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Kailash Chandra Kar and anr. Vs. Haradhan Chatterjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in14Ind.Cas.190
AppellantKailash Chandra Kar and anr.
RespondentHaradhan Chatterjee
Excerpt:
civil procedure code (act v of 1908), order xxiii, rule 1 - withdrawal of unit--pleader filing petition--power in vakalatnamah--general power--'all necessary acts,' whether includes withdrawal of suit. - .....arises out of a suit that was brought by one keshab chandra kar and his widowed sister-in-law, shashi mukhi dasya. they were represented by a pleader named kuloda proshad mukerjee. on the 14th june 1911, an application was filed by this gentleman for permission to withdraw the suit with leave to sue again. the application was heard by the learned subordinate judge and was not opposed, the dispute before him being confined to the question of costs, and ultimately the petition was granted.2. the plaintiffs then obtained a rule from this court on the opposite party to show cause why this order should not be set aside, and it was argued on their behalf that the order was bad, firstly, because shashi mukhi did not join in it; secondly, because kuloda proshad mukerjee was not authorised by.....
Judgment:

1. This application arises out of a suit that was brought by one Keshab Chandra Kar and his widowed sister-in-law, Shashi Mukhi Dasya. They were represented by a Pleader named Kuloda Proshad Mukerjee. On the 14th June 1911, an application was filed by this gentleman for permission to withdraw the suit with leave to sue again. The application was heard by the learned Subordinate Judge and was not opposed, the dispute before him being confined to the question of costs, and ultimately the petition was granted.

2. The plaintiffs then obtained a rule from this Court on the opposite party to show cause why this order should not be set aside, and it was argued on their behalf that the order was bad, firstly, because Shashi Mukhi did not join in it; secondly, because Kuloda Proshad Mukerjee was not authorised by the vakalatnamah to file such a petition, and thirdly, on the ground that the reasons stated in the petition were not sufficient to justify its being granted.

3. We do not think that, in the circumstances of the present case, we ought to exercise our revisional powers in setting aside the order. The vakalatnamah authorised the Pleader 'to choose arbitrators, prefer objections to awards, file solenamah or rafanamah when necessary and do all necessary acts in connection with the suit that will be for our benefit and the said acts will be deemed as done by ourselves.' When such wide powers were specifically given to the Pleader, we are inclined to think that the words 'all necessary acts' should legitimately be construed as including an application under Order XXIII, Rule 1.

4. As to the contention that Shashi Mukhi did not consent to this application, it is stated in the affidavit that has been filed by the opposite party that, on the 13th June 1911, Babu Kuloda Proshad wanted a day's time to enable him to obtain the consent of the plaintiffs and that on the next day, the said Babu intimated to the Court that he had obtained the necessary consent. The learned Subordinate Judge describes the petition as being filed by the plaintiffs in the plural and clearly it was understood by all the parties at the time that this petition was on behalf of the plaintiffs generally. We are not prepared to assume that Shashi Mukhi's consent was not obtained within the meaning of Order XXIII, Rule 1 Sub-rule 4,

5. As to the contention that the grounds given for this application were not sufficient to justify it, we have been referred to one or two cases; but, in our opinion, they are wholly inapplicable. Those were cases in which the objections to the order were filed by the defendants and not, as in this case, by the plaintiffs. It is obvious that objections to an order of this kind, which might be perfectly reasonable in the mouth of the defendants, are wholly out of place in the mouths of the parties who obtained the order. We think, therefore, that, whether the order of the learned Subordinate Judge be strictly regular or not, it is not an order with which we should interfere in the exercise of our revisional jurisdiction.

6. The Rule will accordingly be discharged with costs 2 gold mohurs to defendant No. 2.


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