1. This is an application in revision under Section 115, Civil P.C., against an order of the Additional Subordinate Judge of Jaunpur allowing the plaintiffs-respondents to withdraw a suit decided against them by the Munsif of Shahganj (Jaunpur) under Order 23, Rule 1(2).
2. The plaintiffs brought a suit to redeem a certain mortgage. It was dismissed by the trial Court on the ground that Bipat from whom the plaintiffs purchased the equity of redemption was no relation or successor-in-interest of the original mortgagor Jhagru. The plaintiffs set up relationship between Bipat and Jhagru through one Biru, alleged to be the great-grand-father of Jhagru and the great-great-grandfather of Bipat. The Munsif, after a careful judgment, held that no relationship was proved between Bipat and Jhagru. The plaintiffs appealed to the Subordinate Judge of Jaunpur. One of the grounds of appeal was that the trial Court had failed to take into consideration certain documents filed by the plaintiffs. The lower appellate Court passed an order in respect of one document that the lower Court had rightly refused to take it into consideration, because the plaintiff's had failed to prove it. The plaintiffs-appellants then put in an application for permission to withdraw the suit with liberty to bring another on the ground that their failure to prove this document was due to a mistaken belief that the defendants' pleader had admitted the document. They also alleged that a certain name entered in the pedigree attached to the plaint was blurred, and the lower Court had misread it. They appear to have suggested that if allowed to bring a fresh suit they could properly prove the document which they had failed to prove and could put in a clearly-written pedigree.
3. The Subordinate Judge, without giving any reason for exercising his discretion under Order 23, Rule 1(2), wrote an order as follows:
Cause sufficient. The plaintiff-appellant is allowed to withdraw the suit with liberty to bring a fresh suit on the same cause of action.
4. It is clear that, assuming that the lower appellate Court acted under Clause (to), Rule 2, Order 23, there was in reality no sufficient ground for allowing the plaintiffs to withdraw their suit with liberty to bring another suit. If justice required that the plaintiffs should be allowed to prove the document, which they had failed to prove, the lower appellate Court should have allowed them to do so. It was absurd for that Court to say that the suit must fail, because they had failed to prove a necessary document and then to say that they may bring another suit. Again the allegation in the application for withdrawal as to the blurring of a name in the pedigree had no basis. The lower appellate Court was entitled to read the blurred words as it liked.
5. It is urged under Section 115 it is necessary to hold that the lower appellate Court acted in exercise of its jurisdiction illegally or with material irregularity. The material irregularity consists in the fact that there was no material before the Court on which it was entitled to exercise the discretion allowed under Order 23, Rule 1. If there had been such material, the failure of the Court to record its reasons might have been ignored. In default, however, of the record showing any such material, or I should rather say that when the record shows that there was no such material, it must be held that the failure of the Court to give its reasons supports, what is otherwise evident from the record, that there was no material on which the Court could exercise a discretion to allow the withdrawal of the suit with liberty to bring another suit. Where a Court purports to exercise a discretion which the law does not give it, except in circumstances not shown to exist, the Court must be deemed to have acted without jurisdiction. For the above reasons I allow the application with costs. The order of the lower appellate Court allowing the plaintiffs liberty to bring a fresh suit is set aside, and the lower Court is directed to proceed with the hearing of the appeal. In the hearing of the appeal it will exercise the discretion allowed by law to admit further evidence to prove any document, but this must not be construed to mean that it is bound to admit such further evidence. The Court must exercise its discretion.