1. The facts of the case in respect of which this Rule has been issued are as follows: Sheikh Parabaddi, the owner of certain properly, sold it on the 9th March 1893 to the defendant No. 2, who again sold it to the defendant No. 1 on the 10th November 1909. Defendant No. 3, the son of Sheikh Parabaddi, after Parabaddi's death, sold the same property to the plaintiff on the 9th November 1909. The plaintiff sued to recover the property from the defendant No. 1 on the ground that the sale to the defendant No. 2 by Sheikh Parabaddi was a benami transaction. The suit was instituted on the 18th October 1910, and, on the 9th December 1910, the plaint was amended on the prayer of the plaintiff. The issues were settled on the 20th January 1911 and adjournments were taken for various reasons by the plaintiff up to be 31st May 1911. There were adjournments after that date and, on the 14th August 1911, the plaintiff applied for the examination of his principal witness Chaddar Sheikh on commission. The application was granted and, after that witness had been examined on the 19th August, the case came on before the Court for final disposal on the 29th August 1911. On that date, the plaintiff put in an application before the Court praying for the withdrawal of the suit with liberty to bring a fresh suit. The application purported to have, been made under Rule 1, Sub-rule (2) of Order XXIII of the Code of Civil Procedure. On that application, the Munsif passed the folio wing order: The plaintiff has prayed for withdrawal of the suit with liberty to bring a fresh suit but the defendant has objected to the 'withdrawal. The ground on which the plaintiff prays for withdrawal is, I think, an adequate one and hence the defendant's objection cannot be allowed t6 prevail-Ordered: The plaintiff is permitted to withdraw from the suit with liberty to bring a fresh suit if not time-barred. The defendant will, however, get the costs of the suit.'
2. On the 27th November 1911, the defendant No. 1, the present petitioner, applied to this Court and obtained this Rule on the opposite party, the plaintiff in the suit, to show cause why the order of the Court below purporting to have been made under Order XXIII, Rule 1, Civil Procedure Code, should not be set aside on the ground that there was no formal defect or other sufficient ground justifying the same. In the case of Robert Watson v. The Collector of Rajshahye 3 B.L.R. (P.C.) 48 : 12 W.R. (P.C.) 43 : 13 M.I.A. 160 the Privy Council pointed out that there is no general power in the country Courts in India, similar to that which the Courts of Equity in England occasionally 6xercise, of dismissing a suit with liberty to bring a fresh suit for the same matter. It is clear, therefore, that the only power under which the Munsif could pass the order complained against was that given by Order XXIII, Rule 1 Sub-rule (2) of the Code of Civil Procedure.
3. In support of the Rule, reliance is placed on the decisions of this Court in the cases of Kharda Co. Ltd. v. Durga Charan Chandra 5 Ind. Cas. 187 : 11 C.L.J. 45 and Ramdeo v. Ganesh Narain 12 C.W.N. 921 : 35 C. 624. We are of opinion, however, that, in the present case, it is not nec9ssary to rely on these rulings and that this Rule must be made absolute on the simple ground that the application on which the order of the Munsif was passed fails to disclose any formal defect in the suit or other sufficient grounds by reason of which it should be granted. In the application of the plaintiff for withdrawal, there were various reasons given, namely, that owing to a mistake several important matters were not mentioned in the plaint, that some important documents were not filed on behalf of the plaintiff, that witnesses to the principal document were not called to prove its benami character, and that important witnesses were not summoned. But the application does not state what the important matters were or how their omission would effect the result of the case. Moreover, it appears that, after the plaint was filed, it was amended on the prayer of the plaintiffs and no reason is given in the application why then, the important matters, if any, referred to in the application, were not included in the plaint. Documents appear to have been filed to the number of 55 by the plaintiff on three different occasions on which adjournments were taken and it is not stated what important documents were omitted and for what reason they were not filed. There were eight adjournments at the plaintiff's instance for the production of witnesses and it is not stated in the application why the plaintiff failed to take out processes to secure the attendance of the important witnesses. On the contrary, it appears that the principal witness, on whom the plaintiff relied in support of his case that the sale by Sheikh Parabaddi to the defendant No. 2 was a benami transaction, was examined on commission and that he gave evidence in favour of the defendant. The object of Rule 1 of Order XXIII is not, in our opinion, to enable a plaintiff, after he has failed to conduct his suit with proper care and diligence and after his witnesses have failed to support his case, to obtain an opportunity of commencing the trial afresh in order to avoid the result of his previous misconduct of the case and so to prejudice the opposite party. We think the Rule must be made absolute on the ground on which it has been granted. We accordingly make the Rule absolute, set aside the order of the Munsif and direct that he do proceed to deal with the case from the stage at which it had reached when the order was made. The petitioner is entitled to his costs which we assess at five gold mohurs.