A.K.Janah, J. - (1.) This is an application under Section 115 of the Code of Civil Procedure for revision of an order dated November 29, 1979 passed in Title Suit No. 595 of 1978 by the Munsif, Second Court, Alipore. By the said order the learned Munsif allowed the prayer made by the opposite party under Order 23, Rule 1, Sub-rule (3) of the Code of Civil Procedure for withdrawal of the suit with liberty to file a fresh suit upon the same cause of action.
(2.) In this matter a caveat was lodged on behalf of the opposite party in this Court and Mr. Suchit Kumar Banerjee, learned Advocate, appears on behalf of the opposite party. The application was assigned to me by the Hon'ble the Chief Justice. After hearing Mr. Bidyut Kumar Banerjee, learned Advocate for the petitioner, I heard Mr. Suchit Kumar Banerjee, learned Advocate for the opposite party.
(3.) Title Suit No. 595 of 1978 of the second court of the Munsif, Alipore, in which the order has been passed was filed by the opposite party against the petitioner for recovery of possession of a certain premises (hereinafter referred to as the disputed premises) after evicting the petitioner therefrom. The case of the opposite party is that the petitioner is a tenant in respect of the disputed premises under the opposite party; that the opposite party is a retired army officer and he is a qualified surgeon. After his retirement the opposite party is living in a rented house at Poona and he has been served with a notice to quit by his landlord. The opposite party wants to shift to Calcutta with his family and start the profession of a medical practitioner and therefore he requires the disputed premises for his own use and occupation. On these grounds the suit was filed for eviction of the petitioner from the disputed premises. The suit was filed on December 22, 1978. In 1976 Chapter VIA of the West Bengal Premises Tenancy Act was introduced by West Bengal Act LII of 1976 making certain provisions for disposal of applications for eviction on the ground of bona fide requirement by a certain class of landlords. Section 28B is one of such provisions in Chapter VIA. The relevant portion of Section 29B reads as follows: "Section 29B (1). No Civil Court shall entertain any application by a landlord being a Government employee, and who being in occupation of any residential premises allotted to him by his employer, is required by, or in pursuance of, an order made by such employer to vacate such residential accommodation, or in default, to incur certain obligations on the ground that he owns a residential accommodation either in his own name or in the name of his wife or dependent child at or near the place where he is posted for the time being, for the recovery of possession of any premises on the ground specified in Clause (ff) of Sub-section (1) of Section 13 but such application shall be dealt with by the Controller in accordance with the procedure specified in this section". A further amendment to Section 29B was introduced by West Bengal Act XXXVI of 1978. After the said amendment, Section 29B now stands as follows: "Section 29B (1): No Civil Court shall entertain any application by a landlord being a Government employee......... on the ground that he owns a residential accommodation either in his own name or in the name of his wife or dependent child at or near the place where he is posted for the time being, or by a landlord who is a retired member of the naval, militay or air force of the Union of India or who will retire within a period of less than one year as such member for the recovery of possession of any premises on the ground specified in Clause (ff) of Sub-section (1) of Section 13 but such application shall be dealt with by the Controller in accordance with the procedure specified in this section." The assent of the President to this Act was first published in the Calcutta Gazette (Extraordinary) on October 30, 1978. Thereafter the opposite party filed an application under Order 23, Rule 1, Sub-rule (3) of the Code of Civil Procedure for withdrawing the suit so that he could file an application before the Rent Controller under Section 29B of the West Bengal Premises Tenancy Act for recovery of possession of the disputed premises. The said application was opposed by the petitioner on several grounds. The learned Munsif allowed the said application by order No. 17 dated November 29, 1979. Against this order the present application has been filed by the petitioner.;