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Suradhani Debya Vs. Chandra Nath Pramanik and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in37Ind.Cas.131
AppellantSuradhani Debya
RespondentChandra Nath Pramanik and ors.
Cases ReferredMahant Bihari Dasji v. Parshotamdas
Excerpt:
civil procedure code (act v of 1908), section 115, order xxiii, rule 1 (2) - court, whether can order withdrawal of suit without permission, to institute fresh suit--revision. - .....rejected. then the plaintiff applied for leave to with draw from the suit with liberty to bring a fresh suit on the same cause of action. the learned subordinate judge held that there were no sufficient grounds for allowing, the plaintiff to withdraw from the suit with liberty to bring a fresh suit, and he made an order allowing the application for withdrawal without permission to institute a fresh suit. it appears that subsequently several applications were made by the plaintiff for setting aside that order, the last application being dated the 10th of august 1914 by which he treated the suit as not disposed of by the previous order and prayed the court to proceed with the suit. that was rejected. now the court having been of opinion that leave should not be granted to the plaintiff to.....
Judgment:

1. The petitioner was the plaintiff in a suit in the Court of the Subordinate Judge of Rajshahye. It appears that, on the date finally fixed for the hearing, the plaintiff applied for postponement on several grounds. That application was rejected. Then the plaintiff applied for leave to with draw from the suit with liberty to bring a fresh suit on the same cause of action. The learned Subordinate Judge held that there were no sufficient grounds for allowing, the plaintiff to withdraw from the suit with liberty to bring a fresh suit, and he made an order allowing the application for withdrawal without permission to institute a fresh suit. It appears that subsequently several applications were made by the plaintiff for setting aside that order, the last application being dated the 10th of August 1914 by which he treated the suit as not disposed of by the previous order and prayed the Court to proceed with the suit. That was rejected. Now the Court having been of opinion that leave should not be granted to the plaintiff to withdraw from the suit with liberty to bring afresh suit, it ought to have dismissed the application for withdrawal. As pointed out by Sir Lawrence Jenkins, Chief Justice, in the case of Mahant Bihari Dasji v. Parshotamdas 32 B. 345 : 10 Bom. L.R. 293. 'Where a plaintiff does not desire to withdraw from the suit, unless with liberty to bring a fresh suit, and the Court considers that such liberty ought not to be granted, the proper course is simply to dismiss the application.' And as the Court had disallowed the application for adjournment it ought to have dismissed the suit. Had that course been followed, the plaintiff would have had a right of appeal, and if there were sufficient grounds, the Appellate Court might have allowed the appeal and directed a trial of the case. The order, however, which was passed was not a proper one and, under the circumstances, we think that that order should be set aside and the suit proceeded with from the stage where it was on the 22nd August. But this must be conditional upon the plaintiff paying to the opposite party the sum of Rs. 170 as costs incurred by the latter up to date within one month of the arrival of the record in the lower Court. This amount will not be considered as costs in the cause. In default of payment of the said amount within the time specified, this Rule will stand discharged with costs, three gold mohurs.


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