1. In permitting the plaintiff to withdraw this suit with liberty to bring a fresh one, notwithstanding that the trial had been going on for several days, and the evidence concluded and the case fixed for final argument, I would hold that the learned Judge misdirected himself as to the principles which should have guided him in exercising his discretion. The fourth paragraph of his judgment sets out the principle which he thinks should be adopted. It is in effect that if a plaintiff finds at the trial that he may fail because his evidence is scanty, he should be given another chance of bringing another suit to supplement his scanty evidence. That principle is not the law of this land, If it were, it would doubtless lead to a great deal of perjury and to a vast increase of litigation and hardship on innocent litigants. That being so, it is open to us to revise the discretion which the learned Judge exercised.
2. Doing that, it appears that the only ground on which the trial application was based is that certain documents in the possession of the plaintiff which he deliberately suppressed until the trial of the suit and which were consequently disallowed by the learned Judge ought now to be put in evidence and an opportunity given for that purpose. There again the plaintiff has deliberately violated another wholesome principle, viz., that parties should disclose their relevant documents in dispute, and not keep them back until the trial is in progress.
3. Under these circumstances, we think the application at that late stage of the trial to withdraw the suit with liberty to bring a fresh one ought to have been refused.
4. The result is that the rule must be made absolute, the order of the Court below discharged, and the case remanded to be determined according to law, and to proceed from the stage at which it left off, the evidence having been closed on both sides and the case set down for argument.
5. The respondent to pay the applicants' costs of this application in any event,
6. I agree, I think this is essentially not a case in which permission td bring a fresh suit should have been given. The documents in question were in the plaintiff's possession and apparently they were deliberately withheld at the proper time, so as to surprise the other side with them in cross-examination. Ultimately they were tendered at a very late stage in the case, when both the parties had closed their evidence and it had been fixed for arguments. The learned Subordinate Judge has endeavoured to justify his action under Section 151 of the Civil Procedure Code, but it is admitted in this Court that it cannot be made good under that section. Under Order XXIII, r, 1, the only grounds on which permission to institute a fresh suit can be granted are where the Court is satisfied that a suit must fail by reason of some formal defect, or for other sufficient reasons. It does not seem to me that by any stretch of imagination we can say that the grounds which exist in this case, the plaintiff's failure to comply with the rules of procedure-a failure which appears to have been deliberate-can be a sufficient ground for allowing him to re-open the whole cane and so to make good his scanty evidence.
7. I accordingly agree that the rule must be made absolute.