1. We are invited in this Rule to set aside an order made under Rule 1 of Order XXIII of the Code of Civil Procedure. The petitioner was a defendant in a suit for partition of joint property, and contested the claim, on the ground, amongst others, that the plaint was insufficiently stamped. An issue was raised upon this preliminary point, and after various interlocutory orders, which need not be set out in detail for our present purpose, the Court decided on the 6th January 1916 to determine the question of Court-fees thus raised. On the day following, witnesses were examined, arguments were heard and judgment was reserved. Six days' later, we find the following entry in the order-sheet: 'Plaintiffs are permitted to withdraw and bring a new suit. In the special circumstances of the case, I make no order as to costs.' What had happend was that on the 12th January, the plaintiffs presented an application to the Subordinate Judge under Rule 1 of Order XXIII of the Code of Civil Procedure. They alleged that the suit as constituted was defective for want of parties and that full relief could not be had, unless the suit was re-constituted. No notice of this application was given to the defendants; but the Court proceeded to make the order set out above. The petitioner now prays that the order may be set aside, and his application is supported by some of the other defendants to the suit.
2. The plaintiffs contend that this Court has no jurisdiction to set aside the order of the Subordinate Judge and rely upon the dictum of Mr. Justice Coxe in the case of Bansi Singh v. Kishun Lall Thakur 26 Ind. Cas. 203 ; 41 C. 632 that a case could not well be said to have been decided within the meaning of Section 115, Civil Procedure Code, when the Court had, not adjudicated on the merits but had merely permitted the withdrawal of the plaintiff from the suit. We observe, however, that; Mr. Justice Digamber Chatterjee did not share the doubt expressed by Mr. Justice Coxe, as to the competency of this Court to interfere with an order improperly made under Order XXIII, Rule 1. We may point out that instances are by no means rare, where the. High Court has set aside orders improperly made under Order XXIII, Rule 1, in the exercise of the powers vested in it by Section 115 of the Code of Civil Procedure: Kharda Co. Ld. v. Durga Charm Chandra 5 Ind. Cas. 187 ; 11 C.L.J. 45; Mabulla Sardar v. Hemangini Debi 6 Ind. Cas. 629 ; 11 C.L.J. 512; Ram Krishna v. Ram Kirpa 14 Ind. Cas. 97 ; 9 A.L.J. 358, or under Section 25 of the Provincial Small Cause Courts Act: Umesh Chandra v. Bakhal Chandra 10 Ind. Cas. 8 ; 15 C.W.N. 666 ; 14 C.L.J. 118; Burathagunta Pentadee v. Thurlapatli Rajamma 8 Ind. Cas. 868 ; 9 M.L.T. 204 ; (1911) 1 M.W.N.' 105. We feel no doubt whatever that in any view we have ample jurisdiction under Section 107 of the Government of India 'Act, 1915, to set aside the order of the Subordinate Judge, which cannot possibly be supported, as it was passed without opportunity afforded to the defendants to contest the application for withdrawal made by the plaintiffs. It has been contended, however, on behalf of the plaintiffs that Rule 1 of Order XXIII of the Code of Civil Procedure does hot specifically require that: notice of such an application must be given to the opposite party. That is perfectly true. But as pointed out in the case of Ajant Singh v. Sundar Mall 16 Ind. Cas. 667 ; 17 C.W.N. 862, it is an elementary rule of universal application and founded upon the plainest principles of justice that a judicial order which I may possibly affect or prejudice any party cannot be made unless he has been afforded an opportunity to be heard; this is merely an instance of the application of the maxim audi alteram partem. In the present case the defendants have incurred costs to resist the claim of the plaintiffs. They have not had opportunity given to them by the Subordinate Judge to contest the truth of the allegations made by the plaintiffs in their application for withdrawal from the suit. If they had notice of the application, they might well have appeared and contended, that although the plaintiffs might be allowed to withdraw from the suit, they should not be permitted to harass the defendants with a fresh suit on the same cause of action. They might also have urged that even if an order were made in terms of the petition, the defendants should be indemnified to the extent of the costs incurred by them. We are of opinion that the Subordinate Judge should not have made an ex parte order of this description and that he has acted with material irregularity in the exercise of his jurisdiction.
3. The result is, that this Rule is made absolute, the order of the Subordinate Judge discharged and the case remitted to the Court below in order that the application of the plaintiffs may be heard in the presence of all the parties concerned. The petitioner is entitled to the costs of this Rule. We assess the hearing fee at two gold mohurs.