- (1.) The petitioners instituted a suit for eviction of a monthly tenant under the provisions of the West Bengal Premises Tenancy Act, 1956. Statutory notice under Section 13 (6) of the said Act, which is sine qua non to the institution of the suit for eviction, is stated to be defective as the tenancy runs according to Bengali calendar month whereas the statutory notice has been issued according to the English calendar month. Precisely, for such formal defect where the suit is likely to fail, the petitioner, by filing an application, prayed for withdrawal of the suit with liberty to institute afresh.
(2.) The trial Court, after being satisfied that the suit would fail for want of valid statutory notice, allowed withdrawal of the said suit with liberty to file afresh. The revisional Court, however, proceeded to hold that dismissal should have been done on contest as an application under Section 17 (2) of the West Bengal Premises Tenancy Act, 1956 has been disposed of by the trial Court.
(3.) Order 23 Rule 1 of the said Act provides that the plaintiff, at any time after the institution of the suit, may abandon his suit or part of his claim. Order 23 Rule 3 further provides for withdrawal of the suit upon satisfaction of the Court that the suit must fail for reason of some formal defect. Thus, withdrawal can be sought at any stage after institution of the suit.;