IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 WP(C).No.36771 of 2008(C) -------------------------- OS.120/2007 of M.C., PARAPPANANGADI .................... PETITIONER: --------------- MOHAMMED, S/O ADATTIL KUNHIPOCKER HAJI, CHANGUVETTY, KOTTAKKAL AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRIC.M.MOHAMMED IQUABAL RESPONDENT: --------------- THOOMPATH EDAPPANATT MOOSAKUTTY MASTER, S/O MOIDEENKUTTY, CHANGUVETTY, POST KOTTAKKAL, MALAPPURAM DISTRICT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.36771 of 2008 ------------------------------------------------ Dated this the 12th day of December, 2008 JUDGMENT Heard the counsel for the petitioner. 2. The petitioner is the second defendant in O.S.120/07 on the file of the Munsiff's Court, Parappanangadi. That was a suit filed by the respondent for recovery of possession of plaint 'A' schedule property. It is submitted that a joint written statement was filed by the defendants including the petitioner claiming permanency of tenancy under Section 106 of the Land Reforms Act claiming that the transaction involved was a commercial lease and that issue No.3 was also framed to the following effect:- “Whether the entrustment is a commercial lease which comes under Section 106 of the Land Reforms Act.” W. P. C. No.36771 of 2008 -2- 3. The grievance of the petitioner is that while the said issue remained unanswered by following the procedure under the Land Reforms Act, the suit was listed to 26/11/08. According to the counsel for the petitioner, he filed I.A.2086/08 to appoint a Commissioner and I.A.2085/08 to remove the suit from the list and the court below being satisfied of the necessity to allow those applications allowed those applications vide Ext.P6 common order dt.29/11/08 on those I.As. but imposing a condition that the petitioner has to deposit Rs.5,000/- to compensate the inconvenience caused to the respondent. The said portion of the Ext.P6 order is assailed on the ground that the condition so attached is un- conscionable and it is beyond the ability of the petitioner to comply with and that the amount has therefore, to be reduced. W. P. C. No.36771 of 2008 -3- 4. Having considered the submissions of the counsel for the petitioner, I am of the view that the cost ordered is much on the high side. However, I am not of the view that notice has to be issued to the respondent before modification is made in the order as cost is something which is to be ordered in the discretion of the court and not after consulting the opposite party. 5. In the result, allowing this Writ Petition in part, I order that the cost ordered by the court below vide Ext.P6 shall stand reduced to Rs.1,000/-. The said amount shall be paid/deposited by the petitioner positively within one week from today. In case of failure, he will have to suffer the consequences that may follow which is to be decided by the court below. W. P. C. No.36771 of 2008 -4- 6. This Writ Petition is disposed of with the above directions. Issue copy of this judgment to the counsel for the petitioner urgently. K.P.BALACHANDRAN, JUDGE kns/-