Basil Scott, C.J.
1. The plaintiffs filed this suit for redemption alleging that the document which had been passed by them in favour of the, defendant in the form of a sale-deed was really a mortgage.
2. The defendant disputed this allegation and contended that evidence was not admissible for the purpose of proving that the sale-deed was really a mortgage.
3. Issues were raised and the further hearing was fixed for a certain date. After the raising of the issues bat before the hearing, the plaintiff put in the following application: 'This is a suit for redemption: plaintiff and defendant had entered into a mortgage transaction and the defendant has taken from the plaintiff a mortgage in the form of a sale-deed. We have got evidence to show that the sale-deed is really a mortgage. The defendant has now given a petition contending that oral evidence is inadmissible though he did not say so in the written-statement. The different High Courts have taken different views as to whether oral evidence was admissible or not. Further, Section 10-A of the Dekkhan Agriculturists' Relief Act states that oral evidence is admissible. The third part of the Dekkhan Agriculturists Relief Act has been applied to this District, but Section 10-A is not included in it. Therefore, the point in dispute is whether oral evidence is admissible or not. In such a state of things if this suit is farther prosecuted, plaintiff is likely to suffer loss. Therefore, the plaintiff should be permitted to withdraw this suit and then to bring a fresh suit'.
4. The application was in effect a confession that upon the law as it then stood the plaintiffs would not be able to give evidence which would entitle them to succeed.
5. Notwithstanding the protest of the defendant the Subordinate Judge granted permission to the plaintiffs to withdraw the suit with liberty to file a fresh suit hereafter.
6. The defendant feeling aggrieved by that order has applied to this Court under Section 115 of the Civil Procedure Code of 1908 for revision, on the ground that the lower Court has acted without jurisdiction or with material irregularity in the exercise of its jurisdiction. Section 373 of the Civil Procedure Code of 1882, under which the order of the Subordinate Judge was passed, provides that 'If at any time after the institution of the suit, the Court is satisfied on the application of the plaintiff that the suit must fail by reason or some formal defect or that there are sufficient grounds for permitting him to withdraw from the suit or to abandon part of his claim with liberty to bring a fresh suit for the subject-matter of the suit or in respect of the part so abandoned, the Court may grant such permission on such terms as to costs or otherwise as it thinks fit'.
7. In the case of Muddun Ram Doss v. Israil Ali Chowdhry 21 W.R. 291 Mr. Justice Kemp of the Bengal High Court held upon the words of Section 97 of the Civil Procedure Code of 1859 which provided that the Court on being satisfied that there was sufficient ground for permitting the plaintiff to withdraw the suit, might grant permission, that such a permission should not be granted except in cases where the suit had failed by reason of some formal defect, following the decision of the one Judicial Committee in Watson v. The Collector of Rajshaye 13 M.I.A. 160: 3 B.L.R. (P.C.) 48 12 W.R. (P.C.) 43.
8. The words of the Code of 1882 are different from the words construed in the case by Mr. Justice Kemp, for, the Courts authorized to permit withdrawal not only where the suit must fail by reason of some formal defect but also where there are sufficient grounds for permitting the plaintiff to withdraw.
9. It is impossible to lay down any exhaustive definition of what are sufficient grounds within the meaning of Section 373 but I think that the Court should not allow a suit to be withdrawn after the parties are ready for trial if such withdrawal may operate to the prejudice of the defendant. The power of the Court in India appears to me under the Civil Procedure Code to be no greater than the power of the Court in England under Order XXVI, Rule 1. With regard to that rule Lord Halsbury in delivering the judgment of the House of Lords in Fox v. The Star Newspaper Company Ld. (1900) A. C 19: 69 L.J.Q.B. 117: 43 W.R. 321: 81 L.T. 562: 16 T.L.R. 97 said: The substance (of the new procedure) is that when it comes into Court, and when the plaintiff offers no support to his action, there must be a verdict for the defendant.' That, as I have pointed out, is in effect the situation here. The plaintiffs by their application confess upon the law as it now stands that they cannot give any evidence which would enable them to obtain a decree yet they have obtained permission to withdraw their suit in order that they may wait and see if the law is not altered at some future date in such a way as to enable them to obtain a decree against the defendant who is now ready for trial and prepared to resist the claim and certain of success on the law now in force.
10. It seems to me that in the circumstances of this case the Subordinate Judge acted with material irregularity in passing the order which he did, and I, therefore, set it aside with costs.