Saiju Y.P vs Sunil J. Chungath
2022 Latest Caselaw 10297 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                   &
          THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
   FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
                       OP (RC) NO. 185 OF 2022
[I.A.NO.2/2021    IN   R.C.A.NO.54/2021    ON    THE   FILES   OF   RENT
CONTROL    APPELLATE   AUTHORITY   AND   VIITH   ADDITIONAL    DISTRICT
COURT, ERNAKULAM]
PETITIONER/PETITIONER/APPELLANT:

            SAIJU Y.P,
            AGED 49 YEARS,
            S/O. N. PAVITHRAN, THODIYIL HOUSE, MUNDAKKAL(M)
            KOLLAM, PIN - 691001

            BY ADV BIJU ABRAHAM



RESPONDENT/RESPONDENT/RESPONDENT:

            SUNIL J. CHUNGATH
            AGED 42 YEARS
            SUNIL J. CHUNGATH, AGED 42 YEARS, S/O. DR. JOY P.
            CHUNGATH, CHUNGATH, VALANJAMBALAM, ERNAKULAM, KOCHI
            - 682 016 REPRESENTED BY DULY CONSTITUTED POWER OF
            ATTORNEY HOLDER SMT. ALFO JOY, AGED 67 YEARS, W/O.
            DR. JOY P. CHUNGATH, CHUNGATH, VALANJAMBALAM,
            ERNAKULAM, KOCHI, PIN - 682016

            BY ADVS.
            Jamsheed Hafiz
            K.K.NESNA(K/302/2014)




    THIS OP (RENT CONTROL) HAVING COME UP FOR
ADMISSION ON 07.10.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 O.P(RC) No.185 of 2022

                                  ..2..

                             JUDGMENT

SHOBA ANNAMMA EAPEN, J.

The petitioner is the tenant in R.C.P.No.97 of 2017, on the

file of the III Additional Munsiff & Rent Controller, Ernakulam. This

Original Petition(RC) is filed by the petitioner-tenant, seeking a

direction to the Rent Control Appellate Authority (Additional District

Court- VII), Ernakulam to dispose of Ext.P2 (I.A.No.2 of 2021 in

R.C.A.No.54 of 2021) within a time frame. The Rent Control Petition

was filed by the landlord, under Section 11(2)(b) of the Kerala

Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'),

seeking eviction of the tenant on the ground of arrears of rent.

2. The landlord filed Rent Control Petition for arrears

of rent from 16.12.2015 to 15.05.2017. The tenant contended that the

rent fell in arrears only because the landlord had demanded exorbitant

rent and the landlord failed to issue receipts for the payment of rent

made. The Rent Control Court, after considering the evidence and

arguments on both sides, allowed the Rent Control Petition as per

Ext.P5 Order, holding that the tenant failed to prove that he has paid

the rent upto December 2015. The petition under S.11(2)(b)was O.P(RC) No.185 of 2022

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allowed. The tenant was directed to handover the vacant possession of

the petition schedule building to the petitioner within 30 days and if

the tenant pays the arrears of rent @ Rs.8511/- per month from

16.12.2015 to 26.05.2017 with 6% interest and costs within 30

days, the order under S.11(2) (b) shall stand vacated under S.11(2)(c) of

the Act and further costs was also allowed. The tenant did not comply

with the order of the Rent Control Court. The landlord filed Execution

Petition No.232/2021 on 10.11.2021, before the executing court for

executing the order of eviction of the tenant from Room

No.C.C.39/1636. The tenant filed objection challenging the execution

petition.

3. Thereafter, the tenant preferred an appeal,

R.C.A.No.54 of 2021, before the Rent Control Appellate Authority

( Additional District Court- VII), Ernakulam on 15.12.2021. The tenant

also filed I.A.No.2/2021, a petition for stay of execution of order in

R.C.P.No.97/2017 dated 04.09.2019.

4. Meanwhile, on 26.09.2022 the Execution Court

ordered delivery of Room No.C.C.39/1635 and directed the Ameen to

report delivery on 28.09.2022. The petitioner- tenant submits that an

advance petition was filed before the Appellate Court for hearing the O.P(RC) No.185 of 2022

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stay petition and the case is posted to 10.10.2022. The learned counsel

for the petitioner-tenant submits that the landlord is taking hasty steps

to proceed with the execution proceedings. This petition is filed under

Article 227 of the Constitution of India seeking a direction to the Rent

Control Appellate Authority (Additional District Court- VII),

Ernakulam to dispose of I.A.No.2 of 2021 in R.C.A.No.54 of 2021

within a time frame. The learned Counsel for the petitioner-tenant

submits that the respondent-landlord is taking advantage of the

adjournment of the case, due to the non-sitting of the Appellate Court.

5. Heard the learned counsel for the petitioner and the

learned counsel for the respondent.

6. The learned counsel for the respondent vehemently

opposed the original petition. Ext.P5 is the order of eviction granted by

the IIIrd Additional Munsiff & Rent Controller, Ernakulam. Pursuant

to that, the respondent has filed execution petition E.P.No.232/2021

on 10.11.2021 before the executing court for evicting the petitioner.

Petitioner has filed R.C.A.No.54 of 2021 before the Rent Control

Appellate Authority (Additional District Court- III), Ernakulam. Along

with the said appeal, the petitioner had filed I.A.No.2/2021 for stay of

execution of the order in R.C.P.No.97/2017 on the file of the IIIrd O.P(RC) No.185 of 2022

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Additional Munsiff & Rent Controller, Ernakulam. It is the case of the

petitioner that the respondent/landlord has moved the execution

petition and is taking hasty steps to proceed with the execution

proceedings. Hence, speedy disposal of I.A.No.2/2021 is warranted.

7. In the said circumstances, in order to meet the interest

of justice, a direction can be given to the Principal District Judge,

Ernakulam, due to the non-sitting of the Rent Control Appellate

Authority (Additional District Court- VII), Ernakulam to dispose of the

petition for stay filed by the petitioner within a reasonable period and

during such period, to direct the Execution Court to keep the execution

proceedings in E.P.No.232/2021 in R.C.P.No.97/2017 in abeyance.

Hence, this Original Petition(R.C) is disposed of directing

the Principal District Judge Ernakulam, to dispose of I.A.No.2/2021,

petition for stay, on the files of Rent Control Appellate Authority

(Additional District Court- VII), Ernakulam filed by the petitioner for

stay of execution of the order in R.C.P.No.97/2017 on the file of the

IIIrd Additional Munsiff & Rent Controller, Ernakulam within a period

of three weeks from the date of production of a certified copy of this

judgment. The parties shall not seek any adjournments. Till the

disposal of I.A.No.2/2021, the Execution Court is also directed to keep O.P(RC) No.185 of 2022

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execution proceedings in E.P.No.232/2021 in R.C.P.No.97/2017 in

abeyance.

The Original Petition (RC) is disposed of as above.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

sd/-

SHOBA ANNAMMA EAPEN, JUDGE

MBS/ O.P(RC) No.185 of 2022

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APPENDIX OF OP (RC) 185/2022

PETITIONER EXHIBITS

ExhibitP1 A TRUE COPY OF THE MEMORANDUM OF APPEAL IN R.C.A. NO. 54/2021 ON THE FILES OF RENT CONTROL APPELLATE AUTHORITY AND DISTRICT COURT, ERNAKULAM (NOW PENDING BEFORE THE VIITH ADDITIONAL DISTRICT COURT, ERNAKULAM)

ExhibitP2 A TRUE COPY OF THE STAY PETITION FILES AS I.A. NO. 2/2021 IN R.C.A. NO. 54/2021 ON THE FILES OF RENT CONTROL APPELLATE AUTHORITY AND DISTRICT COURT, ERNAKULAM (NOW PENDING BEFORE THE VIITH ADDITIONAL DISTRICT COURT, ERNAKULAM)

ExhibitP3 A TRUE COPY OF THE ORDER IN R.C.P.NO.85/2018 OF THE RENT CONTROL COURT, ERNAKULAM DATED 04- 09-2019

ExhibitP4 A TRUE COPY OF THE STAY ORDER DATED 19-

08-2022 IN R.C.R.NO.22/2022 OF THIS HON'BLE COURT

ExhibitP5 A TRUE COPY OF THE ORDER IN R.C.P.NO.97/2017 DATED 04-09-2019 OF THE ADDITIONAL MUNSIFF AND RENT CONTROL COURT ERNAKULAM

ExhibitP6 A TRUE COPY OF THE E.P.NO.232/2021 IN R.C.P.NO.97/2017 ON THE FILES OF THE MUNSIFF COURT ERNAKULAM

ExhibitP7 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER ON 20-09-2022 IN E.P.NO.232/2021 IN R.C.P.NO.97/2017