Ram Chandra Das and ors. Vs. Hachunia Fakir Alias Sachunia Fakir and ors. - Court Judgment
|Judge||D. Chatterjee and ;Newbould, JJ.|
|Appellant||Ram Chandra Das and ors.|
|Respondent||Hachunia Fakir Alias Sachunia Fakir and ors.|
|Cases Referred||Hira Lal Mitra v. Uday Chandra Dey|
civil procedure code (act v of 1908), section 115, order xxiii, rule 1--withdrawal of suit, order for, in absence of formal defect-jurisdiction--high court--revision. - .....the learned munsif did not grant any costs to the defendants.2. the order of the learned munsif, therefore, allowing the plaintiff to withdraw is wrong. we set it aside and direct that the case, as against defendants nos. 4 to 6, be tried in accordance with law.3. the rule is made absolute with costs, one gold.....
1. The order made in this case does not seem to be one which is authorised by the provisions of Order XXIII, Rule 1. There was no formal defect in the case and the learned Munsif ought to have respected the rule of this Court quoted by the petitioners in Hira Lal Mitra v. Uday Chandra Dey 14 Ind. Cas. 33 : 16 C.W.N. 1027 : 16 C.L.J. 103. There is no general jurisdiction given by the Civil Procedure Code for allowing a party to withdraw except under the provisions of the said Rule; nor do we find any reason why the learned Munsif did not grant any costs to the defendants.
2. The order of the learned Munsif, therefore, allowing the plaintiff to withdraw is wrong. We set it aside and direct that the case, as against defendants Nos. 4 to 6, be tried in accordance with law.
3. The Rule is made absolute with costs, one gold mohur.