1. This is an application in revision under Section 115, Civil P.C., against an order allowing the withdrawal of a suit with permission to file a fresh suit under the provisions of Order 23, Rule 1. The order was passed by the appellate Court after arguments had been heard, though it appears that the parties were heard on the application to withdraw before final orders were passed. The facts on which the withdrawal has been allowed are these:
In the trial Court the plaintiff had applied to have a survey of the disputed spot made by some competent person. This application had been accepted and the Munsif had asked the District Engineer to depute an officer to make a survey. The District Engineer nominated an officer and intimated that his fee would be Rs. 50. It appears that on the date fixed for hearing, the Munsif gave the plaintiff the option of postponing the examination of his witnesses or dispensing with the survey. The plaintiff, unwilling no doubt, decided to go on with his evidence at once, but afterwards renewed his application for a survey to be made. This application was rejected and the case was decided against him. The appellate Court considered that the absence of this evidence was a formal defect on account of which the suit must fail and passed the order which is the subject of this application.
2. The respondent raises a preliminary objection that no revision lies. I am bound to say that I find it impossible to distinguish this case from that of Jhunku Lal v. Bisheshar Das AIR 1918 All 418. In both cases the permission to withdraw was given at a very late stage after arguments had bean heard. In the reported case the permission was given on the ground that the plaintiffs had failed to give formal proof of a plaint which was essential to their success. Here the ground is that the plaintiff had failed to obtain a survey by an expert which was essential to his success. The Court held that where the trial Court had exercised its discretion, even though it exercised it wrongly no revision was entertainable. It is pointed out that I have considered and distinguished this case in Ganga Prasad v. Mt. Kishni : AIR1925All466 . That however was a case in which the Court had exercised no real discretion at all, but had accepted a vague allegation of unspecified defect in the plaint without any examination as sufficient material for permitting a withdrawal. It is further urged that in this case the learned Subordinate Judge has not expressly stated in his judgment that the defect is one on account of which the suit must, in his opinion, fail; but this is in my opinion, clearly implied in his order.
3. I therefore give effect to the preliminary objection and dismiss the application.
4. On the merits the order complained of was undoubtedly an order which the Subordinate Judge ought not to have passed. If he thought that a survey should have been carried out and that the evidence of the person who carried it out was necessary for the decision of the Court, it was open to him to have the survey made and record that evidence before deciding the appeal. A Court ought to be very cautious before allowing an application for withdrawal when the case has reached the stage of appeal, even though, as here, it orders the entire costs of the defendant to be paid by the plaintiff.
5. Holding that the order was on the merits an order which ought not to have been passed, I allow no costs of this application.