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Rahmat Ullah and ors. Vs. Rai Saheb Chaudhri Dharam Singh - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in64Ind.Cas.948
AppellantRahmat Ullah and ors.
RespondentRai Saheb Chaudhri Dharam Singh
Excerpt:
civil procedure code (act v of 1908), section 115 - revision--application to withdraw suit with liberty to bring fresh suit--order--jurisdiction, exercise of. - - it did not consider whether there was any ,or what defect in the suit or what other reason existed on account of which the suit was likely to fail, and it apparently did not consider anything in the matter......to withdraw from the suit, nor did he state the defects which precluded him from carrying on the suit. on this application the only order passed by the court was, 'allowed.' from this order of the court of first instance the present application for revision has been brought under section 115 of the code of civil procedure. in my opinion the court of first instance must be held not to have exercised its jurisdiction as required by law. it did not consider whether there was any , or what defect in the suit or what other reason existed on account of which the suit was likely to fail, and it apparently did not consider anything in the matter. so that in simply making the order 'allowed,' it cannot be held to have exercised its jurisdiction in the matter of the plaintiff's application and.....
Judgment:

P.C. Banerji, J.

1. This is an application for revision made under the following circumstances. The plaintiff brought a suit claiming several reliefs. Some of these reliefs were granted by the Court of first instance, which decreed a part of the claim and dismissed the remainder of it. The defendant submitted to the decree, but the plaintiff preferred an appeal as regards the portion of the claim which had been dismissed. The lower Appellate Court, being of opinion that the Court of first instance had not decided the case properly, remanded it to that Court with directions to re-try it. When the case went to trial, the plaintiff put in an application in which he stated that the defendant had submitted to the decree granted to him (the plaintiff) but that the plaintiff did not wish 'for some reasons and defects' to proceed with the suit, and asked that he should be permitted to abandon that part of the suit which had been originally dismissed by the Court of first instance with liberty to bring a fresh suit. He did not in the application assign the reasons for which he wished to withdraw from the suit, nor did he state the defects which precluded him from carrying on the suit. On this application the only order passed by the Court was, 'allowed.' From this order of the Court of first instance the present application for revision has been brought under Section 115 of the Code of Civil Procedure. In my opinion the Court of first instance must be held not to have exercised its jurisdiction as required by law. It did not consider whether there was any , or what defect in the suit or what other reason existed on account of which the suit was likely to fail, and it apparently did not consider anything in the matter. So that in simply making the order 'allowed,' it cannot be held to have exercised its jurisdiction in the matter of the plaintiff's application and to have considered and decided it. In this view I must send back the case to the Court of first instance, with directions to take up the application of the plaintiff for leave to withdraw and to consider it and then pass orders in accordance with law. Costs here and hitherto will abide the result.


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