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Kamini Kumar Roy and anr. Vs. Rajendra Nath Roy and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal233,90Ind.Cas.432
AppellantKamini Kumar Roy and anr.
RespondentRajendra Nath Roy and anr.
Cases ReferredMahant Biharidasji v. Parshottamdas Ramdas
Excerpt:
civil procedure code (act v of 1908), order xxiii, r. - withdrawal of suit, application for--refusal to grant permission to bring fresh suit--procedure. - .....second munsif of chikandi applied for permission to withdraw from the suit with liberty to bring a fresh suit. the munsif allowed them to withdraw from the suit without permission to bring a fresh suit and directed the defendants to get their costs from the plaintiff. this order was passed in connection with two suits, but in this rule we are only concerned with suit no. 69 of 1924.2. that the munsif's order was wrong is clear from the decision of the bombay high court in mahant biharidasji v. parshottamdas ramdas 32 b. 345 : 10 bom. l.r. 293, as there pointed out, where the plaintiff does not desire to withdraw from the suit unless with liberty to bring a fresh suit, and the court considers that such liberty should not be granted the proper course is simply to dismiss the application......
Judgment:

1. The plaintiffs-petitioners during the hearing of their Suit No. 69 of 1924 in the Court of the Second Munsif of Chikandi applied for permission to withdraw from the suit with liberty to bring a fresh suit. The Munsif allowed them to withdraw from the suit without permission to bring a fresh suit and directed the defendants to get their costs from the plaintiff. This order was passed in connection with two suits, but in this Rule we are only concerned with Suit No. 69 of 1924.

2. That the Munsif's order was wrong is clear from the decision of the Bombay High Court in Mahant Biharidasji v. Parshottamdas Ramdas 32 B. 345 : 10 Bom. L.R. 293, As there pointed out, where the plaintiff does not desire to withdraw from the suit unless with liberty to bring a fresh suit, and the Court considers that such liberty should not be granted the proper course is simply to dismiss the application. On behalf of the opposite party in this Rule the same argument was urged as had been urged at the hearing of the case cited.

3. It was contended that the permission having been refused without any objection on the part of the plaintiff he must be deemed to have withdrawn from the suit. It was not necessary for him to expressly take such objection before his application was refused. The Rule is accordingly made absolute with costs and the order passed by the Munsif will be varied by substituting therefor an order in these terms. The application for permission to withdraw from the suit with liberty to bring a fresh suit for the subject-matter of the suit is dismissed with costs. The result will be that the case must be restored to the file.

4. I assess the hearing-fee at two gold mohurs.


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