Lakshmi v. Leelamma Antony

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, THE 21ST DAY OF JANUARY 2015/1ST MAGHA, 1936 OP (RC).No. 8 of 2015 (O) -------------------------- (RCP 135/2013 of III ADDL. MUNSIFF & RENT CONTROL COURT, ERNAKULAM DATED 02-08-2014) (RCA.82/14 OF DISTRICT COURT, ERNAKULAM) PETITIONER(S):

-------------------------- LAKSHMI, AGED 36 YEARS W/O.DR SURESH KUMAR, 36/248-A MEDIWIN SPECIALTY LABORATORIES, LISIE HOSPITAL ROAD ERNAKULAM NORTH ERNAKULAM 682 018 ERNAKULAM DISTRICT BY ADVS.SRI.E.A.BIJUMON SRI.AJEESH S.BRITE RESPONDENT(S):

---------------------------- LEELAMMA ANTONY, AGED 64 YEARS W/O. VC.T ANTONY, RESIDING AT 36/248 C LISIE HOSPITAL ROAD, ERNAKULAM NORTH ERNAKULAM 682 018 ERNAKULAM DISTRICT R-R BY ADV. SRI.JIMMY JOHN VELLANIKARAN R-R BY ADV. SRI.SABU PULLAN THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 21-01-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP (RC).No. 8 of 2015 (O) -------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1 TRUE COPY OF THE RCP NO 135/2013 DATED 30/11/2013 EXHIBIT P2 TRUE COPY OF THE OBJECTION IN RCP NO 135/2013 DATED 20/02/2014 EXHIBIT P3 TRUE COPY OF THE MEDICAL REPORT EXHIBIT P4 TRUE COPY OF ORDER IUN I.A NO 5109/2014 EXHIBIT P5 TRUE COPY OF THE ORDER IN IA NO 3321/2014 ON 02/08/20914 EXHIBIT P6 TRUE COPY OF THE IA NO IA NO 7103/20914 ON 20/09/2014 EXHIBIT P7 TRUE COPY OF THE D.D NO 125381 ON 20/09/2014 EXHIBIT P8 TRUE COPY OF THE RCA NO 82/2014 ON 20-10-2014 EXHIBIT P9 TRUE COPY OF THE IA NO THE IA NO 270/2015 RCA NO 82/2014 ON 20-10-2014 /TRUE COPY/ PS TO JUDGE

ANTONY DOMINIC & ALEXANDER THOMAS, JJ.

----------------------------------- O.P(RC).No.8 of 2015 ----------------------------------- Dated this the 21st day of January, 2015

JUDGMENT

Antony Dominic, J.

1.Petitioner is the respondent in RCP.No.135/13 on the file of the Rent Control Court, Ernakulam. In the RCP, an order under section 12 of the Rent Control Act was passed and on account of its non-compliance, the Rent Control Court struck off the defence and ordered eviction.

The tenant thereupon filed RCA.No.82/14. In that RCA, the tenant sought for stay of the order passed by the Rent Control Court, which was dismissed by order dated 17.1.2015. It is thereupon, this original petition is filed with a prayer to direct the Rent Control Appellate Authority to issue a copy of the order dated 17.1.2015 and also to direct that till such time, further proceedings in E.P.268/14 on the file of the Principal Munsiff Court, Ernakulam be stayed.

2.When the original petition came up for admission before this Court, counsel for the petitioner tenant expressed his willingness to discharge the entire

liability and taking note of the submission so made, this Court passed order dated 19.1.2015, issuing notice by special messenger to the respondent and posting the matter today.

3.Today, when the matter was taken up, counsel for the respondent made a submission that before the Execution Court, an undertaking was given by the petitioner to surrender vacant possession of the room in question. Thereupon this court passed the following order:

"When the matter was taken up, learned counsel appearing for the respondent submitted that she has filed E.P.No.268/14 before the Principal Munsiff Court, Ernakulam for execution of the order passed by the Rent Control Court in RCP No.135/13, confirmed by the appellate authority in RCA No.82/14. According to the counsel, when the EP came up for consideration before the court on 19.1.2015, counsel appearing for the petitioner herein has undertaken to surrender vacant possession within two days and the court has recorded the same.

If, as stated by the counsel, such an undertaking has been given, the petitioner could not have filed the OP. However, the correctness of this submission is disputed by the counsel for

the petitioner. Therefore, Registry is directed to obtain clarification from the Principal Munsiff Court, Ernakulam as to whether the petitioner herein has given any undertaking as above when EP No.268/14 came up before it for consideration on 19.1.2015."

4.Accordingly, the Registrar (Judicial) of this Court contacted the Principal Munsiff, Ernakulam and submitted the following report:

"As directed, I contacted the Principal Munsiff, Ernakulam. On verification of the files, she has submitted that when the matter came up on 19.01.2015, in open Court, the J.D. submitted that two days time be granted for removing fixtures as she needs expert's help. It was also submitted J.D. was ready to hand over vacant possession in two days time. Prayer granted. Effect delivery on 22.01.2015. Posted to 23.01.2015, for report." 5.Reading of the report shows that the submission made on behalf of the counsel for the respondent is factually correct. The report was read out to the counsel for the petitioner Adv.Sreekumar Chelur who also did not dispute the factual accuracy of the contents of the report. This, therefore, means that before the Execution Court, on 19.1.2015, the tenant

had undertaken to handover vacant possession of the room in question to the landlord and it was therefore that at her request, two days time was granted and the EP was posted to 23.1.2015. It is also clear that suppressing these material facts, this original petition was filed on 19.1.2015 itself.

6.In our view, the tenant having given such undertaking should have honoured the same and should not have approached this Court by way of this original petition and that too, suppressing material facts.

7. Accordingly, we hold that this original petition is total abuse of the process of this Court and is to be dismissed.

The original petition is therefore dismissed with costs of `10,000/- which shall be paid by the petitioner to the respondent.

Sd/- ANTONY DOMINIC, Judge.

Sd/- ALEXANDER THOMAS, Judge.

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