J U D G M E N T

G. Girish, J.

The petitioner herein is the landlord, who filed R.C.P.No.2 of

2021 before the Rent Control Court, Ettumanoor, for the eviction of the respondent from the petition schedule building, on the ground of arrears of rent and bona fide need envisaged under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control)

Act, 1965 (for short 'the Act').

2. The respondent countered the above proceedings, denying the landlord-tenant relationship, and contending that there was no lease agreement with the petitioner, and nor had the respondent paid any rent to the petitioner-landlord. It was further pointed out that the respondent had instituted O.S.No.4 of 2021 against the petitioner and others, for the relief of permanent prohibitory injunction, since they tried to cause destructions to the industrial establishment being conducted by the respondents in the disputed building.

3. At the time when the petitioner filed proof affidavit along with documents, the Rent Control Court found that the lease deed relied on by the petitioner was insufficiently stamped. Accordingly, the Rent Control Court passed Ext.P7 order under Section 34(a) of the Kerala Stamp Act directing the levy of an amount of Rs.11,800/- as deficit stamp duty and Rs.2,40,000/- as penalty. It was further directed that only on payment of the above amount shall the document be admitted in evidence.

4. Thereupon, the petitioner filed I.A.No.8 of 2023 before the Rent Control Court under Order XXIII Rule 1(3) of the Code of Civil Procedure, to withdraw the R.C.P., with liberty to file fresh suit in respect of the relief sought for in the R.C.P. The Rent Control Court passed Ext.P1 order dated 30.03.2023 in the above application, allowing the application to withdraw the petition, but declining leave to institute fresh petition.

5. Aggrieved by the above orders of the Rent Control Court, permitting withdrawal without granting leave for the institution of fresh suit, and also directing the levy of stamp duty and penalty for the lease deed, the petitioner is here with this Original Petition filed under Article 227 of the Constitution of India.

6. Heard the learned counsel for the petitioner and the learned counsel for the respondent.

7. The learned counsel for the petitioner submitted that the impugned order of the Rent Control Court, is likely to cause fetters to the petitioner in instituting new suit against the respondent for the reliefs sought for in the Rent Control Petition. According to the learned counsel for the petitioner, the application for withdrawal of the Rent Control Petition with liberty to file fresh suit, was necessitated in view of the nature of the contentions raised by the respondent, denying the landlord-tenant relationship and the rental agreement. It is thus stated that the impugned order of the Rent Control Court, permitting withdrawal of the R.C.P and declining leave to institute fresh suit, has to be reversed, since it is impermissible to pass such an order in a petition filed under Order XXIII Rule 1(3)

of the Code of Civil Procedure.

8. It has to be stated at the outset that the operative portion of the impugned order of the Rent Control Court would make it clear that leave was refused, not against the institution of a fresh suit, but against the filing of fresh petition, which would mean that the petitioner is proscribed only from instituting a fresh Rent Control Petition, in respect of the relief sought for in this R.C.P. Yet it appears that the above matter ought to have been clarified by the Rent Control Court in the order under challenge, to avoid confusion and unnecessary legal issues.

9. It is well-settled that in an application filed under Order XXIII Rule 1(3) of the Code of Civil Procedure, it is not open to the court to grant a prayer for withdrawal and refuse leave to institute fresh suit. If liberty is refused, the suit should not be dismissed, but must be retained in the file for trial or continuation of trial