1. This rule has been issued on the opposite party to show cause why an order of the Additional Subordinate Judge, Howrah, permitting the plaintiff opposite party to withdraw a suit with liberty to bring a fresh suit, should not be set aside. The learned Additional Subordinate Judge purports to have passed the order under Order 23, Rule 1, Clause 2(a), Civil P. C, on the ground that the suit must fail by reason of formal defects. The formal defects he refers to are that some necessary parties have not been impleaded and that some de-buttar properties disposed of by defendant 3 have not been included in the claim. The necessary parties referred to are those to whom some of the debuttar properties were transferred. The suit was for declaration that certain properties were debuttar properties, that the plaintiff was the sole shebait and that the defendants having acted in contravention of the term of the shebaitnama for an injunction restraining the defendants from obstructing the plaintiff in performing the seba and making repairs to the temple and also for recovery of possession of the debuttar properties by the plaintiff as shebait and for accounts. The suit was instituted in 1924 and this application for withdrawal was made in 1932. In the meantime the suit had been compromised between the plaintiff and the defendants, but on a reference to this Court the compromise was set aside, as against the petitioner, defendant 3, and it was ordered that the suit as against him should proceed.
2. The defects referred to, namely that certain necessary parties were not impleaded and certain debuttar properties were not included in the claim, do not appear to be formal defects. Moreover it is not clear that the transferees of some of the debuttar properties are necessary parties to the present suit. As regards the transfer of these properties the plaintiff was all along aware of this transfer as in para. 6 of the plaint he said that almost all the debuttar properties had been illegally transferred. The only other cause given for the withdrawal of the suit was that there were altered circumstances which affected the suit by reason of the compromise with defendants 1 and 2 making it necessary to bring fresh suit ; but it is not clear that the relationship between the plaintiff and defendant 3 is in any way affected by the compromise. There seems therefore to be no justification for the order passed by the learned Subordinate Judge under Order 23, Rule (1) as there is no reason why the suit should fail by reason of any formal defects, nor is there any other sufficient reason for fresh suit.
3. It is contended on behalf of the opposite party that the present application to this Court is not bona fide, inasmuch as there has been the delay of merely three months in making it and that the application has been made on account of a quarrel in connexion with the repair of the temple and owing to the demolition of a portion of it made by the plaintiff. The application is however within the time allowed by law. In the circumstances we think that we would be justified in interfering Under Section 115, Civil P.C, inasmuch as there has been a material irregularity in the exercise of his jurisdiction by the Subordinate Judge.
4. The result is that this rule is made absolute, the order of the Subordinate Judge is set aside, the plaintiff's application for withdrawal of the suit is rejected and the suit will proceed. The petitioner is entitled to the costs of this rule, hearing-fee being assessed at one gold mohur.
5. I agree.