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Pirbhu Lal Vs. Genda Mal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All97
AppellantPirbhu Lal
RespondentGenda Mal and anr.
Excerpt:
.....board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised..........of the munsif the plaintiff asked permission to withdraw from the suit with liberty to bring a fresh suit. the munsif declined to give such permission, and finally made a decree dismissing the suit. the plaintiff appealed from that decree, and in the court of first appeal he urged that there were sufficient grounds for the granting of permission to him to withdraw the suit with liberty to bring a fresh suit. the judge of the court of first appeal, holding that view, gave permission under section 373 of act no. xiv of 1882, to the plaintiff to withdraw the suit with liberty to bring a fresh suit, and stated that the result would be that the decree of the munsif would be set aside. that order was within the power of the court of first appeal by reason of section 582 of the code. from.....
Judgment:

John Edge, Kt., C.J. and Banerji, J.

1. This is an appeal brought by the defendants in the suit under Section 10, of the Letters Patent. In the Court of the Munsif the plaintiff asked permission to withdraw from the suit with liberty to bring a fresh suit. The Munsif declined to give such permission, and finally made a decree dismissing the suit. The plaintiff appealed from that decree, and in the Court of first appeal he urged that there were sufficient grounds for the granting of permission to him to withdraw the suit with liberty to bring a fresh suit. The Judge of the Court of first appeal, holding that view, gave permission under Section 373 of Act No. XIV of 1882, to the plaintiff to withdraw the suit with liberty to bring a fresh suit, and stated that the result would be that the decree of the Munsif would be set aside. That order was within the power of the Court of first appeal by reason of Section 582 of the Code. From that order granting permission the defendants appealed to this Court. The appeal lay to a single Judge, and our brother BLAIR, holding that no appeal lay from an order under Section 373 of Act No. XIV of 1882, dismissed the appeal. From that decree of our brother Blair the defendants have brought this appeal. Mr. Simeon, for the appellants, has relied upon the decision of Mr. Justice Straight in Ganga Ram v. Data Ram, I.L.R. 8 All. 82, which case was very similar to the present, there having been there a decision by the first Court and permission granted under Section 373 by the first appellate Court. On the other hand Mr. Viddya Charan Singh relies upon the decision of Mr. Justice Oldfield and Mr. Justice Brodhurst in Kalian Singh v. Lekhraj Singh I.L.R. 6 All. 211, the decision of our brother Burkitt in Jagdesh Chaudhri v. Tulshi Chaudhri I.L.R. 16 All. 19, the decision of our brother Aikman in Zahun v. Dina Nath Weekly Notes for 1893, p. 204, and the decision of Mr. Justice Trevelyan and Mr. Justice G. Banerji, in the case of Jagodindro Nath v. Sarat Sunduri Debt I.L.R. 18 Cal. 322. In support of the appeal there is merely the decision of Mr. Justice Straight. In the case in which he expressed that opinion Mr. Justice Tyrrell, who was sitting with him, expressed no opinion on the point. There are thus in support of the contrary view the decisions of Mr. Justice Oldfield, Mr. Justice Brodhurst, Mr. Justice Trevelyan, Mr. Justice G. Banerji, Mr. Justice Burkitt, Mr. Justice Aikman and the decision at present under appeal of Mr. Justice Blair. The balance of authority is certainly in favor of the respondent. When permission is given under Section 373 there is no formal or other expression of an adjudication upon any right claimed or defence set up, and such a permission does not decide the suit, or, if the permission be given in the course of an appeal, the appeal or the suit. Consequently, the order giving permission is not a decree as defined in Section 2 of Act No. XIV of 1882. It is, however, an order granting permission, but it is not one of the orders which is appealable under Section 588 of the same Act. When an order is made under Section 373 in the course of an appeal permitting the plaintiff to withdraw the suit with liberty to bring a fresh suit, it decides nothing as to the merits of the decree of the first Court, but it merely wipes out that dercre by reason of the suit being withdrawn. We dismiss this appeal with costs.


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