1. This is an application against an order allowing a suit to be withdrawn with liberty to bring a fresh suit. It must be conceded that the order against which complaint is made is hardly defensible. The suit was fought out to the bitter end, arguments of both sides had been heard, and a few days previously the plaintiffs had been given an opportunity of amending their plaint. In their petition for leave to withdraw the suit they said that many legal defects in the preparation of the plaint had occurred and certain documents had not been filed;. They did not, however, specify what defects there were and what documents had not been filed. The learned Subordinate Judge only mentioned one defect, which does not appear to me to be a formal defect, at all, and, moreover, he did not find that the suit-must fail by reason of it.
2. Finally, the granting of the application was not made conditional on the payment of the defendant's costs. This omission, in my opinion, was a grave injustice. But however irregular this order may be, it appears to me very doubtful whether we have any right to interfere with it. Under Section 115 of the Civil Procedure Code we may call for the record of any case which has been decided by a Subordinate Court and pass such order as we may think fit. It does not appear to me that this can be regarded as a case which has been decided. To allow a suit to be withdrawn with liberty to bring a fresh suit is not deciding a case. No doubt, cases of this kind have been dealt with in revision under the Civil Procedure Code, but in none of the cases which have been shown to us was the question whether this Court has power to deal with such cases under Section 115 fully considered. In Kharda Co., Ltd., v. Durga Charan Chandra (1909)11C.L.J. 45 it was remarked that it was competent to 'this Court to interfere by way of revision. No Reasons, however, were given and the proposition, was rested on the authority of the cases of Dick v. Dick (1893) I.L.R. 15 All. 169 and Tirupati v. Muttu (1888) I.L.R. 11Mad. 322. But in neither of these cases, in my opinion, was this particular question really considered and decided. Also the case of Kharda Co., Ltd. v. Durga Charan Chandra (1909)11 C.L.J. 45 was decided under Section 622 of the Civil Procedure Code of 1882, the terms of which are not identical with the terms of Section 115 of the present Code. Under the terms of the present Code, the powers of this Court are, in my opinion, confined more expressly to cases which have been decided by the subordinate Courts.
3. It has been argued that we have power to interfere under the Charter. The Charter gives us the power of general superintendence over the subordinate Courts. But certainly I doubt whether that authorizes us to set aside a specific order of this nature, though I am aware that jurisdiction, at least as wide as this, has often been exercised by this Court.
4. Another point against the petition is that it was not presented until the 30th June 1913. The order complained of had been passed on the 1st April and we are informed, and it is not disputed, that at that time a fresh suit bad been instituted against the present petitioners.
5. Having regard to these circumstances and also to the fact that I am very doubtful whether we have power to deal with this order, I am not prepared to grant this application. The Rule is accordingly discharged.
D. Chatterjee, J.
6. I agree in discharging the Rule on the ground that in this case there are not sufficient reasons for the exercise of our extraordinary jurisdiction. This was a case for setting aside a sale on the ground of fraud by an agent of the co-sharers and I think that these are cases in which every reasonable opportunity should be given to the plaintiff to prove the fraud that he alleges. Besides, in this case the present application was made after the suit had been actually filed and summons served on the defendant. I also agree that in this case there is no decision in the Court below and that the case does not come within Section 115 of the Civil Procedure Code.