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Basudeb Narayan Sinha Vs. Srimati Kadambini Dassi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.77
AppellantBasudeb Narayan Sinha
RespondentSrimati Kadambini Dassi
Excerpt:
civil procedure code (act v of 1903), order xxiii, rule 1, section 115 - leave to withdraw with liberty to bring fresh suit--insufficient grounds--revision--high court, interference by. - .....was raised as to whether the plaintiff could be successful and the plaintiff applied to the learned judge for permission to withdraw from . the suit with liberty to bring another suit on the same cause of action which the learned judge granted. the learned judge under the terms of the rule clearly had power to grant the plaintiff permission to withdraw from the suit with liberty to bring a fresh suit at any stage of the proceeding. the mere fact that the learned judge granted that leave on a ground that may or may not appear to us to be sufficient is no ground for interfering under the terms of section 115, code of civil procedure. this is not a case of want of jurisdiction nor did the learned judge act with material irregularity. the rule is discharged with costs--one gold.....
Judgment:

Fletcher, J.

1. This is a Rule calling on the opposite party to show cause why the order complained of should not be set aside. The plaintiff opposite party brought a suit to enforce a mortgage. A question was raised as to whether the plaintiff could be successful and the plaintiff applied to the learned Judge for permission to withdraw from . the suit with liberty to bring another suit on the same cause of action which the learned Judge granted. The learned Judge under the terms of the rule clearly had power to grant the plaintiff permission to withdraw from the suit with liberty to bring a fresh suit at any stage of the proceeding. The mere fact that the learned Judge granted that leave on a ground that may or may not appear to us to be sufficient is no ground for interfering under the terms of Section 115, Code of Civil Procedure. This is not a case of want of jurisdiction nor did the learned Judge act with material irregularity. The Rule is discharged with costs--one gold mohur.

Smither, J.

2. I agree.


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