NUMAZAR DORAB MEHTA Vs. ASSAM COMPANY LTD

JUDGEMENT

(1.) The plaintiffs have taken out this application to withdraw the instant suit. In prayer (a) leave is sought for to withdraw the suit simplicitor on such terms as the Hon'ble Court may deem fit and proper.

(2.) Mr. Mitra, learned Senior Advocate appearing for the applicants upon instruction submits that his clients are pressing for the relief in terms of prayer (c), namely, leave be given under Order 23, Rule 1 of the Code of Civil Procedure to withdraw the instant suit with liberty to institute a fresh suit in respect of the subject matter of the instant suit, therefore, the issue in this application shall be confined to the provision of Order 23, Rule 1 of the Code of Civil Procedure. Mr. Mitra on merits submits that on the advice of the legal expert the present suit cannot be maintained in its form. The instant suit has been filed for eviction of the defendant on the ground of the expiry of lease in respect of the premises in question by efflux of time. An application for summary judgment was taken out and in that application a defence was taken that the suit filed by the plaintiffs cannot be governed by the Transfer of Property Act and the defendant enjoys the protection under the West Bengal Premises Tenancy Act, 1956. On the aforesaid ground in the summary application the Court granted unconditional leave to defend.

(3.) Now the plaintiffs have accepted the defendant to be a monthly tenant and whatever protection available under the West Bengal Premises Tenancy Act now available can be made applicable to them. Based on the provision of the aforesaid statute his clients want to file a fresh suit. According to Mr. Mitra the aforesaid facts and circumstances constitute sufficient cause, if not a formal defect, in order to enable this Court to grant permission to file a fresh suit. The other technical objection raised by the defendant is that the application has not been verified by the appropriate person, namely, the constituted Attorney who did not have any authority to verify. In answer to the aforesaid plea the original Powers of Attorney have been produced before this Court, one executed by three trustees jointly and another by fourth trustees. The documents are of dated 5th August, 2003 and 19th August, 2003 respectively.