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Musammat Afzal Begam Vs. Musammat Akhari Khanam and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1915All123; 28Ind.Cas.857
AppellantMusammat Afzal Begam
RespondentMusammat Akhari Khanam and ors.
Cases ReferredGanga Ram v. Data Ram
Excerpt:
.....order xxiii, rule 1(2) - withdrawal of unit--appellate court, power of, to grant permission to withdraw suit with liberty to bring fresh action--jurisdiction. - - order xxiii, rule 4, distinctly lays down that nothing in the order shall apply to any proceedings in execution of a decree or order, thereby superseding the decision that a court executing a decree could give such permission. (1886) 6. a good deal may, no doubt, be said against the view taken by this court; then it is contended that even if the district judge had jurisdiction to act under order xxiii, rule 1, he had exercised his jurisdiction in an unreasonable way, that he has not found that the suit would fail on account of a formal defect and that the ground given by the district judge is really no ground for allowing..........we propose to adhere to the decision of this court. then it is contended that even if the district judge had jurisdiction to act under order xxiii, rule 1, he had exercised his jurisdiction in an unreasonable way, that he has not found that the suit would fail on account of a formal defect and that the ground given by the district judge is really no ground for allowing the plaintiff to withdraw from the suit. the suit was one for partition of property which originally belonged to one moti begam was kamini begam who was married to a man named family were impleaded as defendants to the suit, but the heirs of khadim ali, who was dead, were not impleaded. in her written statement the first defendant to the suit distinctly pleaded that as khadim ali's heirs were not parties to the.....
Judgment:

1. This is an application for revision of an order passed by the District Judge of Bareilly under Order XXIII, Rule 1(2), allowing the plaintiff to withdraw from the suit and giving her liberty to institute a fresh suit in respect of the same subject-matter. It is contended that the learned Judge had no power to act under this rule because it is only the Court of first instance that can allow the plaintiff to withdraw the suit and give him or her permission to institute a fresh suit. The applicant relies upon the decision of the Madras High Court in Choragudi Chinna Kotayyaa v. Sri Raja Varadaraja Appa Row Bahadur 25 Ind. Cas. 386 : 27 M.L.J. 244 : 1 L.W. 613 : 16 M.L.T. 186 and the decision of the Bombay High Court in Eknath v. Ranoji 10 Ind. Cas. 813 : 35 B. 261 : 13 Bom. L.R. 237. These two decision certainly support the contention advanced on behalf of the applicant; but as long ago as 1885 this Court in Ganga Ram v. Data Ram 8 A. 82 : A.W.N. (1886) 6 decided that an the Code of Civil Procedure, 1882, give a the Court of first instance, permission to withdraw his suit and give him eave to institute a fresh one. The decision in that of the Calcutta High Court under the corresponding provision in the Code of Civil Procedure, 1859. So far as we are this Court has never been challenged in new Code of Civil Procedure was passed, there was no reported decision to the effect that the Appellate Court could not give such permission. All the reported cases were in favour of the view that the appellate Court could give such permission. Indeed Courts had gone further and held that a Court executing a decree could give such permission. Order XXIII, Rule 4, distinctly lays down that nothing in the order shall apply to any proceedings in execution of a decree or order, thereby superseding the decision that a Court executing a decree could give such permission. The language of Order XXIII, Rule 1, is not exactly the same as that of Section 373 of the Code of Civil Procedure of 1882. The provisions of the enactment have been re-arranged; but we do not think that the re-arrangement indicates any intention to lay down that an Appellate Court is not to give such permission. We do not think that sufficient ground had been shown for departing from the long continued practice of this Province founded upon the decision of this Court in Ganga Ram v. Data Ram 8 A. 82 : A.W.N. (1886) 6. A good deal may, no doubt, be said against the view taken by this Court; but the ruling had stood unchallenged for many years and we shall only introduce confusion if we depart from it now. There are several reported cases in which the lower Appellate Court has given the plaintiff permission to withdraw from the suit and file a fresh suit and such orders have been attacked on various grounds, but so far as we know it had never been contended her since 1885 that an Appellate Court has not power to grant such permission; we propose to adhere to the decision of this Court. Then it is contended that even if the District Judge had jurisdiction to act under Order XXIII, Rule 1, he had exercised his jurisdiction in an unreasonable way, that he has not found that the suit would fail on account of a formal defect and that the ground given by the District Judge is really no ground for allowing the plaintiff to withdraw from the suit. The suit was one for partition of property which originally belonged to one Moti Begam was Kamini Begam who was married to a man named family were impleaded as defendants to the suit, but the heirs of Khadim Ali, who was dead, were not impleaded. In her written statement the first defendant to the suit distinctly pleaded that as Khadim Ali's heirs were not parties to the suit, the suit could not proceed. This plea appears to have escaped the attention of fixing issued, with the result that no specific issue was fixed regarding it. But at the time of argument the subordinate Judge was asked to decide behind the back of Khadim Ali's heirs that they had no right to the estate. He declined to do this, but set apart what he conceived to be Khadim Ali's share and gave the plaintiff a decree for partition of her share in the remainder of the property. The plaintiff appealed contending that her entire claim should have been decreed. The first defendant filed cross-objection, one of which was that all the necessary parties had not been impleaded and that the suit should have been dismissed. Thereupon the plaintiff presented a petition to the District Judge saying that it was by mistake that she had failed to implead the heirs of Khadim Ali, that the first defendant had pleaded that the suit could riot proceed in their absence and had reiterated this objection in her memonradum of objections in the Appellate Court and that she was afraid that her suit and appeal would be dismissed on this ground; she, therefore, prayed for permission to withdraw from the suit and bring another suit. The District Judge rightly or wrongly lie Id that as the suit was one for partition, non-joinder of necessary parties might result in its being dismissed and he pointed out that a complete partition of the property could not be effected in the absence of Khadim Ali's heirs and he came to the conclusion that a fair ground has been made out for allowing the plaintiff to withdraw from the suit. It my be that we should not have taken the same view as the District Judge took of the non-joinder of Knadim Ali's heirs. It might have been possible to hold that the suit could proceed in their absence so far as the rest of the property was concerned; but this is not an appeal and it seems to us impossible to say that the District Judge in arriving at his decision that permission to withdraw the suit should be given to the plaintiff has acted illegally or with material irregularity. We are, therefore, unable to interfere with the decision of the District Judge. We dismiss this application with costs including fees on the higher scale.


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