1. The petitioners in this case are the defendants in a suit brought by the opposite party as plaintiffs. The claim made by the plaintiffs was, in the alternative, for the ejectment of the defendants from, or for a declaration of the plaintiffs right to an easement in, a certain strip of land lying between other lands admittedly belonging to the plaintiffs and the defendants respectively.
2. The suit was instituted on the 8th of July 1919 and a glance at the order sheet shows that the plaintiffs were extremely dilatory in the conduct of the litigation which they had initiated. Not only that, but certain orders show that the plaintiffs made applications which there are reasons to suppose were not bona fide applications ; for instance, one of the plaintiffs applied for permission to have his evidence taken on commission. The defendants preferred an objection to such permission being given and, when the matter came before the learned Munsif for decision, the learned Munsif came to the conclusion, that the plaintiff was trying to avoid coming to Court without any good ground and that the story of his illness was false. The learned Munsif accordingly directed that that plaintiff must come and depose in Court, if he thought that his evidence was necessary.
3. The suit dragged on in this way from July 1919 to 20th August 1920, when we have a a series of orders in the order sheet. The first of these orders is to the following effect:
Defendant is present. Plaintiff is repeatedly called out; no one responds. Gosta Babu Pleader says he has no instructions to-day.' Then another Pleader of the plaintiff's appears to have been sent to fetch him ; still he did not turn up. Then comes this order : 'Plaintiff's son is present in Court but does not take any steps.' Another order follows to this effect: 'Plaintiff is again called out; but no one responds, Plaintiff's son comes and, on my asking him what will become of the case, he does not answer the question but retires.' The next order is this:--'The plaintiff's Pleaders then came and filed a petition for amendment of the plaint and for time. They want to add a claim of some other right and the petition is too late. I cannot allow it or grant time to the plaintiff. The petition is rejected.
4. Then, finally there is the order complained of to which the Rule relates: 'Plaintiff then applies to withdraw from this suit: The defendant opposes. Plaintiff is, however, allowed to withdraw from the suit with leave to sue again on the same cause of action, if not barred, but provided he deposits the costs awarded to the defendant in fifteen days from the date on which they are assessed. On default, the suit stands dismissed.'
5. I assume that the costs which the plaintiffs were directed to pay by that order were, in fact, paid, or at any rate deposited in Court, the amount, I am told, being the somewhat meager sum of Rs. 19; if the costs had not been paid or deposited, the suit would have stood dismissed and the defendants would not have had occasion to come up to this Court.
6. The Rule as issued called on the opposite party, the plaintiffs, to show cause why the order I have just read, allowing the plaintiffs to withdraw from the suit with liberty to bring a fresh suit on the same cause of action, should not be set aside and the suit dismissed, The word 'dismissed'' apparently crept in per incuriam. It must have been intended that cause should be shown why the order should not be set aside and the case sent down to be disposed of by the Court below in accordance with law.
7. Among the grounds alleged in the defendants' petition are the three following grounds: (1) 'For that on the facts and circumstances of the case, no case having been made out for the permission to withdraw the suit with liberty to bring a fresh suit, the learned Munsif in granting the said permission exercised a jurisdiction not vested in him by law.' (2) 'For that, it being abundantly clear from the plaintiffs' conduct that their sole object was to harass your petitioners, the learned Munsif acted illegally in granting the permission'; and (3) 'For that, the application for the withdrawal of the suit with liberty to bring a fresh suit not being a bona fide one or supported by any reasons, the Court below acted with material irregularity in granting the same.'
8. Now, I have heard the learned Vakils for the parties, and the learned Vakils showing cause for the plaintiffs are unable to give me any information as to the precise ground on which the plaintiffs applied for permission to withdraw their suit with liberty to bring a fresh suit. The petition submitted in the Court below was in writing to the following effect: 'Plaintiff Ramnath Pal states that in the aforesaid suit there being a formal defect in the plaint, it is not expedient for me to carry on the suit; wherefore it went on to pray, permission may be granted to withdraw this suit with liberty to bring a fresh suit.' The petition, therefore, does not state what was the formal defect in the plaint and as I have said, the learned Vakils for the plaintiffs are not in a position to inform me now what the defect was which entitled the plaintiffs to apply under the provisions of Clause (2) of Rule 1 of Order XXIII, Code of Civil Procedure. That clause runs: 'Where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.'
9. Now, clearly the allegation here was that the plaintiffs' suit was bound to fail by reason of some formal defect. There is no suggestion in the written petition of the plaintiffs that there were any other sufficient grounds for giving the indulgence which the sub-clause allows. In these circumstances, on the materials before me, I am unable to say that the learned Munsif was exercising his discretion properly and judicially as a Judge should, when he gave this permission to the plaintiffs. In my opinion it is a case in which this Court is entitled to intervene under Section 115, Code of Civil Procedure, on the ground that the lower Court acted in the exercise of its jurisdiction illegally or with material irregularity.
10. The only doubt which I have had is whether having the discretion to do so I ought to intervene, the defendants petition not stating precisely how they think they will be injured by the wrong order which has been made. In my opinion, the revisional jurisdiction ought not to be exercised in a case of this kind, unless this Court is satisfied that the petitioners have suffered or are likely to suffer some substantial injury by reason of what has been wrongly done below. The defendants, however, do state in their petition that the application for leave to withdraw with liberty was made for the purpose of harassing them. They do not explain precisely what they mean by being harassed. But it does appear from the record that daring the course of these dilatory proceedings the plaintiffs being mainly responsible for all the delay which took place, one of the original defendants died and his widow had to be substituted in his place as a defendant. The learned Vakil for the defendants suggests that the petitioners may be embarrassed and may be hampered in their defence, if a case is again instituted on the same cause of action, by the absence of, or difficulty in obtaining evidence which they can now bring forward. Moreover, a sum of Rs. 19 can hardly be regarded as sufficient to recompense the defendants for the way in which they have been needlessly dragged time after time to the Court below or even as sufficient to repay them the out of pocket expenses to which they have been put.
11. In the circumstances I have come to the conclusion that I ought to make this Rule absolute and set aside the order made by the Court below. I accordingly do so and direct that the case be remitted to the Court below to be dealt with according to law. The defendants are entitled to their costs of this Rule. I assess the hearing fee at five gold mohurs.