A suit can be withdrawn with liberty to file a fresh suit under Order 23 Rule 1 of the Code of Civil Procedure if the plaintiff has sufficient cause, such as a change in law rendering the suit formally defective.

( 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.

( 4 ) MR. Tilak Bose, learned Advocate led by Mr. Pratap Chatterjee, learned Senior advocate contends that the Power of Attorney of Rushi Ardeshir Jeejeebhoy dated 19th August, 2003 cannot be relied on in this application, as on the date of execution of the same he was not a party to the suit. So power given by him on the strength of the aforesaid document to the deponent is invalid. Naturally the application must fail.

( 5 ) HE further contends that the relief under Order 23 Rule 1 of the Code of Civil procedure can be granted only upon satisfaction of the two conditions, namely, " (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim". According to him this power given to the Court is absolutely discretionary one and it should be exercised cautiously and taking into consideration of the rights already accrued in favour of the defendant particularly. He says that his client has already filed written statement and is contesting the proceeding and a valuable right has been accrued in favour of his client.

( 6 ) THE words 'sufficient ground' should be read as analogous to the formal defect as it has been ruled by a Full Bench decision of the Bombay High Court reported in AIR 1940 Bombay 121. He has also cited a supreme Court decision reported in (2000) 5 scc 458 (Paragraph 13) : (AIR 2000 SC 2132), (Para 12) for the proposition as to when the Court will exercise its discretion and in which manner. He has also cited two decisions reported in AIR 1977 SC 131 and air 1971 Bombay 295. I think the later two decisions are of no relevanc