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Gopal Chandra Bandyopadhya Vs. Benode Behary Roy Mandal and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.82
AppellantGopal Chandra Bandyopadhya
RespondentBenode Behary Roy Mandal and anr.
Excerpt:
civil procedure code (act 7 of 1908), order xxiii, rule 1 - leave to withdraw part of claim. - .....of causes of action and parties if the claim with regard to plot no. 19 in schedule 'kha' had been prosecutcd. we understand that that was the main ground upon which the application for have to withdraw with liberty to bring a fresh suit was made on behalf of the plaintiff. if, however, the claim would not have been bad for misjoinder of causes of action and partier, as the learned subordinate judge says, we do not see why the plaintiff was allowed leave to withdraw. no ground appears to have been stated by the judge for allowing the plaintiff the leave.3. it is stated before us on behalf of the petitioner that it was after the whole evidence had been gone into, that the plaintiff applied for leave to withdraw with regard to plot no. 19.4. so far as we can see, no ground has.....
Judgment:

1. No one appears to show cause in this Rule.

2. It appears that the plaintiff applied for leave to withdraw from a part of his claim, namely, with respect to plot No. 19 of Schedule 'Kha' with liberty to bring a fresh suit. This was on the 23rd July and the Court ordered that the petition be considered in the judgment. In the judgment the learned Subordinate Judge considered this question in connection with Issue No. 5 and he same to the conclusion that there would have been no misjoinder of causes of action and parties if the claim with regard to plot No. 19 in Schedule 'Kha' had been prosecutcd. We understand that that was the main ground upon which the application for have to withdraw with liberty to bring a fresh suit was made on behalf of the plaintiff. If, however, the claim would not have been bad for misjoinder of causes of action and partier, as the learned Subordinate Judge says, we do not see why the plaintiff was allowed leave to withdraw. No ground appears to have been stated by the Judge for allowing the plaintiff the leave.

3. It is stated before us on behalf of the petitioner that it was after the whole evidence had been gone into, that the plaintiff applied for leave to withdraw with regard to plot No. 19.

4. So far as we can see, no ground has been assigned for allowing the plaintiff to withdraw from that portion of the claim. Under the circumstances, we think that the order allowing leave to the plaintiff to withdraw from the claim with respect to plot No. 19 of Schedule 'Kha' should be set aside, and we direct the Court below to decide the claim with respect to that plot in accordance with law.


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