1. This is an application for the revision of an order of the Munsif of Bulandshar allowing the plaintiff, who is the opposite party, to withdraw his suit under Order 23, Rule 1 with liberty to institute a fresh suit. The circumstances are as follows: The plaintiff, who is the zamindar and lambardar of the village, sued for possession of a certain plot on the ground that the defendant had forcibly made some new constructions within the last few years, and the defence was that the defendant had done nothing, but repaired a house which had been in the possession of himself and his predecessors for over 50 years. Evidence was produced on both sides and at the conclusion of it, when the case was said to be ripe for arguments, the plaintiff made an application for permission to withdraw the suit with liberty to bring a fresh one on various grounds which I need not now consider, for the application was dismissed. Again on 7th April 1933 the plaintiff made another application with the same prayer and this was allowed. The one fresh ground that was alleged in the application was this. The plaintiff had discovered that when he filed his plaint he was in possession of an incorrect copy of the khasra which did not disclose that one Hayati had been in possession of the plot in suit, whereas he had discovered from another copy provided by the Court that Hayati had been recorded in 1861 as in possession of the house, and the defendants had brought evidence to prove that they were the successors in interest of Hayati. The defendants in their written statement did not mention the name of Hayati or that they claimed to be his successor-in-interest. Therefore the plaintiff claimed that as he wanted to bring evidence to prove that the defendants were not the successors of Hayati and also to implead persons whom he described as the real successors of Hayati, he ought to be allowed to withdraw his suit under Order 23, Rule 1. The Court has allowed the application for this reason and because the plaintiff would not have alleged that the house in suit was uftada if he had known of the entry in the khasra. In other words, there was a part of the defendant's case for which he was not prepared, and therefore the Court believed that he had been prejudiced.
2. No reference is made in the order of the trial Court to the provisions of Order 23, Rule 1. Permission to withdraw under that order may be given for two reasons, viz., (a) that the suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit.... It is obvious that there was no formal defect, but the Courts have had difficulty sometimes in interpreting the meaning of the expression 'other sufficient grounds.' In dealing with an application for a review their Lordships of the Privy Council in Chhajju Ram v. Neki A.I.R. 1922 P.C. 112 held that the grounds must be analogous to the grounds specified as good grounds for a review, and I think it is perfectly clear that on the merits of this particular case there were no sufficient grounds for allowing the suit to be withdrawn. The fact that the plaint contained the expression 'uftada' might possibly have told against the plaintiff in argument, but this could easily be met by pointing out the circumstances that I have described above and as regards the other grounds the plaintiff gave, if he had been prejudiced in any way by the fact that the defendants had brought evidence which had not been foreshadowed in the written statement and had in fact set up a case for which the plaintiff was not prepared, he might have applied for permission to bring fresh rebutting evidence. It has been argued by Dr. Asthana for the opposite party, however that even if the order of the Court below can be said to be an incorrect order, this Court will not interfere in revision. In the case of Jhunku Lal v. Bisheshar A.I.R. 1918 All. 418 the view taken by the Bench of this Court was that as the trial Court had jurisdiction to grant leave to the plaintiff to bring a fresh suit, the High Court would nor interfere under Section 115 even though the trial Court might have exercised, and probably did exercise,. a wrong discretion in granting the application. In that case the plaintiff had omitted formally to prove a plaint which was essential for his success, and the Bench held that it was for the Munsif to say whether or not this constitute 'other sufficient grounds' within the meaning of Rule 1(2b), Order 23. The question that they considered was whether the Munsif had made a mistake in law in deciding whether the grounds were sufficient and if so, whether they should interfere and they concluded that as Section 115, Civil P.C.
is not directed against conclusions of law or fact in which the question of jurisdiction is not involved,
they ought not to interfere. It is clear however that their meaning was not that the discretion of a trial Court in dealing with applications under Order 23 was absolutely unlimited and that orders passed on applications of this kind by the trial Court must necessarily be final. In fact, Sir Henry Richards, C.J., remarked:
I consider that a Court ought to be very slow to give liberty to bring a fresh suit after a case has been heard out on the merits.... I do not think that it ever was intended that a plaintiff should have the power of trying out his case and then at the last moment asking for leave to withdraw with permission to bring a fresh suit. The mere ordering of the plaintiff to pay the defendant's costs does not compensate the latter for being sued a second time.
3. Nor, it may be added, does it compensate the Court and the public for the waste of public time involved by such a proceeding. In a later ease Jagdamba Prasad v. Bori Lal (1930) 125 I.C. 580, a somewhat similar decision was given by a Bench of this Court where the trial Court had allowed the plaintiff's application on the ground that a vital document in the case had not been formally proved and there was every likelihood, therefore of his suit being dismissed. Here again the Bench appears to have been of opinion that the Munsif's decision was probably wrong though his finding was that
there was no doubt that a technical mistake had occurred in this case The Munsif however had jurisdiction to entertain the application presented to him under Order 23 Rule 1. There were certain grounds before him for allowing the suit to be withdrawn. Assuming that the grounds were not sufficient, the Court below rightly or wrongly exercised its discretion in favour of the plaintiff and allowed the suit to be withdrawn.
4. In both these cases however in which the High Court refused to interfere, the trial Court had applied its mind to the matter before it with due reference to the provisions of Order 23 and had given a decision because it considered that the circumstances of the case did fulfil the requirements of the rule. It is possible to conceive a case in which an application to withdraw '& suit under the rule might be made on utterly insufficient grounds, as for instance, that the counsel for the plaintiff was unable to appear on such and such a day or that the plaintiff had to attend at funeral etc., and if the trial Court were to allow an application on such grounds I have no doubt whatever that the High Court would be justified in interfering on the ground that the Court had not exercised its discretion judicially, that is to say, it had not taken into account the provisions of the rule and decided the matter to the best of its ability in accordance with those provisions. There is nothing in the present case to show that the Court considered the strict provisions of the rule at all. The plaintiff had evidently made up his mind that the course of the proceedings had not been favourable to him and had been trying to persuade the Court to allow him to withdraw the suit on inadequate grounds, and the Court finally succumbed to his importunity, but without following the procedure laid down in Order 23. I have no doubt therefore that the present case is one in which the order should be set aside. If the plaintiff has been unfairly prejudiced in the way he suggests there may be other ways in which he may be allowed to meet the defendants' evidence if the Court thinks fit. On this question however I am not able to express an opinion and wish to leave the judgment of the trial Court absolutely unfettered. It is however clear that the provisions of Order 23 cannot properly be applied to the circumstances of this case, and I therefore allow the application with costs, set aside the order of the Munsif, and direct that he proceed to decide the case in accordance with law.