Lancelot Sanderson, C.J.
1. This is an appeal from the judgment of the learned Subordinate Judge of Burdwan made on the 12th of September 1913, in which he dismissed the suit of the plaintiff on the ground that the matter was res judicata. It appears that the plaintiff brought a suit in the year 1905 in respect of the same property which was the subject-matter of this suit, asking for the same relief which he asked for in the present suit. That suit was contested, evidence being called on both sides, and the Court of first instance which heard that evidence dismissed the plaintiff's suit. Then on appeal to the lower Appellate Court, and at some stage of that hearing, he applied under Section 373 of the old Civil Procedure Code for leave to withdraw from the suit alleging first of all a formal defect, and secondly, his inability to produce the necessary evidence in time. It was admitted by the learned Vakil who argued this case for the appellant that, as far as he knew, there was no formal defect proved before the Appellate Court, and that the only ground which could be relied upon by the petitioner in that case was the second one, namely, that he had not been able to produce the necessary evidence in time at the trial before the Court of first instance. Thereupon, the Appellate Court made an order to this effect: 'The appeal is dismissed with costs and the plaintiff's suit allowed to be withdrawn with leave for fresh action for the same subject-matter, if not barred.' Thereupon, this suit was brought, and the point was taken by the defendant that the order of the Appellate Court of the 18th of May 1906 had been made without jurisdiction and that consequently the subject-matter of the present suit was res judicata by reason of the decision which was given by the Court of first instance in the previous suit in 1905. The learned Subordinate Judge has upheld that view, and has consequently dismissed the plaintiff's suit, and this appeal has been lodged against the judgment of the Subordinate Judge. In my judgment the Subordinate Judge was right.
2. The whole question depends upon whether the order of the 18th of May 1906 was made without jurisdiction. If it was within the learned Judge's jurisdiction to make it but it was a wrong order, then I can quite understand that the learned Vakil for the appellant had something to say, inasmuch as the order had been allowed to stand and the defendant against whom the order was made had taken no steps to attack that order. But if it was made without jurisdiction and it is brought to our notice now that it was made without jurisdiction and if we are satisfied that it was made without jurisdiction, then we are bound to say so and also to say that as a matter of consequence all proceedings taken in consequence of that order failed on that ground. Therefore, the only question is whether the order was made without jurisdiction. I think it was. I need not read the section in full. The section gays.... If the Court is satisfied on the application of the plaintiff (a) that the suit must fail by reason of some formal defect or (b) that there are sufficient grounds for permitting him to withdraw from the suit or to abandon part of his claim with liberty to bring a fresh suit for the subject-matter of the suit or in respect of the part so abandoned, the Court may grant such permission on such terms as to costs or otherwise as it thinks fit.... How, the words, as they stand in the section, are, of course, of general application, namely, 'that there are sufficient grounds for permitting him to withdraw from the suit:' but there are decisions of this Court which, in nay opinion, are binding upon us. It is quite true they are not upon the same section, but they are upon Order XXIII, Rule 1, of the Civil Procedure Code which is now in operation, but the learned Vakil who argued the case for the appellant admits that there is no substantial difference between this rule and Section 373 of the old Code. In the first case, Kharda Company Limited v. Durga Charan Chandra (2) it was held by my learned brother Mr. Justice Mookerjee that Clauses (a) and (b) of sub-rule (2) have to be read together and that the intention is that a ground included in Clause (b) must be of the same nature as the ground specified in Clause (a), that is to say, it must be something of the same nature as formal defect, and inasmuch as in that case the ground for allowing the suit to be started afresh was that the plaintiff should be allowed to bring a fresh suit not because there was a formal defect but for some other reason, the order was illegal. Then again the learned Chief Justice Sir Lawrence Jenkins in Mabulla Sardar v. Hemangini Debi (8) says: 'The decision in Kharda Company Limited v. Durga Charan Chandra (2) shows that Clause (b) of sub-rule (2) must be read in connection with Clause (a) and with the limitations Clause (a) suggests and so reading it, it is clear that it is not within the jurisdiction of a Court of Appeal to grant the permission on the terms which have been approved by the Court in the case. In my opinion, this Rule should be made absolute.' Therefore in the present case, inasmuch as the only ground that can be suggested for the order of the 18th of May 1906 was that the plaintiff had not been able to adduce all the evidence which he would have liked to adduce at the first hearing, I am of opinion that that was not a ground which is contemplated by Section 373 of the old Civil Procedure Code and, therefore, the order which was made by the Appellate Court was made without jurisdiction. Consequently that order having been made without jurisdiction, a fresh suit should never have been brought and the defendant was perfectly competent and was within his right when he raised the point that the matter was res judicata. I am of opinion that the lower Appellate Court was right in coming to the conclusion that it did and this appeal must be dismissed with costs.
3. I agree.