiving copy of this judgment. PIUS.C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. WPC.No.15422/09 6