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Ram Badan Upadhiya and anr. Vs. Sankatha Misra and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in92Ind.Cas.1030
AppellantRam Badan Upadhiya and anr.
RespondentSankatha Misra and ors.
Cases ReferredGanga Prasad v. Kiskni
Excerpt:
civil procedure, code (act v of 1908), section 115, order xxiii, rule 1--application for withdrawal of appeal--order passed for withdrawal of suit--revision. - .....of an order passed under order xxiii, rule 1, c.p.c., giving the plaintiff permission to file a fresh suit. the order is an extraordinary one. it was passed by the appellate court and runs thus:this appeal is withdrawn; hence it is dismissed....the appellant may bring a fresh suit if necessary.' the effect of the dismissal of the appeal is to leave the judgment of the original court standing, and though the learned subordinate judge says that the appellant may bring a fresh suit he has passed no order for withdrawing the original suit. no reasons are given for his order. it is contended that these reasons are supplied by an application presented on the same date. the application is not of a nature to support any order allowing the suit to be withdrawn with permission to bring a fresh.....
Judgment:

Daniels, J.

1. This is an application in revision of an order passed under Order XXIII, Rule 1, C.P.C., giving the plaintiff permission to file a fresh suit. The order is an extraordinary one. It was passed by the Appellate Court and runs thus:

This appeal is withdrawn; hence it is dismissed....The appellant may bring a fresh suit if necessary.' The effect of the dismissal of the appeal is to leave the judgment of the original Court standing, and though the learned Subordinate Judge says that the appellant may bring a fresh suit he has passed no order for withdrawing the original suit. No reasons are given for his order. It is contended that these reasons are supplied by an application presented on the same date. The application is not of a nature to support any order allowing the suit to be withdrawn with permission to bring a fresh one. It is absolutely vague. It gives no particulars whatever. It states that some matters unspecified are not mentioned in the plaint and that some other matters are hot fully mentioned, and that there is some legal flaw the nature of which is not even indicated. A preliminary objection is raised that no revision lies, but it has been held in numerous cases the most recent case being Ganga Prasad v. Kiskni 87 Ind. Cas. : AIR1925All466 that where an order of this kind is passed without any reasons and without the Court applying its mind in the least to the question whether there were sufficient grounds to allow a withdrawal with permission to file a fresh suit a revision application can be entertained. I find further that the application on which the order was passed was not an application to withdraw the appeal but an application to withdraw the suit. The learned Counsel for the applicant contends that as he only complains about the portion of the order which gave permission to file a fresh suit only that portion of the order can be set aside. It appears to me, however, that I' must look at the order as a whole. The Court below professing to allow the application passed an order which was not at all warranted by the terms of the application. The appellant had in fact never applied to withdraw his appeal. I must, therefore, set aside the whole of the order passed by the Court below and direct that Court to re-hear the appeal on the merits.

2. The applicant will have his costs of this revision in any event.


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