Subash vs M.K. Subaida
2022 Latest Caselaw 12186 Ker

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OP(C) No.2515 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. 2515 OF 2022
  TO RECONSIDER EA        NO.103/2022 IN         EP 33/2022 OF MUNSIFF
                      MAGISTRATE, 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)


      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.2515 of 2022

                       C.S DIAS,J.
                   ---------------------------
               OP(C) No.2515 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.219/2019, 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.2515 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

OP(C) No.2515 of 2022

of the 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.33/2022 till 31.1.2023.

(iii) If the petitioner fails to vacate the

premises as undertaken, the Execution Court

OP(C) No.2515 of 2022

shall surge ahead with the execution petition

from the stage it has been stopped 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.2515 of 2022

APPENDIX OF OP(C) 2515/2022

PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE COMMON ORDER IN O.S 219/2019 ON THE FILE OF THE MUNSIFF- MAGISTRATE, SULTHANBATHERY, DATED 25.08.2021 Exhibit-P2 TRUE COPY OF E.P 33/2022 DATED 07.04.2022 BEFORE MUNSIFF-MAGISTRATE, SULTHAN BATHERY Exhibit-P3 TRUE COPY OF EXECUTION APPLICATION E.A 103/2022 IN E.P 33/2022 DATED 28.11.2022 Exhibit-P4 TRUE COPY OF THE COMMON ORDER IN E.A 103/2022 IN E.P 33/2022 DATED 06.12.2022 BEFORE MUNSIFF-MAGISTRATE, SULTHAN BATHERY Exhibit-P5 TRUE COPY OF THE ORDER IN E.P 33/2022, DATED 06.12.2022 BEFORE MUNSIFF- MAGISTRATE, SULTHAN BATHERY