1. This is an application in revision against an order passed by the learned Subordinate Judge of Jaunpur in the following terms:
The counsel on the other side has no objection excepting as to costs. The petition is therefore allowed provided that the applicant do pay to the other side all the costs of the litigation within two months hence; failing which the application, shall stand dismissed with costs.
2. The application to which the order refers was one for permission under Order 23, Rule 1 to withdraw a suit with permission to bring a fresh suit about the same subject-matter. The suit was one for a declaration that a transfer by a Hindu widow in possession of property was not binding upon the reversioners. The question at issue was whether the transferee was the son of the sister of the last male owner of the property. The plaintiff failed in the trial Court and made the application in appeal which led to the order against which this revision has been filed. The only ground he gave in his application was that it was inopportune to have filed the suit while the widow was still alive. However that may be, the fact remains that the present applicant did not object to the order passed by the Court below in that Court. Counsel for the applicant stated that they had no objection to the order provided that they got their costs. It has been suggested that counsel went beyond their authority in agreeing to the order which was passed, but the terms of the vakalatnama have been read to me and it is clear that the authority given to counsel was very wide. It included an authority to enter into a compromise or settlement. In these circumstances I do not think it can fairly be said that counsel were not representing the applicant when they accepted the application of the plaintiff that the suit should be withdrawn with liberty to bring a fresh suit.
3. The main argument which has been addressed to me is that the order of the learned Subordinate Judge was passed without jurisdiction and that counsel for the applicant in that Court could not by their consent confer jurisdiction upon the learned Judge. This argument is based upon the authority of the rulings of some other Courts, but it appears to me that it is unnecessary to go beyond the series of decisions in this Court upon this question of the effect of Order 23, Rule 1, Civil P.C.
4. It has been laid down in Jhunku Lal v. Bisheshar Das (1819) 5 A.I.R. All. 418 that this Court will not interfere in revision with an order granting permission to withdraw from a suit and to file a fresh suit about the same subject-matter if it appears that the Court which passed the order applied its mind to the dispute. That ruling has been followed consistently in later rulings. There are a number of cases to which reference has been made in the course of arguments in which this Court has interfered with such orders, but in all these cases the point was that the Court had passed the order without really applying its mind to the question in dispute. It cannot be said that the rulings of this Court lead to the conclusion that a Court which passes an order under Order 23, Rule 1 has no jurisdiction in the strict sense of the term unless it can be stated that there is some formal defect in the suit or some reason of a similar kind which would justify an order of that nature. The rulings of this Court show that interference, when this Court does interfere, is based upon the fact that the Court below has really failed to exercise its discretion in going into the question in dispute. That being so it seems to me that the present is not a case in which there should be interference. When the application was made by plaintiff for permission to withdraw his suit it was naturally referred to the other side and if the other side stated that they had no objection provided that they got their costs it cannot be said that the Court below failed to exercise any jurisdiction invested in it. It would be called upon to go into the question whether a formal defect or other sufficient cause existed only if the opposite party denied that there was any such defect or sufficient cause. If the party did not deny it there was really nothing for the learned Judge to examine and he naturally passed an order about which the parties were essentially in agreement. That being so, it cannot be said in my opinion that he failed to exercise a jurisdiction invested in him by law. I therefore reject this application with costs.