1. The application asks for the revision of an order of the Additional Subordinate Judge of Etawah, dated 31st January 1930, allowing the suit to be withdrawn with leave to file a fresh suit. Now before such an order can be passed under Order 23, Rule 1, the Court must be satisfied in terms of Sub-rule (2) that the suit must fail by reason of some formal defect, or that there are sufficient grounds for allowing the plaintiffs to institute a fresh suit for the subject-matter of the suit or part of the claim. I have had the facts, as I believe, fully stated before me by Dr. Vaish. I have not had the advantage of hearing anybody on behalf of the opposite party or parties. The order of the lower appellate Court under Order 23, Rule 1 (2), should have been in such terms as to make it possible for this Court to be satisfied that there was, prima facie at any rate, proper ground for the Court's order. The judgment before me in revision says:
I have considered the application. The arguments in appeal were heard some time back. The defect appears to be a formidable one. No harm will come to any party if a status quo is restored and the appellant compensated by costs. The application is allowed. The plaintiff is allowed to file a fresh suit on the same cause of action.
2. There is nothing whatever in this order to enable this Court to feel in the least satisfied that the learned Judge had present to his mind the provisions of 0, 23, Rule 1. The statement that 'the arguments in appeal were heard some time back' seems irrelevant to the order that the learned Judge was passing. The statement that 'no harm will come to any party if the status quo is restored' while it may be relevant for consideration, is by no means a primary reason for passing an order such as the present. There is no indication whatever as to how the result of the defects named might be to unjustly cause the plaintiff to fail. At the same time, as I have not had the advantage of hearing anybody on the other side, it is not desirable when cancelling this order to put it out of the learned Judge's power to pass a fresh order to the same effect properly framed.
3. Orders under Order 23, Rule 1, are not to be lightly passed, and when passed are not to be lightly set aside. But the latter proposition presupposes that there is ground for believing that the learned Judge has applied a judicial discretion to the point before him for decision: see Jagmohan v. Ram Khilawan : AIR1929All683 . I set aside the order of the lower appellate Court and direct it to restore the appeal to its original number and to take it up from the stage at which it had arrived when Mt. Bitola, the plaintiff and respondent 1, in the appeal, filed her second application of 31st January 1930. He will hear again any counsel who desire to be heard on that application, and if he then finds himself in a position, as he may find himself, to write an order showing himself to be satisfied as to the points set out in Order 23, Rule 1 (2), he will pass such an order. If he on the other hand arrives at the decision that the application must be rejected, he will then after giving the parties an opportunity of re-arguing the appeal, proceed to decide the appeal. The direction in favour of allowing the parties to re-argue the appeal is necessary in view of the fact that so much time has passed since the arguments were heard.
4. Allowing the application in revision I set aside the order of the lower appellate Court dated 1st January 1930, allowing the suit to be withdrawn, and direct the learned Judge to take up the appeal again in accordance with the above observations. The costs of this application will abide the result.