I.D. Dua, J.
1. Ganesh Das and Bahadur Singh sons of Shri Paira Ram instituted a suit for a declaration to the effect that the land mentioned in the plaint is not liable to be alienated by defendant No. 1, Shri Paira Ram and that he be restrained from transferring the same in favour of defendant No. 2 or 3. Defendant No. 2, Sohan Lal, is the son of defendant No. 3, Smt. Prem Lata, and defendant No. 3 is described to be residing at the house of Piara Ram, defendant No. 1. This suit was instituted on 16-2-1963 and issues were framed on 29-5-1963, when 19-9-1963 was fixed for the plaintiffs' evidence. 19th of August 1963 was the intermediary date for checking up the service of witnesses. On that date, it was discovered that no witness had been summoned by the plaintiffs. On 19-9-1963, the plaintiffs did not produce any witness, Needless to repeat, that they had also failed to summon any witness. 16th of December 1963 was the next date and the plaintiffs were guilty of similar default on that date too. The plaintiffs on that date made a statement that they wanted to withdraw the suit with permission to file a fresh suit on the same cause of action. The learned Subordinate Judge, Shri V.K. Kaushal, after recording the statement, apparently adjourned the case to 18-12-1963, when he passed the impugned order, which I should like to reproduce in extenso :--
'As per statement given by the plaintiff, this suit is dismissed as withdrawn with permission to file a new suit on the same cause of action, subject to the payment of Rs. 20 as costs, before filing the fresh suit. No order as to costs in this suit. File be consigned.'
2. On revision before me, the learned counsel for the petitioners, Shri Ram Rang has very strongly argued that the learned Subordinate Judge has committed a material irregularity in the exercise of jurisdiction in passing the impugned order. He has in this connection submitted that such withdrawal can only be permitted under Order 23, Rule 1(2), Code of Civil Procedure, according to which, where the Court is satisfied :--
(a) that a 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 for the subject-matter of a suit or part of a claim,
it may on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim, with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. The counsel has in support of his submission drawn my attention to Raghbir v. Roshan Lal, 1964-66 Pun LR 404, Bhag Mal v. Master Khem Chand, AIR 1961 Punj 421, Ran Singh v. Mukhtiara Singh, AIR 1953 Pepsu 105 and Fulchand v. Rameshwar Lal, AIR 1963 Pat 63.
3. The respondents in pursuance of substituted service under Order 5, Rule 20, C. P. Code, have not cared to appear and oppose the petition.
4. This petition has merit and must, in my opinion, succeed. It is obvious that the plaintiffs did not allege that their suit was bound to fail by reason of some formal defect, and indeed the learned Subordinate Judge has also not so found. As a matter of fact, on the present record, it was not possible for the Court to record such a finding. I am also unable to discover any other sufficient ground for allowing the plaintiffs to institute a fresh suit on the same cause of action. In fairness, the learned Subordinate Judge also has not recorded such a finding, as indeed he could not do so on the existing record.
5. The learned Subordinate Judge, in my opinion, appears to have been labouring under an impression that it is open to the Courts in India to allow a suit to be withdrawn with liberty of suing again without assigning any reason for adopting such a course, and outside the provisions of Order 23, Rule 1(2). This impression is, if I may say so, wholly misconceived. I may at this stage with advantage reproduce the following observations from a judgment of the Privy Council in Robert Watson and Co. v. Collector of Rajshaye, (1870) 13 Moo Ind App 160 (PC) :--
'There is a proceeding in those Courts called a non-suit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of misjoinder either of parties or of the matters in contest in the suit; to cases in which a material document has been rejected because it has not borne the proper stamp, and to cases in which there has been an erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form, but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them.'
From this passage, it would be obvious that failure on the part of the plaintiff to prove his case or to summon his witnesses and to produce them is no ground for allowing him to withdraw his suit with the liberty of suing again for the same subject-matter. The Courts as well as the litigants must, it may be pointed out, bear in mind that the object of Order 23, Rule 1, is not to enable a plaintiff, who has been grossly negligent in summoning or producing his witnesses and has not conducted his suit with due care and diligence, to obtain a fresh opportunity to again start with a case de novo in order to avoid the result of his previous negligent conduct so as to harass and prejudice the opposite party. The defect which justifies exercise of the Court's discretion, in considering the question of making an order within Order 23, Rule 1 (2) of the Code, must be such as has the effect of shutting out a fair trial on the merits which arises out of some error made in good faith by the plaintiff which can only be set right by fresh trial de novo. If the defect is due to the plaintiff's own fault, as is the case before us, the Court would be acting illegally and with material irregularity in the exercise of its jurisdiction in permitting the plaintiff to withdraw his suit and institute a fresh suit on the same cause of action. In the present case, it is not necessary to express any opinion whether the expression 'other sufficient cause', as used in the sub-rule mentioned above, is to be construed ejusdem generis with formal defect or as being analogous to it, or should be given a somewhat wider meaning because in the case in hand, no ground has been mentioned by the learned Subordinate Judge in support of the order.
6. The question, however, arises what order should now be passed. Should the case be sent back, for the learned Subordinate Judge to consider the circumstances of the case and then pass final order, or should the order of withdrawal stand, but the permission to institute a fresh suit quashed? After considering the circumstances of the case and the fact that the plaintiffs have not cared to appear in this Court in my opinion, the withdrawal of the suit should stand but the permission granted by the Court below to institute a fresh suit quashed, which I hereby order. Since there has been no representation on behalf of the respondents, there would be no order as to costs in this Court, but in the Court below, the plaintiff's must pay the defendants costs.