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Bharat Singh Vs. Jawali and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All34; 37Ind.Cas.940
AppellantBharat Singh
RespondentJawali and ors.
Cases ReferredGenda Mal v. Pirbhu Lal
Excerpt:
appeal, second - decree dismissing suit hut granting permission to bring fresh suit, construction of--appeal against granting permission to bring fresh suit, whether maintainable--civil procedure code (act v of 1908), order xxiii, rule 1. - - the plaintiffs claimed to be the purchasers of the equity of redemption under an alleged mortgage, dated about the year 1877. when they brought their suit they altogether failed to prove their mortgage. if we are right in considering it a decree, an appeal clearly lay......was made by the plaintiffs for permission to withdraw their suit with liberty to bring a fresh suit. on the other hand they appealed alleging that there was sufficient evidence to prove the mortgage; secondly, that the court ought to have allowed them time to produce evidence. thirdly, that the court had taken a wrong view as to the burden of proof. fourthly, (the same as the second,) that they should have been allowed further time. the court of first appeal after considering these grounds gave judgment stating that the plaintiffs had been guilty of great laches and that he saw no reason for allowing the appeal. the judgment goes on: however, in upholding the order of the lower court, i order that the appellant hereby has permission to sue again when he has collected his.....
Judgment:

1. The facts connected with this appeal are shortly as follows: The plaintiffs claimed to be the purchasers of the equity of redemption under an alleged mortgage, dated about the year 1877. When they brought their suit they altogether failed to prove their mortgage. The Court of first instance dismissed the suit on this ground. No application was made by the plaintiffs for permission to withdraw their suit with liberty to bring a fresh suit. On the other hand they appealed alleging that there was sufficient evidence to prove the mortgage; secondly, that the Court ought to have allowed them time to produce evidence. Thirdly, that the Court had taken a wrong view as to the burden of proof. Fourthly, (the same as the second,) that they should have been allowed further time. The Court of first appeal after considering these grounds gave judgment stating that the plaintiffs had been guilty of great laches and that he saw no reason for allowing the appeal. The judgment goes on: However, in upholding the order of the lower Court, I order that the appellant hereby has permission to sue again when he has collected his evidence provided that this cause of action is still continuing.' The judgment was followed by a regular decree which provides that the decree of the Court of first instance was upheld, but that the plaintiff had permission to sue again when he had collected his evidence. The plaintiffs did not appeal against this decree but the defendants appealed against so much of it as purported to permit the plaintiff to bring a fresh suit. When the appeal came before a learned Judge of this Court he referred certain issues, the finding on which was that the plaintiffs had come into Court without proper proof and they had disclosed no sufficient reason for not having their proof ready. The learned Judge of this Court, however, has held that no appeal lay, treating the appeal as one against an order under Order XXIII, Rule 1. The defendant has preferred this appeal under the Letters Patent and contends that there has been a decree dismissing the plaintiff's suit, that there has been no order allowing the plaintiffs permission to withdraw the suit with liberty to bring a fresh suit, ' and that, as a matter of fact, the plaintiffs neither applied to withdraw their suit nor were granted permission to withdraw, It seems to us that this contention has force. The Court of first instance deliberately dismissed the plaintiffs' suit. The lower Appellate Court upheld that decree. The result is that the plaintiffs' suit has been finally dismissed by both the Courts and the plaintiffs have preferred no appeal against the dismissal in the lower Appellate Court. The appeal to this Court was not an appeal from an order granting the plaintiff liberty to withdraw---it was an appeal against that portion of the decree which was in the plaintiffs' favour Reliance is placed on the case of Genda Mal v. Pirbhu Lal 17 A. 97 : A. W. N. (1895) 17 : 8 Ind. Dec. (N.S.) 387, In that case the facts were quite different. The suit came before a Munsif and the plaintiff applied for permission to withdraw his suit with liberty to bring a fresh suit. The Munsif declined to give the permission and made a decree dismissing the suit. The plaintiff appealed and urged in the lower Appellate Court that there was sufficient ground for granting him permission to withdraw his suit and that the Munsif ought to have granted him that permission. The Court of first appeal thought that the contention of the plaintiff was right and that the Munsif ought to have allowed him to withdraw from the suit. He, therefore, set aside the Munsif's decree dismissing the suit and granted the plaintiff permission to withdraw with liberty to bring a fresh suit. It was against that order that an appeal was preferred to the High Court which held that no appeal lay under the circumstances. This was the only point that was decided in that case. In our opinion, it is quite impossible to treat the decree of the lower Appellate Court in the present case as an order granting the plaintiff permission to withdraw his suit with liberty to bring a fresh suit. If we are right in considering it a decree, an appeal clearly lay. We allow the appeal, set aside the decree of this Court and also of the lower Appellate Court and restore the decree of the Court of first instance with costs in all Courts.


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