Kerala High Court
Subash vs M.K. Subaida on 22 December, 2022
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OP(C) No.2519 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 22ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944
OP(C) NO. 2519 OF 2022
TO RECONSIDER EA 104/2022 IN EP 34/2022 OF MUNSIFF
MAGISTRATE COURT, SULTHAN BATHERI
PETITIONER/S:
SUBASH
AGED 41 YEARS
S/O.RAMAN NAIR, NOOLAKKUNNU HOUSE,
THAZHATHOOR P.O., NENMENI VILLAGE,
SULTHANBATHERY TALUK, WAYANAD DISTRICT., PIN -
673592
BY ADVS.
A.R.NIMOD
M.A.AUGUSTINE
RESPONDENT/S:
M.K. SUBAIDA
AGED 45 YEARS
W/O.K.UMMER HAJI, KUNNUMMAL HOUSE,
AVILORA P.O., ELETTIL VILLAGE, KOZHIKODE TALUK,
KOZHIKODE DISTRICT., PIN - 673572
BY ADVS.
Alex M Scaria
BEAS K. PONNAPPAN(K/1567/2001)
A.J.RIYAS(K/797/2005)
SARITHA THOMAS(K/158/2010)
ALEN J. CHERUVIL(K/2248/2021)
SAHL ABDUL KADER(K/2210/2021)
SANJITH KUMAR R.(K/2475/2022)
K.C.BINU(K/900/2006)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
22.12.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP(C) No.2519 of 2022
C.S DIAS,J.
---------------------------
OP(C) No.2519 of 2022
-----------------------------
Dated this the 22nd day of December, 2022.
JUDGMENT
The original petition is filed to direct the Court of the
Munsiff, Sulthan Bathery, to reconsider Ext P3
application and to grant sufficient time to the petitioner
to vacate from the plaint schedule property.
2. The petitioner's case is that, he was the
defendant in OS No.220/2019, which was filed by the
respondent, for a decree of mandatory injunction and
recovery of possession. The suit was decreed. Even
though the petitioner filed an appeal, the same was
dismissed. The petitioner does not propose to further
challenge the judgment passed by the Appellate Court.
All that the petitioner requires is a breathing time to
vacate the plaint schedule property. Even though the
petitioner filed Ext P3 application for the said purpose,
the court below, by the impugned Ext P4 order, rejected
OP(C) No.2519 of 2022
Ext P3 application. Ext P4 order is unreasonable and
unjust. Hence, the original petition.
3. The respondent has filed a counter affidavit
denying the allegations in the original petition. The
respondent has contended that the petitioner has been
enjoying the premises without paying a single rupee
towards licence fee. As on today, more than
Rs.40,00,000/- is due. The respondent is earning a
substantial income from the business conducted in the
shop room. Therefore, no leniency may be shown in
favour of the petitioner, who does not deserve any
leniency. Hence, the original petition may be dismissed.
4. Heard; Sri.A.R Nimod, the learned counsel
appearing for the petitioner and Sri.Alex M Scaria, the
learned counsel appearing for the respondent.
5. On a consideration of the pleadings and
materials on record, and taking note of the admission in
the original petition that the petitioner does not propose
to further challenge the judgment and decree of the
OP(C) No.2519 of 2022
Appellate Court, I am inclined to grant the petitioner a
breathing time to vacate the plaint schedule property.
In the result, in exercise of the supervisory powers
of this Court under Article 227 of the Constitution of
India, I dispose of the original petition as follows:
(i) The petitioner shall file an undertaking before
the Execution Court on or before 27.12.2022,
unconditionally agreeing to vacate the plaint schedule
property on or before 31.1.2023 and he does not propose
to further challenge the judgment and decree passed by
the Trial Court and confirmed by the Lower Appellate
Court.
(ii) If such an undertaking is filed within the
specified time period, the Court of the Munsiff, Sulthan
Bathery, is directed to defer all further proceedings in EP
No.34/2022 till 31.1.2023.
(iii) If the petitioner fails to vacate the premises as
undertaken, the Execution Court shall surge ahead with
the execution petition from the stage it has been stopped
OP(C) No.2519 of 2022
and bring it to its logical conclusion, in accordance with
law, as expeditiously as possible.
The original petition is ordered accordingly.
SD/-
Sks/22.12.2022 C.S.DIAS, JUDGE
OP(C) No.2519 of 2022
APPENDIX OF OP(C) 2519/2022
PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF THE COMMON ORDER IN O.S
220/2019 ON THE FILE OF THE MUNSIFF-
MAGISTRATE, SULTHANBATHERY, DATED
25.08.2021
Exhibit-P2 TRUE COPY OF E.P 34/2022 IN O.S 220/2019
ON THE FILE OF THE MUNSIFF-MAGISTRATE,
SULTHANBATHERY DATED 07.04.2022
Exhibit-P3 TRUE COPY OF EXECUTION APPLICATION E.A
104/2022 E.P 34/2022 IN O.S 220/2019 ON
THE FILE OF THE MUNSIFF-MAGISTRATE DATED
28.11.2022
Exhibit-P4 TRUE COPY OF THE COMMON ORDER IN E.A
104/2022 IN E.P 34/2022 ON THE FILE OF
THE MUNSIFF-MAGISTRATE, SULTHANBATHERY
DATED 06.12.2022
Exhibit-P5 TRUE COPY OF THE ORDER IN E.P 34/2022 IN
O.S 220/2019 ON THE FILE OF THE MUNSIFF-
MAGISTRATE, SULTHANBATHERY, DATED
06.12.2022
