O.P.(RC).No.227 of 2023

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945 ``` ``` OP (RC) NO. 227OF 2023 ``` ``` AGAINST THE ORDER DATED 13.03.2023 IN RCP NO.2 OF 2021 OF MUNSIFF COURT, ETTUMANOOR ``` ## **`PETITIONER/PETITIONER IN IA AND PETITIONER IN RCP:`** ``` V.A. ABRAHAM, AGED 64 YEARS, S/O. V.J. ABRAHAM, VECHOOKKALAYIL HOUSE, PEROOR P.O., PEROOR KARA, PEROOR VILLAGE, KOTTAYAM DISTRICT., PIN - 686637 ``` ``` BY ADVS. R.PARTHASARATHY SEEMA ``` ## **`RESPONDENT/RESPONDENT IN IA AND RESPONDENT IN RCP:`** ``` TOM PHILIP AGED 51 YEARS S/O. PHILIP, PALLITHAZHATHU HOUSE, PEROOR P.O., PEROOR KARA, PEROOR VILLAGE, KOTTAYAM DISTRICT, PIN - 686637 ``` ``` BY ADVS. KISHORE D MEERA GOPINATH(K/001803/1999.) R.MURALEEKRISHNAN (MALAKKARA)(K/000583/2008) ``` ``` THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 O.P.(RC).No.227 of 2023 ## **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 3 O.P.(RC).No.227 of 2023 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 4 ## O.P.(RC).No.227 of 2023 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. In other words, it is not open for the court to grant only permission for 5 O.P.(RC).No.227 of 2023 withdrawal, without liberty to file a fresh suit, and that when the court has declined to grant leave to file a fresh suit, the application ought to have been dismissed in toto. The proposition of law in this regard has been laid down by a Single Bench decision of this Court in **Harihara Iyer v. Varkey [1981 KLT SN.77]** . The same principle has been followed by a Single Bench of the Madras High Court in **Rajasundari Sivaramakrishnan v. Gowri @ Avaduai Ammal and others [AIR 2006 Madras 156]** . 10. Having regard to the discussion of facts and law stated aforesaid, we deem it appropriate to allow the petitioner to have R.C.P.No.2 of 2021 withdrawn, with liberty to file fresh suit, in respect of the reliefs sought for therein. As regards the prayer for setting aside Ext.P7 order of the Rent Control Court directing the levy of stamp duty and penalty for the lease deed, it has to be stated that, as apparent from the face of that order, it will become operative only if the lease deed concerned is admitted in evidence. In the case on hand, the petitioner opted for withdrawal of the rent control petition immediately after the filing of proof affidavit and documents. That can only mean that the petitioner has retracted from his earlier resolve to tender the insufficiently stamped lease deed in evidence. In such circumstances, the levy of stamp duty and penalty for that document, by the court, is not warranted. It has been held by a 6 ## O.P.(RC).No.227 of 2023 Division Bench of this Court in **Ramachandran K.P v. District Registrar (General) and Others [2019 (3) KHC 136]** that penalty can be imposed by invoking Section 34 of the Kerala Stamp Act only if the instrument is sought to be admitted in evidence, and no penalty can be imposed if the document is not tendered to be admitted in evidence. Paragraph 10 of the aforesaid decision reads as follows: “10. Then the question to be considered is what is the circumstances under which the Court / empowered person can impose penalty on the insufficiently stamped instrument. It is well discernible from Section 34 of the Act that no instrument chargeable with duty shall be admitted in evidence or shall be acted upon unless the instrument is duly stamped and such insufficiently stamped instrument be admitted in evidence on payment of deficient portion and penalty at 10 times of such portion. Thus, penalty can be imposed only if the instrument is sought to be admitted in evidence and no penalty can be imposed if the document is not tendered to be admitted in evidence.” 11. As far as the present case is concerned, Ext.P7 order of the Rent Control Court does not reflect that the said court has resorted to Section 33 of the Kerala Stamp Act towards impounding the said document. On the other hand, what could be discerned from the wordings of the said order is that the said court has only directed that deficit stamp duty and penalty shall be remitted if the insufficiently stamped lease deed has to be admitted in evidence. In 7 O.P.(RC).No.227 of 2023 such circumstances, there is absolutely no scope for any interference with the above order of the Rent Control Court. It is made clear that if the Rent Control Court has passed any order under Section 33 of the Kerala Stamp Act towards impounding the insufficiently stamped lease deed, which was sought to be tendered in evidence, the inevitable consequences as envisaged under Section 37(2) of the Kerala Stamp Act would follow. Thus the prayer of the petitioner to set aside Ext.P7 order of the Rent Control Court cannot be allowed. In the result, the Original Petition is disposed of, as follows: Ext.P1 order passed by the Rent Control Court, Ettumanoor on 30.03.2023 in I.A.No.8 of 2023 in R.C.P.No.2 of 2021 is modified, permitting the withdrawal of the said Rent Control Petition, with liberty to institute fresh suit in respect of the same subject matter. The prayer to set aside Ext.P7 order dated 13.03.2023 of the said Court, stands rejected. (sd/-) ## (sd/-) **G. GIRISH, JUDGE** jsr/vgd 8 O.P.(RC).No.227 of 2023 ``` APPENDIX OF OP (RC) 227/2023 ``` ``` PETITIONER EXHIBITS ``` ``` Exhibit -P1TRUE COPY OF ORDER IN I.A. 08/2023 IN R.C.P. 02/2021 BEFORE THE RENT CONTROL COURT DATED 30.03.2023. ``` ``` Exhibit -P2TRUE COPY OF I.A.NO.8/2023 DATED 23.03.2023 IN RCP 2/2021. ``` ``` Exhibit -P3TRUE COPY OF THE COUNTER STATEMENT DATED 24.03.2023 BY RESPONDENT OPPOSING PETITION. ``` ``` Exhibit -P4TRUE COPY OF THE RENT CONTROL PETITION RCP 02/2021 DATED 04.01.2021 ``` ``` Exhibit -P5TRUE COPY OF THE COUNTER STATEMENT FILED BY RESPONDENT TO THE PETITION DATED 17.09.2022. ``` ``` Exhibit -P6TRUE COPY OF THE LEASE DEED DATED 01.01.2020 IS NOT ADMITTED IN EVIDENCE, THE RESPONDENT DENYING EXECUTION OF THE SAME. ``` ``` Exhibit-P7TRUE COPY OF ORDER DATED 13.03.2023 ``` ``` Exhibit P8TRUE COPY OF THE RENT CONTROL PETITION FILED AS RCP.NO. 2/2021 BEFORE THE RENT CONTROL COURT, ETTUMANOOR ```