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Keelangoti Narayana Tantri Vs. Nagappa and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in44Ind.Cas.889
AppellantKeelangoti Narayana Tantri
RespondentNagappa and ors.
Cases ReferredGolam Mahomed v. Shibendro Pada Banerjee
Excerpt:
civil procedure code (act v of 1908), order xxiii, rule 1 - withdrawal of suit with liberty to file fresh suit, petition for--order, construction of--leave granted by implication. - 1. in the original vernacular petition it is quite clear that what the petitioner asked for was the liberty to withdraw with permission to bring a fresh suit.2. in these circumstances, following golam mahomed v. shibendro pada banerjee 12 c.w.n. 893 we think that the order 'plaintiff is permitted to withdraw from the suit' must be read with the petition and construed as granting it. on the other construction the order was most misleading to the petitioner and not an order contemplated by the code.3. we allow the letters patent appeal with costs, set aside the decree of the district judge and remand the appeal to the district judge for disposal according to law. other costs will abide the result.
Judgment:

1. In the original vernacular petition it is quite clear that what the petitioner asked for was the liberty to withdraw with permission to bring a fresh suit.

2. In these circumstances, following Golam Mahomed v. Shibendro Pada Banerjee 12 C.W.N. 893 we think that the order 'plaintiff is permitted to withdraw from the suit' must be read with the petition and construed as granting it. On the other construction the order was most misleading to the petitioner and not an order contemplated by the Code.

3. We allow the Letters Patent Appeal with costs, set aside the decree of the District Judge and remand the appeal to the District Judge for disposal according to law. Other costs will abide the result.


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