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(Subadar) Naimathulla Khan Sahib and ors. Vs. Abdul Razack Sahib - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1925Mad1268
Appellant(Subadar) Naimathulla Khan Sahib and ors.
RespondentAbdul Razack Sahib
Cases ReferredBurathgunta Pentadee v. Kurla Patti Rajamma
Excerpt:
- .....munsif was right in giving the plaintiff permission to withdraw the suit and to institute a fresh suit. the order of the district munsif which is dated 9th october 1922 states:the affidavit discloses grounds for the grant of the prayer, but as the petition is filed at the last stage the plaintiff must pay the defendant's costs. i allow this petition on condition that, in case the petitioner institutes a fresh suit, he will do so only after paying the defendant's costs. in case the suit is not filed, no costs need be paid.2. the order under which the withdrawal is granted is order 23, rule 1, schedule 1, civil procedure code, which states:(1) at any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of.....
Judgment:

Beasley, J.

1. The point in this case is whether the District Munsif was right in giving the plaintiff permission to withdraw the suit and to institute a fresh suit. The order of the District Munsif which is dated 9th October 1922 states:

The affidavit discloses grounds for the grant of the prayer, but as the petition is filed at the last stage the plaintiff must pay the defendant's costs. I allow this petition on condition that, in case the petitioner institutes a fresh suit, he will do so only after paying the defendant's costs. In case the suit is not filed, no costs need be paid.

2. The order under which the withdrawal is granted is Order 23, Rule 1, Schedule 1, Civil Procedure Code, which states:

(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.

(2) 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 suit of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.

3. The history of this suit is that the plaint was presented on 9th February 1921. The date fixed for the first hearing was 11th March 1921. The plaintiff's witnesses 1 to 5 were examined on 6th October 1921. There were numerous adjournments according to the entry in the B diary. There was an application made to amend the plaint and the plaint was ordered to be amended by the 6th February 1922. Subsequent to this there were numerous adjournments and eventually it culminated in a petition being presented on the 9th October 1922 for permission to withdraw the case and to institute a fresh suit. The petition was presented at the last moment. I have read through the affidavit and it appears to me from paragraph 6 that the real reason for making the application was that the plaintiff's witnesses were not present and that the plaintiff had found subsequently that there are records and witnesses to prove his case. It is quite clear that these witnesses were not before the Court and it was not possible to go on with the case without them. The last few words in paragraph 6 are:

Further certain statements in the plaint have to be amended.

4. In my view, the real reason for asking for permission to withdraw the case was because the plaintiff was not prepared to go on with the evidence which he had in Court. The allegation, 'Further certain statements in the plaint have to be amended,' is so vague that it deserves no notice whatever. The plaint had already once been amended. The question now is whether or not the reasons set forth in the affidavit were other sufficient grounds for allowing the plaintiff to institute a fresh suit. It is quite clear to me that the words of Order 23, Clause 2(b) 'other sufficient grounds for allowing the plaintiff to institute a fresh suit' must be taken to mean ejusdem generis with the words in Clause 2(a); that is to say, 'some formal defect.' This point has been considered in Burathgunta Pentadee v. Kurla Patti Rajamma [1911] 1 M.W.N. 105. There the Judge in giving Judgment says,

The use of the word 'other' suggests that the sufficient grounds must be ejusdem generis with the formal defects under Sub-clause (a).

5. In this case, as I have already said, the ground for asking for the withdrawal appears to me to be quite different from any 'formal defect.' The plaintiff was not ready to go on with his case. In my view, the District Munsif was quite wrong in giving permission to the plaintiff to withdraw the suit and to institute a fresh suit. Under the circumstances I think the proper thing to do is to set aside the order of the District Munsif allowing the plaintiff to withdraw the suit with liberty to file a fresh suit and direct him to replace the case on his file and dispose of it according to law; that is to say, I do not think that the plaintiff should be shut out from calling the witnesses and other evidence indicated in the affidavit and whom he was not ready to call; but I certainly think that he should not be allowed to amend his plaint. The plaintiff will only be allowed to go on with the case on condition that he pays the costs incurred by the defendants in the District Munsif's Court and the costs of this bearing.


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