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imam Baksh and ors. Vs. Ilahi Baksh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1875)ILR1All324
Appellantimam Baksh and ors.
Respondentilahi Baksh and ors.
Excerpt:
act viii of 1859, sections 7, 97 - omission of part of claim --withdrawal of suit--institution of fresh suit, including part of claim omitted. - .....the first plea, it would seem that the reason for which the former suit was withdrawn was that a fresh suit might he brought which should include a portion which had been omitted before of the claim arising out of the cause of action, and the permission to bring the new suit must be reckoned to be permission to supply the former omission. this being so, we are of opinion that the additional portion of the claim in this suit is not barred by section 7, act vtii of 1859. a similar view was taken in special appeal case no. 180 of 1870, decided by a bench of this court on the 28th april last.*-------------------------------------foot note-----------------------------------* in that case the application for permission to withdraw the former suit was based on ther ground that a portion of.....
Judgment:

1. As to the first plea, it would seem that the reason for which the former suit was withdrawn was that a fresh suit might he brought which should include a portion which had been omitted before of the claim arising out of the cause of action, and the permission to bring the new suit must be reckoned to be permission to supply the former omission. This being so, we are of opinion that the additional portion of the claim in this suit is not barred by Section 7, Act VTII of 1859. A similar view was taken in special appeal case No. 180 of 1870, decided by a Bench of this Court on the 28th April last.*

-------------------------------------Foot Note-----------------------------------

* In that case the application for permission to withdraw the former suit was based on ther ground that a portion of the claim arising out of the cause of action had by mistake been ommitted to be included in the plaint with which that suit had been commenced, and on that ground permission for the withdrawal of the suit and to bring a fresh suit was accorded. Under these circumstances the Court (Pearson and Spankie, JJ.) was of opinion that it would not be fair or reasonable to hold that the aforesaid portion of the claim could not lie entertained in the fresh suit, although it might be true that the defect in the former plaint might have been amended without recourse to the provisions of Section 97 of Act VIII of 1859.


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