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Ram Krishna and ors. Vs. Ram Kirpa and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in14Ind.Cas.97
AppellantRam Krishna and ors.
RespondentRam Kirpa and anr.
Excerpt:
civil procedure code (act v of 1908), order xxiii, rule 1 - withdrawal of suit--formal defect--discretion--irregularity. - - thus, the two main points, which bad been put in defence, had been tried out by the court of first instance. that order requires that the court must be satisfied either that the suit must fail by reason of some formal defect, or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit......order requires that the court must be satisfied either that the suit must fail by reason of some formal defect, or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. where the record shows no formal defect or no sufficient grounds or where the appliaction for permission to withdraw states in detail no formal defect or sets out in detail no sufficient grounds and the learned judge as in this case does not go so far as to say what those formal defects are or what those sufficient grounds are, the learned judge in granting permission acts with material irregularity. it must be remembered that even on the case being argued before me, no attempt was made to suggest even one formal defect or ore sufficient ground. the argument on behalf of the.....
Judgment:

George Knox, J.

1. This application for revision arises out of an order passed by the District Judge of Banda. The suit in which the order was passed was a suit for sale brought on the foot of a mortgage, dated the 24th of January 1901. The mortgage was one by one Rao Mohan Prasad in favour of one Ram Sahai. The contention of the plaintiff was that the defendants had benefited by the loan and were, therefore, liable. The defendants denied the genuineness of the bond and said that there was no legal necessity. The Court of first instance found that the bond was proved and that there was no legal necessity. Thus, the two main points, which bad been put in defence, had been tried out by the Court of first instance. The plaintiffs went in appeal but before the decision of the appeal, they put in a petition to withdraw the suit. The application contains no reason whatever beyond these vague words, for some defects the suit cannot proceed further. No allegation was made what those defects were. The District Judge passed the following order: 'The plaintiff applies for permission to withdraw. He is accordingly permitted to withdraw with liberty to file a fresh suit if not otherwise barred. He will pay the costs of the defendants in both Courts.'

2. The defendants object to this order and say that it is an order which was passed by the District Judge acting illegally and without jurisdiction, and that, as the case had been tried by the Court of first instance, the plaintiff should not have been given permission to withdraw the suit with liberty to bring a fresh suit. In support of this contention, I have been referred to the case of Kharda Co., Ld. v. Durga Charan Chandra 11 0. L.J. 44 : 5 Ind. Cas. 187 also Mahulla Sardar v. Rani Hemangini Devi 11 C.L.J. 612 : 6 Ind. Cas. 629. While this Court is unwilling to interfere under Section 115 and to grant revisions, still, if it is shown that in the exercise of its jurisdiction the Court has acted illegally or with material irregularity, this Court will exercise that power. I think this is exactly a case in which this Court should exercise its power. There is nothing to show that the learned Judge exercised any judicial mind or considered whether there was any ground upon which he could grant permission to withdraw under Order XXIII, Rule 1 of the Code of Civil Procedure. That order requires that the Court must be satisfied either that the suit must fail by reason of some formal defect, or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. Where the record shows no formal defect or no sufficient grounds or where the appliaction for permission to withdraw states in detail no formal defect or sets out in detail no sufficient grounds and the learned Judge as in this case does not go so far as to say what those formal defects are or what those sufficient grounds are, the learned Judge in granting permission acts with material irregularity. It must be remembered that even on the case being argued before me, no attempt was made to suggest even one formal defect or ore sufficient ground. The argument on behalf of the opposite party was, from first to last, merely a contention that this was not a case for revision, inasmuch as the Judge had jurisdiction to entertain the application for permission to withdraw and to grant the same. If it were shown to me that some formal defect or some sufficient ground did exist, the matter would have been otherwise. I can infer from their silence that the defects and grounds are not of a very convincing order. The order of the learned Judge is set aside and the case will go back to him with instructions to place the appeal upon the file of pending appeals and to dispose of it according to law. Costs will follow the event.


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