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Kali Ram and anr. Vs. Dharman and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All214; 147Ind.Cas.441
AppellantKali Ram and anr.
RespondentDharman and anr.
Excerpt:
- - the trial court dismissed the suit on the ground that the plaintiffs had failed to prove their pedigree. they based their application upon the fact that they had failed to give formal proof of a plaint which was essential to their success. 580. the last mentioned case was decided by a bench of two judges and ib was clearly held that where a court had jurisdiction to entertain an application under order 23, rule 1, and came to the conclusion that there was some ground for allowing the suit to be withdrawn, then the order could not be challenged under section 115, civil p......under order 23, rule 1 permitting the plaintiffs to withdraw a suit with liberty to institute a fresh suit in respect of the same subject matter. the suit was for possession of certain property on the ground that the plaintiffs are the next heirs of the last male owner. the principal defence was that the plaintiffs were not the next reversioners and that the pedigree which they set up was wrong. the trial court dismissed the suit on the ground that the plaintiffs had failed to prove their pedigree. the plaintiffs appealed and the appeal was argued at length before the lower appellate court; but at this late stage the plaintiffs asked for permission to withdraw their suit and appeal, with liberty to institute a fresh suit in respect of the same subject matter. permission was granted as.....
Judgment:

King, J.

1. This is an application for revision ofan order passed by the lower appellate Court under Order 23, Rule 1 permitting the plaintiffs to withdraw a suit with liberty to institute a fresh suit in respect of the same subject matter. The suit was for possession of certain property on the ground that the plaintiffs are the next heirs of the last male owner. The principal defence was that the plaintiffs were not the next reversioners and that the pedigree which they set up was wrong. The trial Court dismissed the suit on the ground that the plaintiffs had failed to prove their pedigree. The plaintiffs appealed and the appeal was argued at length before the lower appellate Court; but at this late stage the plaintiffs asked for permission to withdraw their suit and appeal, with liberty to institute a fresh suit in respect of the same subject matter. Permission was granted as prayed. Hence thi9 application in revision. For the applicants it is argued that the Court below had no jurisdiction to grant permission for withdrawal and institution of a fresh suit upon the grounds stated in its order. The grounds given by the Court below are that the case was not properly conducted on behalf of the plaintiffs, who are minors, and that their guardian was an ignorant woman ; that some formal evidence had not been produced ; and that some defective evidence which the trial Court held to be inadmissible had been produced in proof of the plaintiffs' pedigree. On these grounds the Court held that it was a pro-par case for passing an order under Order 23, Rule 1.

2. The argument of the applicants' learned jadvooate is that there is no formal defect jsueh as would justify an order under Order 23, Rule 1(2)(a) and that the 'other sufficient grounds' mentioned in Sub-rule (2)(b) must be construed as being grounds of a similar nature to the grounds mentioned in Sub-rule 2(a), that is they should be something of the nature of for-|mal defects. No clear authority has been llaid before us for interpreting the rule in this manner, and the rule can be interpreted so as to give the Court authority to pass an order upon any grounds which appeared to it to be 'sufficient grounds,' whether they are in the nature of formal defects or not. In the present case, it must be noted, that the Court below passed an order at a very late stage of the case. In ithe trial Court the plaintiffs never asked for permission to withdraw their suit with jliberty to institute a fresh suit. Even in the Court below, the case was fully argued out and only at the last moment did the plaintiffs think of applying to withdraw the suit. For this reason alone we think that the order passed by the Court below iwould be difficult to uphold upon its merits. The reasons given for the order, moreover, do not seem to us very convincing. It practically means that the plaintiffs wish to adduce fresh evidence to fill up the gaps in their case, and therefore want an opportunity of having the case tried over again. If we considered ourselves entitled to set aside the order of the Court below merely because it did not appear to have exercised a proper discretion, we should be prepared to do so. For the respondents however we have been referred to a series of rulings of this High Court showing that the view has consistently been held that when the Court has applied its mind to the question of permitting the withdrawal of a suit under Order 23, Rule 1(2) and has exercised its discretion, its order should not be interfered with by the High Court in the exercise of ' its revisional power. The leading case on this point in this Court is that of Jhunku Lal v. Bishesivar Das A.I.R. 1918 All. 418. The facts of the case were as follows : A suit had been instituted in the Munsif's Court. After the evidence had concluded and either during or after the arguments, the plaintiffs applied for leave to withdraw with liberty to bring a fresh suit. They based their application upon the fact that they had failed to give formal proof of a plaint which was essential to their success.

3. The Court granted leave to bring a fresh suit. Upon an application in revision against this order, it was held by a Divisional Bench of two Judges, that the Court had jurisdiction to grant leave to the plaintiffs to bring a fresh suit, and the fact that the Court may have exercised, and probably did exercise, a wrong discretion in granting the plaintiffs' application was not sufficient to bring the case within the purview of Section 115, Civil P.C. This ruling has been followed in a series of rulings of this Court, viz., Nannhu v. Boshan Singh A.I.R. 1924 All 121, Kamta Prasad vBam Batan : AIR1926All548 , Hasan AH v. Lachhman Prasad : AIR1927All750 , Chandrika Lai v. Sami Nath : AIR1929All133 and Jagdamba v. Hori Lal (1930) 125 I.C. 580. The last mentioned case was decided by a Bench of two Judges and ib was clearly held that where a Court had jurisdiction to entertain an application under Order 23, Rule 1, and came to the conclusion that there was some ground for allowing the suit to be withdrawn, then the order could not be challenged under Section 115, Civil P.C., even if it be found that the Court had exercised a wrong discretion in granting the application. The learned advocate for the applicants has not been able to cite any ruling of this Court in which a contrary view has been taken since the decision in the leading case of Jhunku Lai v. Bisheshwar Das A.I.R. 1918 All. 418. We think that we are bound to follow the view which has been consistently taken by Benches of this Court from the year 1918. According to this view, although we have already expressed our opinion that the Court below did not exercise a right discretion, nevertheless, we should not interfere in the exercise of our revisional powers. Tbe application is therefore dismissed with costs.


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