1. This is an application in revision against an order passed by an Appellate Court allowing the plaintiff at the Stage of appeal to withdraw his suit under Order XXIII, Rule 1, C. P. C. with liberty to bring a fresh suit. It has been held in a number of cases that such an order is open tore vision where the Court allowing the withdrawal has not exercised a judicial discretion in the matter. This find to be the case here. The suit was a perfectly simple one. The property in dispute belonged toy Musammat Dallu, widow of Mangli. It was alleged that Musammat Dallu had sold it without legal necessity. The plaintiff claimed, to be-the next, reversioner, as being the son of Mangli's brother Beni Ram. The learned Munsif found, that the plaintiff was not the son of Beni and, therefore, had no title. He accordingly dismissed the suit. The plaintiff in the application for withdrawal which he presented to the Appellate Court did not specify any technical defects-by reason of which he claimed to take advantage of Order XXIII, Rule 1. All he said on the point is that there were several legal defects about which the Munsif had written in his judgment. No such defects are referred to by the Munsif. He further added that he was in fact the son of Beni, a point which had been found against him, and that he was in search of documentary evidence to prove his case. The judgment of the learned Officiating District Judge is most unsatisfactory and it fails to show that the requirements of Order XXIII, Rule 1 were fulfilled. He criticises the learned Munsif for discussing the case from all possible points and goes on to say that it was a simple case in which the main point was whether the sale-deed executed by Musammat Dallu was or was not justified by legal necessity. This is manifestly wrong. It was for the plaintiff first to prove his title as reversioner. If he failed in this, the question of legal necessity did not arise at all. The reason given for allowing withdrawal is unintelligible. The learned Judge says that the plaintiff 'did not claim in the alternative and which alternative claim he had no chance to prove.' What this claim was the learned Judge did not say. The case was rightly tried by the Munsif on the case in which the plaintiff came into Court. I set aside the order of the .Court below and direct the learned Judge to restore the appeal to the file and dispose of it on the merits. The applicant will get his costs of this application. Other costs will abide the result.
2. As the learned Judge's order has been set aside any suit which the plaintiff may have filed in the meantime in pursuance of that order will not be maintainable.