1. This is a defendant's petition under Section 115 of the Civil Procedure Code against the order of Shri Ranjit Singh, Subordinate Judge 1st Class, Pathankot, dated the 22nd October, 1959, by means of which he allowed the Plaintiffs to withdraw the suit under Order 23, Rule 1, Civil Procedure Code, with liberty to institute a fresh suit in respect of the same subject-matter on payment of Rs. 10/- as costs,
2. The dispute in this case relates to 8 kanals 2 marlas of agricultural laid which the Plaintiffs claim as heirs of one Pars Ram. The defendant denied that the plaintiffs were the reversioners or heirs of Pars Ram and the plaintiffs were, therefore, put to Proof of that fact. The issues were framed on the 28th November, 1958, and parties were called upon to produce evidence on the said issues. After both the Parties had closed their evidence on the 29th July, 1959, the case was posted for arguments on the 20th August 1959. Part of the arguments were heard on that day and the case was adjourned for rest of the arguments to next day, i. e., 21st August, 1959.
On that day the plaintiffs filed an application that they had not been able to have service effected on two pandas of Mattan who had to prove the pedigree table and as a result of this they were prejudiced in the conduct of their Case. It is on these bases that they sought permission of the Court for withdrawal of the suit with leave to bring a fresh suit on the same cause of action. The petition was opposed by the defendant who controverted the various allegations made by the plaintiffs in support of permission being accorded to them.
The defendant's case was that the plaintiffs, having failed to adduce Proper evidence, were not entitled to withdraw the suit and to have another opportunity of harassing him by instituting another suit. The learned Subordinate Judge granted the permission as he felt that it would be equitable to do so.
3. It is contended in this petition by the defendant that there was no formal defect in the suit, nor was there any other sufficient reason for the permission being granted to the plaintiffs to withdraw the suit with liberty to bring another suit on the same cause of action. Mr. Puri, who appeared for the petitioner, relied on a Full Bench judgment of the Allahabad High Court, Abdul Ghafoor v. Abdul Rahman, AIR 1951 All 845, as also on a Full Bench judgment of the Bombay High Court in Ramrao Bhagwantrao v. APpanna Samage, AIR 1940 Bom 121. He further relied on Dr. Sukumar Gupta v. Chairman, District Board, Gaya, AIR 1935 Pat 251 and Veeraswami v. Lakshmudu, AIR 1951 Mad 715.
In all these cases it has been held that the Courts have jurisdiction to grant such a permission, only for reasons falling within the ambit of clause (a) of Rule 1(2) of Order 23, Civil Procedure Code, or for any grounds which, though may not be exactly ejusdem generis to the same, but still be somewhat analogous to them. With great respect I agree with the view taken in those rulings and I think this Proposition of law is now well-established. The facts of the ruling relied upon by the learned trial Judge, i. e., Gurprit Singh v. Punjab Government. AIR 1946 Lah 429, were entirely distinguishable from those of the present case.
Permission was actually granted in that case, because the Bench found that the counsel for the plaintiffs had not drafted a proper plaint and had not Claimed proper reliefs, Mr. Vikram Chand Mahajan, the learned counsel for the respondents, has relied upon five other cases -- Sadeq Reza v. Asaf Kader AIR 1931 Cal 268 (269); Koomar Poresh Narain Roy v. Ranee Surut Soonduree Debee, 16 Suth WR 100; Kali Ram v. Dharman, 147 Ind Cas 441 : (AIR 1934 All 214); Manohar Rao v. Mt. Parwati, AIR 1953 Nag 127 and Afzal Begam v. Akbari Khanum. ILR 37 All 326 : (AIR 1915 All 123). None of these cases has any real applicability to the facts of the present case.
In AIR 1931 Cal 268, a certain portion of the claim, namely, the claim for cesses, had been left out by mistake and permission was accorded to withdraw the previously instituted suit and to file a fresh suit so as to enable the plaintiff to include the left out claim also in the new suit. There is no doubt that some observations were made by the Bench in that case in column 1, page 269, of the report and they are as under:-
'There may be grounds for withdrawing a suit other than mere formal defect. For instance the evidence upon which the plaintiff relied to Prove his case is not for no fault of his available at the hearing; and the Court may, thinking that in the interests of justice he should be allowed to withdraw the present claim and renew it at some future date when he will be in a better Position to prove it, allow him to withdraw the suit with liberty to bring a fresh suit on the same cause of action.'
These observations, however, are merely in the nature of an obiter dictum and, if I may say so with great respect, they do not lay down the law correctly. In the case reported as 16 Suth WR 100 the plaintiff asked for permission to withdraw his plaint saying that it would be out of his power to adduce the evidence, which he pointed Out as existing in certain records, within the Period fixed by the Court for hearing the case, and the Court granted him permission to adopt that course. Evidently, this request was made as soon as the defendant came and put in his written statement, because the plaintiff then felt that the documents required for proving his case could not be available for a long time.
The objection that such a permission should not have been granted seems to have been taken by the defendant in the second suit instituted by the plaintiff and at a stage when that case had been to the High Court twice before and had been remanded on both those occasions. It is observed in the judgment as under:-
'We may also observe that, although this case has been twice remanded, this Point was not taken on any of the previous occasions when the case was before this Court, and it is, therefore, overruled.'
In 147 Ind Cas 441 : (AIR 1934 All 214) the case of the plaintiff, who was a minor, was being conducted by a guardian, and some formal evidence had not been produced by reason of which the case was likely to fail. The trial Court, in the peculiar circumstances of that case, granted permission to the plaintiff to withdraw the said suit with leave to bring another, and the Division Bench of the Allahabad High Court refused to interfere with the discretion of the trial Court in exercise of their revisional powers.
The case proceeds on its Peculiar facts and cannot be taken to be an authority for the proposition that in all cases, where the plaintiff has failed to produce proper evidence, the trial Court will exercise its discretion judicially in granting permission to the plaintiff to withdraw the first suit and to bring a fresh suit. If this case is deemed to lay down any such proposition, I would, with great respect, differ from the same, as in my judgment a plaintiff cannot be allowed to withdraw the suit when he has failed to adduce properin the first suit and when he knows that his suitis bound to be dismissed for want of proof.
The facts in AIR 1953 Nag 127 were that the plaintiff brought a suit on the allegation that she had revoked a deed of gift executed by her in favour of the defendant. A certified copy of the deed of gift had been brought on record though not formally proved because of the defect in not calling upon the defendant to produce the origin in Court. The plaintiff had admitted in her evidence that she had executed the deed, but the suit was dismissed because of a formal defect of a notice having not been given to the defendant.
In appeal a Division Bench of the Nagpur High Court granted permission to the plaintiff to withdraw that suit with leave to bring a fresh suit, because the Bench, came to the conclusion that the defect in conduct of the suit was only of a formal nature. In ILR 37 All 326 : (AIR 1915 All 123) the only point which fell for decision was whether an appellate Court had powers to grant permission to the plaintiff to withdraw his suit at the stage of appeal. None of these cases has any bearing on the facts of the present case.
In my judgment this Principle of law is well established that permission of this type can be granted to the plaintiff only on the ground that a suit must fail by reason of any formal defect or on a ground which, though may not be strictly ejusdem generis must yet be somewhat analogous to it.
4. It is then contended by the learned counsel for the respondents that the trial Court has exercised a discretion vested in it and that I should not interfere with the same in my revisional jurisdiction. The Full Benches of Bombay and Allahabad High Courts referred to above have clearly laid down that the trial Court, in granting such a permission on grounds not warranted by law, acts beyond its jurisdiction. I am in respectful agreement with this view and I feel that the trial Court has in this case acted beyond its jurisdiction or, at any rate, illegally or with material irregularity in the exercise of its jurisdiction.
5. For the reasons given above this petitionis allowed and the order of the trial Judge isquashed. The case will now go back to him forproceeding according to law. The respondents willpay the petitioner's costs in this Court.