Conditional withdrawal of suit
Manoj Pamul
(Querist) 02 August 2013
This query is : Resolved
Dear Experts, Pls guide me on below mentioned query.
Facts - In a Civil Miscellaneous Application which is filed by the tenant against landlord and prayed to direct the landlord for making repairs and also prayed for injunction not to obstruct while repair activity is carried out. In this Miscellaneous Application the Applicant i.e. tenant has applied for temporary injunction not to obstruct while carrying out some minor repairs. However, after hearing both sides the court has rejected the application for temporary injunction. The landlord had pleaded that already the municipal commission has twice issued notice to demolish the whole building as it is very old and also dangerous for public. This pleas was considered by the court in the interim order and also mentioned that whether the building or rooms which are in possession of tenant are repairable or not, it can be seen and decided after recording the evidences only. Thereafter all of a sudden he started construction and repairs even though no permission was given by court and then the landlord who was a opponent in the case, has filed an application for seeking direction against the tenant not to make any repairs or construction and accordingly the court has directed the tenant i.e. applicant not to make any repairs or construction or demolition till further order. Thereafter all of a sudden the tenant i.e. Applicant has filed a memo stating, he does not want to continue the proceeding and hence be disposed off. Now I argued and filed say stating that the applicant may be allowed to withdraw the proceeding subject to confirm the order passed by the court because when already some rights have arisen in favour of opponent i.e. landlord at then the order passed by the court against applicant not to make any repairs etc be confirmed till he gets permission by following due process of law.
Query - 1)Whether the Applicant can withdraw the application, where some rights have arisen in favour of opponent?
2) Whether court can confirm the interim order till he gets permission for repairs etc. by following due process of law?
Pls give me authorities in this regard, if any.
Thank You!
Raj Kumar Makkad
(Expert) 03 August 2013
1. applicant can withdraw but the counter-claim filed by landlord shall remain continued.
2. Court can decide the counter claim independently.
V R SHROFF
(Expert) 03 August 2013
COUNTER CLAIM OF DEF BECOMES MAIN PETITION, ON WITHDRAWAL OF SUIT BY PLAINTIFF.
prabhakar singh
(Expert) 04 August 2013
Reading query it is clear that NEITHER ANY SUIT WAS FILED BY THE TENANT NOR ANY COUNTER CLAIM WAS FILED BY LANDLORD.
RATHER APPLICATION OF TENANT was an I.A. Miscellaneous Application but it has not been told under which RENT CONTROL ACT it was moved.
State rent control Act do provide for such remedies for repairs,enhancement of rent,deposit of rent in court on refusal etc. and suits or counter claims are not required for that.
Advocate Ravinder
(Expert) 11 August 2013
As well said by prabakar singh sir that the landlord has not filed any counter claim. In such case, the landlord has to file a fresh suit under rent control Act against the tenant and then he has to file I.A. for interim relief.
