1. This rule is heard ex parte. In this matter the plaintiff sued to recover a certain share of a tank on declaration of his title thereto. The defendant appeared, the case was adjourned until it was over a year old and on 15th June last came on for hearing. The plaintiff was examined and the defendant was examined in part. A verbal application followed by a written application was then made on behalf of the plaintiff as there were certain formal defects - leave was prayed for to withdraw from the suit with liberty to bring a fresh suit. This application was strenuously opposed and the learned Munsif rejected it. But instead of then finishing the case and deciding it on the evidence on the record and on such further evidence in the case as might be adduced he made declaration that the plaintiff is permitted to withdraw from the suit without liberty to bring a fresh suit with costs to be paid to the contesting defendant and subsequently made a memo, of such costs. Now as was pointed out in the case of Mahant Biharidasji v. Parshotamdas Ramdas  32 Bom. 345, the proper course is if the Munsif did not consider that the application for withdrawal with liberty to bring a fresh suit should be granted, to dismiss the application and then go on with the case. This ruling has been followed also in the case of Kamini Kumar Roy v. Rajendra Nath Roy A.I.R. 1926 Cal. 233, and is also in accordance with the decision of a Division Bench of this Court in the case of Suradhani Debya v. Chandra Nath Pramanik  20 C.W.N. 1011. I must hold, therefore, that the order of the Munsif does not amount to a dismissal of the suit or to the suit being withdrawn unconditionally. I, therefore, set aside what appears to be an order disposing of the suit in this way and order that the case do go back to the learned Munsif to proceed to dispose of the suit on the assumption that the application to withdraw with liberty to bring a fresh suit has been refused. It follows too that the present order for costs in favour of the defendants must also be set aside as it will be for the Munsif now to dispose of the suit as a contested suit in the ordinary way.
2. To this extent the Rule is made absolute. No one appearing on the opposite side, I make no order as to costs in the Court.