IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 FAO.No. 175 of 2010() --------------------- I.A.NO.6005/08 IN AS.322/2007 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT/PETITIONER ------------------------------------ MURALEEDHARAN, AGED 40, S/O.MATTATHUPARAMBIL DAMODHARAN, KOORKANCHERY VILLAGE, VADUKKARA DESOM, THRISSUR TALUK, THRISSU DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT/ RESPONDENT: ------------------- THE KOORKANCHERY SERVICE CO-OPERATIVE BANK LTD. NO.36, KOORKANCHERY P.O., THRISSUR, REP.BY ITS SECRETARY. ADV. SRI.M.V.BOSE FOR R1 SRI.VINOD MADHAVAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.2419/2010 IN F.A.O.NO.175/2010 -------------- DISMISSED 18/8/2010 Sd-/ HARUN-UL-RASHID, JUDGE. True Copy HARUN-UL-RASHID,J. ------------------------------ F.A.O.NO.175 OF 2010 ------------------------------- DATED THIS THE 18TH DAY OF AUGUST, 2010 JUDGMENT Defendant in O.S.No.20/2003 on the file of the Munsiff's Court, Thrissur is the appellant. The appeal is directed against the order passed in I.A.No.6005/2008 in A.S.No.322/2007 on the file of the IInd Additional Sub Court, Thrissur. The suit was filed for eviction and for recovery of arrears of rent. The trial court decreed the suit ordering eviction. It is also ordered that the plaintiff is entitled to get vacant possession of the plaint schedule property within one month from the date of the decree and that the arrears of rent can be adjusted towards the security amount of Rs.75,715/-. On getting vacant possession of the building, the balance security amount if any, should be given to the defendant. 2. The appeal filed by the appellant herein was dismissed for default. The appellant filed I.A.No.6005/08 -2- F.A.O.No.175/2010 seeking re-admission/re-hearing of the appeal dismissed for default. The Appellate Court allowed the I.A. on condition that the appellant shall deposit 50% of the arrears of rent on 30/7/2007 and also cost of Rs.500/-. The appellant did not comply with the conditions imposed in the order dated 6th July, 2009 passed in I.A.No.6005/2008. Finding that the said order is not complied with, the Appellate Court by order dated 31/7/2009 recalled the order and closed the I.A. 3. Learned counsel for the appellant submitted that due to certain lack of communication between the appellant and his Lawyer, the condition could not be complied with and as a result of the same his application for re-admission of the appeal happened to be dismissed. The learned counsel submitted that subsequently, the appellant deposited Rs.70,000/- in compliance of the order of the Appellate Court in I.A.No.6005/08. The learned counsel for the respondent/plaintiff submitted that the appellant was not paying even the paltry amount fixed as rent and -3- F.A.O.No.175/2010 that the rent is in arrears for a period of 118 months. According to him, the rent for the period of 118 months with interest is due from the appellant. The learned counsel submitted that for the period of 118 months the rent amount will come to Rs.1,29,800/- and another amount of Rs.77,231/- is due towards interest. 4. It is a fact that the appeal was not decided on merits. The appellant deposited an amount of Rs.70,000/- towards the rent arrears. I am of the view that in the interest of justice the appeal shall be decided on merits. Because the appellant is not paying the rent regularly, I am of the view that the lst appeal can be readmitted on condition that the appellant shall deposit an amount of Rs.1,29,800/- less Rs.70,000/- paid towards the rent arrears for the last 118 months with a cost of Rs.3,000/-, within a period of two months from today and shall continue to pay/deposit the future rent every month without default. On deposit of the rent arrears as directed above, the Lower Appellate Court shall re-admit the appeal and re-hear the -4- F.A.O.No.175/2010 same. In the result, the appeal is allowed. The order under challenge is set aside. The Appellate Court is directed to re-hear the appeal and dispose of the same within a period of nine months from the date of receipt of a copy of this judgment. Subject to the conditions mentioned above, all further proceedings pursuant to the execution of the decree in O.S.No.20/2003 will be kept in abeyance, till the disposal of the appeal. The respondent is at liberty to withdraw the amount in deposit and also the amount to be deposited by the appellant. HARUN-UL-RASHID, JUDGE. kcv.