1. The plaintiff filed the present suit for redemption and he was met with the plea of res judicaia. This plea has succeeded in both the lower Courts; and in this second appeal the plaintiff has urged that both the lower Courts are wrong in the view which they have taken as to the plea of res judicata.
2. The facts relating to the previous suit are that the present plaintiff had filed the suit for redemption of the same mortgage in the year 1914. That suit was decided on the merits against him. He appealed to the District Court. The appeal was admitted and notices were served upon the then respondents, who are the present defendants. In the course of the appeal an application was made by the plaintiff to the appellate Court asking for leave to withdraw from the suit with permission to bring a fresh suit in respect of the same subject-matter. The order made on the application runs as follows:--'The opposite party has no objection. Plaintiff is allowed to withdraw the suit and to sue de now. Costs on plaintiff in both the Courts'. This order, it is contended on behalf of the plaintiff, has the effect of setting aside the decree that was passed by the trial Court in the first instance and is binding upon the parties to the appeal. On the other hand, it is urged that the appellate Court had no jurisdiction whatever to make this order allowing the plaintiff to withdraw from the suit with permission to file a fresh suit, that the order having been made without jurisdiction, the decree of the trial Court in the case subsists, and that the issues tried and heard in that suit mast be treated for the purposes of the present suit as having been heard and determined.
3. Apart from the decisions bearing on the question to which I shall presently refer, it seems to me that the order was made not without jurisdiction as contended by the respondents. Under Section 107 of the Code of Civil Procedure, subject to such conditions and limitations as may be prescribed, the appellate Court has the same powers and shall perform, as nearly as may be, the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. When the appeal was admitted and notices were served upon the respondents, it seems to me that the whole case was before the appellate Court and that Court had in virtue of the powers referred to in Sub-section 2 of Section 107 jurisdiction to deal with the application made to that Court by the plaintiff. The respondents having raised no objection, the question whether there were under the circumstances sufficient grounds disclosed in the application for an order contemplated by Order XXIII, Rule 1 does not appear to me to be of any practical importance now. It is sufficient that the Court had jurisdiction to deal with the application. The sufficiency of the grounds contemplated by Clause (b) of Sub-rule 2 of Rule 1 of Order XXIII, must depend upon the circumstances of the case. The one important circumstance in the case is that the respondents' pleader then raised no objection. It is not necessary in this case to attempt -to define what constitutes sufficient grounds other than a formal defect within the meaning of Clause ((b) of Rule 1, Sub-rule (2) of Order XXIII. The expression may be construed strictly; and I am prepared to assume in favour of the respondents that if they had sought to have the order set aside by an application to the High Court under the extraordinary jurisdiction they would have succeeded. But the order was allowed to stand and is binding upon the parties. The order must be taken to have been made with jurisdiction; and in plain terms its effect is that the decree of the trial Court is set aside and the order allowing the plaintiff to withdraw from the .suit with permission to institute a fresh suit is substituted for that decree. That is the order which . was ultimately passed in the previous suit; and if that order is held to be not without jurisdiction, it is clear that there is no adjudication and no basis for the plea of res judicata.
4. Mr. Shingne for the respondents, however, has relied upon the decision in Eknath v. Ranoji I.L.R (1911) Bom. 261 : 13 Bom. L.R. 237 and Kali Prasanna Sil v. Panchanan Naudi I.L.R (1916) Cal. 367. We have also referred to the two cases which have been referred to in the Calcutta case and which are reported in the 11th Volume of the Calcutta, Law Journal. As against these decisions the appellant's pleader has relied upon the case of Kamalya v. Pwpayya I.L.R (1916) Mad. 259 and upon the recent decision of this Court in Ghhanubhai v. Dahyabluti. We have considered the decisions cited on both sides and, it' 1 may say so with respect, the view taken by the Full Bench in the Madras case as to the power of the appellate Court is right That is the view accepted in the decision in Chihamibhai v. Dahyabhai by which we are bound.
5. I have carefully considered the ratio decdendi in the case of Kali Vrasawiia till v. Panchanan Nandi (1919) 22 Bom. L.R. 771 It is undoubtedly true, as pointed out by Mr. Shingne, that the ratio decidendi is in favour of the view which he has pressed upon this Court though the order made by the appellate Court in that ease, which was held, in the subsequent proceedings to have been made without jurisdiction, was in form somewhat different from the order in the present case. The order in that case has been quoted at page 371 of the report and may be distinguished from the order made in the present case. But I do not think that the decision in the case can really be distinguished on that ground. There is really a conflict of views and with great deference to the learned Judges who decided the case I am unable to follow that decision. The other two decisions reported in the 11th Volume of the Calcutta Law Journal and referred to by Sanderson C. .J. do not present any difficulty to my mind, as in those cases objection was taken in time to the orders under Order XXIII, ruin 1 by the appellate Court and they were .set aside on the merits of those cases. But I do not read those cases as laying down that the appellate Court can have no jurisdiction whatever to make such orders. The decision in Kknath v. Ranoji, which has been relied upon, is easily distinguishable. In that case the order was made by the appellate Court before the appeal was admitted and before any notice was issued on the appeal to the respondents. Such an order was clearly without jurisdiction and could have no effect upon the decision of the trial Court in that case which was arrived at after hearing the parties and in their presence. The observation in this decision at page 2G3 of the report, which has been strongly relied upon by Mr. Shingne, must be taken to have been made with reference to the facts of the case; and it cannot be read as indicating the opinion of the Court that the appellate Court could never have jurisdiction to make an order allowing the plaintiff ;to withdraw from the suit with permission to bring a fresh suit. Whether in a particular case the appellate Court should exercise that jurisdiction is a matter which must depend upon the facts and circumstances of that case. But I do not think that the decision in Eknath v. Ranoji could be construed as laying down the broad proposition,, which Mr. Shingne has contended for, that the appellate Court could never have such jurisdiction.
6. The appellate Court, in my opinion, had jurisdiction to make the order which it did make on the application of the plaintiff; and in view of the fact that no objection was raised and that the order was acquiesced in, it cannot be said to be an order made without jurisdiction. The question whether there were sufficient grounds for making the order is not relevant now,
7. I would, therefore, allow the appeal, set aside the decrees of the lower Courts and remand the suit for disposal according to law to the Court of first instance.
8. All costs up to date to be costs in the suit.
9. I agree in the judgment just pronounced, and in view of the importance of the point and the divergence of judicial opinion I should like to add a few words.
10. It would, I think, be a matter for regret if we were compelled to come to the conclusion to which the argument of the respondent's pleader would compel us. The facts briefly are that the plaintiff, whose suit had been dismissed in the Court of first instance, appealed to the lower appellate Court., and in the course of the hearing in the presence of the respondents he applied to that Court for leave to withdraw with liberty to bring a fresh suit on the same cause of action. To this no objection was taken by the respondent's pleader. When this fresh suit was tiled, he was met by a plea of res judicata which has prevailed in the original and in the lower appellate Court. But though I feel the hardship of the appellant's position, I do not wish to rest my decision upon that ground. I rely in the first instance upon what, with all deference to the views of those who hold otherwise upon this point, appears to be the plain meaning of the provisions of the Code of Civil Procedure. It appears to me impossible to read Section 107, clause 2 of that Code without coming to the conclusion that generally speaking the appellate Court is empowered in the case of appeals to exercise all the powers which the original Court could have exercised. In the words of the section the appellate Court has that power 'subject to such conditions and limitations as may be prescribed,' and I am unable to find any conditions or limitations which could prevent an appellate Court from exercising the power conferred by Order XXIII, Rule 1. Not only does that appear to me to be the plain meaning of the Code, but it is supported by a recent decision of this Court in Ghhanuhhai v. Duhyabhai (1919) 22 Bom, L.R. 771 and none of the decisions of this Court properly interpreted really conflicts with that exposition of the law. The case of Khnath v. Ranoji I.L.R (1911) Bom 261 : 13 Bom. L.R. 237 does not in reality touch upon the point now before us. For in so far as it contains any pronouncement upon this matter, it must clearly be held to be obiter. It is hardly necessary to say that no case is all authority except upon its own facts, and the facts of Eknath v. Ranoji are undoubtedly different from those in the case now before us. Therefore I feel in no way constrained by any decision of this Court to adopt the view suggested in that decision, and the recent decision to which I have referred appears to me to support the view taken by my learned brother.
11. There is also a Full Bench decision of the Madras High Court (Kamayya v. Papayya I.L.R (1916) Mad. 259 which entirely supports the view which I take as to the powers of appellate Courts in this matter. I prefer the view taken in that case to that which has found favour in the Calcutta High Court in Kali Prasanna Sil v. Panchanan Nandi I.L.R (1916) Cal. 367. With all deference to the Judge who decided that case I feel some doubt as to whether the two decisions cited in support of their view of the law really go the length of deciding that there is in the fullest .sense of the term no jurisdiction in an appellate Court to allow the withdrawal of a suit with liberty to file a fresh suit on the same cause of action. Those decisions appear to me to go no further than holding that the orders made in those cases by the appellate Court were orders which ought not to have been made, and though in one of them the word 'jurisdiction' is used 1 do not think the Court meant to convey that there was no power to make the order but rather that the order was an improper order upon the facts. Here we are considering a question of jurisdiction in the strict sense of the word. Therefore from the decisions of this Court and on the Full Bench decision of the Madras High Court as well as on the wording of the Code itself I concur in the judgment pronounced by my learned brother.
12. Some attempt has been made in argument to distinguish between cases in which a withdrawal has bean allowed on the ground that the evidence in favour of the party asking for leave is insufficient, and those cases which it is suggested more properly fell within the terms of Order XXIII, Rule 1. From what has been said it must follow that an appellate Court and an original Court stand upon the same footing in this matter, and without endeavoring to lay down any exhaustive definition of what are sufficient grounds within the meaning of this Rule-for I do not think it is necessary to do so here -I find it enough to say upon this point that if a Court, applying its mind to the facts before it, is of opinion that those facts constitute sufficient grounds, then I find it impossible to hold, even though the Court might be mistaken in its view, that the Court had no jurisdiction to make an order within the terms of Order XXIII, Rule 1.
13. On these grounds, therefore, [ concur in the judgment pronounced and in the order proposed.