NUMAZAR DORAB MEHTA Vs. ASSAM CO LTD

JUDGEMENT

(1.) This application dated September 19th, 2003 has been filed by plaintifs 1,3,4 and 5 (hereinafter referred to as "the surviving plaintiffs') in Civil Suit No.199 of 2001. They pray for leave to withdraw the suit with liberty to institute a fresh one for similar reliefs. The suit was filed on April 17th, 2001 for the following reliefs :

(2.) During pendency of the suit, on May 1st, 2002 plaintiff 2 (Beji Minno Bulsara) died. The five plaintiffs filed the suit as trustees of the trusts called and known as "the Calcutta Zoroastrian Community's Religious and Charity Fund, and the Olpadvala Memorial Trust." It was filed for eviction of the sole defendant from the suit premises, i.e. from 52; Chowringhee Road, Kolkata-700 071 and for recovery of khas possession. This eviction was sought on the ground of expiry of the period of lease granted for 21 years with effect from February 1st, 1980. The lease was granted by a registered deed dated April 17th, 1984. The surviving plaintiffs pray for leave to withdraw the suit on the ground that the lease executed on April 17th, 1984 fixing the tenure of tenancy till January 31st, 2001 being a lease for less than 20 years, according to the legal opinion, the tenancy was governed by the West Bengal Premises Tenancy Act, 1956, and hence it could not be instituted treating the defendant as a lessee not governed by this Act. They pray for liberty to institute a fresh suit under the West Bengal Premises Tenancy Act, 1997 that has repealed the 1956 Act as from February 1st, 2001. They have stated that in place and stead of deceased plaintiff 2, one Mr. Russi Jeejeebhoy has been elected as the trustee, and he has affirmed an affidavit signifying his consent to the withdrawal of the suit.

(3.) The application is, however, opposed by the defendant. The case of the defendant, as stated in its opposition dated October 30th, 2003, is this. It is not a statutory tenant; it is a lawful tenant and continues to remain in occupation of the suit premises as such. As the surviving plaintiffs have not prayed for leave to withdraw the suit with liberty to institute a fresh suit for similar reliefs, they are not entitled to file a fresh suit for eviction of the defendant. Without substituting Mr. Russi Jeejeebhoy in place and stead of deceased plaintiff 2, the surviving plaintiffs cannot proceed with the suit to file application for leave to withdraw the suit with liberty to file a fresh suit. By a reply dated November 4th, 2003 the contentions raised by the defendant have been disputed by the surviving plaintiffs.