( 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 t