1. At the hearing of an appeal in the lower Appellate Court an application was made by the appellant to withdraw from the suit on the allegation that other persons not named in the petition were necessary parties. The respondent was not found upon being called and the learned Judge at once made an order allowing the appellant to withdraw the suit with liberty to bring a fresh suit.
2. It is contended before us that the order was without jurisdiction as there was no evidence upon which the Court could have acted and the learned Vakil for the opposite party has not been able to show from the record that the plaint was, in reality, defective. We think that the order was not justified upon the record and must be set aside.
3. The Rule is made absolute and the case is sent back to the lower Appellate Court so that the appeal may be heard in due course of law.
4. The petitioner is entitled to his costs in this Court. We assess the hearing fee at one gold mohur.