1. This appeal is by the plaintiff. The only point taken is that the lower Appellate Court should have given him permission under Order 23, Civil Procedure Code to withdraw the suit with liberty to bring a fresh suit. The suit was brought by the plaintiff in the Court of the Munsiff of Howrah in respect of a certain pathway of which he claimed to be the owner. He claimed in the alternative that he had a right of way over the disputed pathway and also that the pathway was a public pathway. At the trial before the Munsiff he gave up his claim with respect to his alleged title to the land and it was found that the plaintiff had failed to prove that he had a prescriptive right of way over the land or that the pathway was a public pathway. The defence raised various preliminary objections with regard to the maintainability of the suit and the issues framed thereupon ware (1), 'whether the plaintiff's claim for a public pathway is maintainable and (2), if the plaintiff's suit is bad for non-joinder of parties?' The last issue had reference to the Howrah Municipality, within whose jurisdiction the land in suit lay, not being made a party to the suit. It was found by the learned Munsiff on the merits that the plaintiff had failed to prove any of his alleged claims. With regard to the maintainability of the suit the learned Munsiff found that the suit in so far as it related to the declaration of the path way being a public pathway was not maintainable under the provisions of Section 91, Civil Procedure Code. There was an appeal by the plaintiff from the order of dismissal of the suit and prayer was made before the lower Appellate Court by the plaintiff for permission to withdraw the suit with liberty to bring a fresh suit in respect of the same subject-matter. By his order dated the 4th April, 1923, the learned Subordinate Judge rejected the plaintiff's prayer for withdrawal of the suit and proceeded to the trial of the suit on the merits and finally upheld the decree of lower Court and dismissed the appeal.
2. In this appeal we are asked to hold that the order passed by the lower Appellate Court refusing permission to the plaintiff to withdraw the suit is bad in law and that the plaintiff ought to have been allowed to withdraw the suit with liberty to bring a fresh suit on the ground that the suit was bound to fail by reason of certain defects within the meaning of Order 23, Rule 1.
3. The first point that arises for consideration is whether this prayer was properly made in the lower Appellate Court. The Bombay High Court has adopted the view that Order 23, Rule 1 applies only when the case is before the trial Court; but after it has been perfected into a decree the plaintiff loses his right for applying for withdrawal of the suit. But this Court has also in appeals given such permission under Order 23, Civil Procedure Code, but generally, in a case where, as has bean pointed out by the Madras High Court in the case of Kamuyya v. Papayya (1916) 40 Mad. 259, the appellate Court discovers that the suit ought to fail on the ground of soma formal defect and by reason of such discovery it is of) opinion that the decree of the trial Court ought to be reversed. The defects which the learned advocate now appearing for the appellant says are formal and should form a ground for withdrawal of the suit) are the objections which were taken in the written statement and made the subject of issues in the first Court. The plaintiff being aware of those defects went to trial and fought the case out with a view to pursuade the Court to hold that the defects which were pointed out did not exist. Having failed there it does not lie in his mouth at the appellate stage to say that they were really forma defects and because they ware so the lower Appellate Court should have given him permission to withdraw from the suit. We do not like to lend support to the course sought to be adopted by the plaintiff.
4. The next question that presents itself in this connection is whether the appellant can attack the order of the lower Appellate Court refusing permission under Order 23, Rule 1, Civil Procedure Coda in appeal from the decree of that Court dismissing the plaintiff's appeal. The only provision in the Code which may apply to circumstances of the present case is contained in Section 105, Civil Procedure Code. Under that section when a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal. That section empowers the appellant to assail all interlocutory orders passed in the progress of the litigation in the Court below provided such order affected the decision of the case in the lower Court. The different High Courts have taken different views with regard to the interpretation of the expression 'affecting the (decision of the case.' Our Court however has held that by that expression is meant affecting the decision of the case on its merits. See the oases of Chintamony Dassi v. Raghoonath Sahoo (1895) 22 Cal. 981, and Mt. Kariman v. A. H. Forbes (1905) 8 C.L.J. 308; and this view has recently been adopted by this Bench in Mahamed Narul v. Monohar Soran Deb : AIR1925Cal473 . It has therefore to be seen whether the order passed by the lower Appellate Court refusing permission to the plaintiff is an order which affects its decision on the merits. In our judgment the order is such as does not fall within the provision of Section 105, Civil Procedure Code. The interlocutory orders which can be challenged in an appeal against the final decree are of such a nature as would or might have induced the Court to alter its decision; for instance an order refusing to admit a document which is in law admissible, or to examine a witness or to issue commission or some such act which is calculated ultimately to influence the decision of the Court on the merits. The present order is not one which could in any way interfere with the judgment of the lower Appellate Court on the merits of the case. I am accordingly of opinion that the order passed by the Court below on the 4th July, 1923, is not such an order as can be attacked on appeal from the decree passed by that Court.
5. With regard to the merits of the plaintiff's prayer I am at one with the lower Appellate Court that the defects which are complained of are not really formal defects but are defects which go to the root of the case. One of the objections taken by the defendant is that the suit is not maintainable in its present form as the plaintiff cannot sue for declaration of a public right of pathway without taking recourse to Section 91, Civil Procedure Code or Order 1, Rule 8, Civil Procedure Coda and without proving special damages. Both the Courts have found that the plaintiff failed to prove that he personally sustained any damage and therefore ha is not entitled to bring a suit. It cannot be said that this is merely a formal defect. The plaintiff came to Court with his ayes open with the hope and did hope, that he would succeed in the case in spite of this objection. The other objection taken by the defendant was that the Howrah Municipality ought to have been made a party. The learned Subordinate Judge rightly held that the Municipality was not a proper party since if the plaintiff succeeded in the suit for declaration that the pathway is a public pathway it would be to the advantage of the Municipality as it would then to the owner of the soil. Accordingly I do not think that the defects were such formal defects as would enable the Court to give the necessary permission to the plaintiff to withdraw from the suit with liberty to bring a fresh suit in respect of the same subject-matter. In conclusion I should like to observe that where the discretion vested in the Court below is property exercised and not arbitrarily I think that this Court ought not to interfere with the exercise of that discretion.
6. The appeal accordingly fails and is dismissed with costs.
7. Let the record be sent down as early as possible.
8. I agree that this appeal should be dismissed. Without deciding whether the learned Subordinate Judge was right or wrong in holding that there were no formal defects I am of opinion that even if he is wrong and there were formal defects the plaintiff could not be allowed in the present circumstances to withdraw with liberty to bring a fresh suit. The plaintiff has had ample notice from the written statements of the defendant that his suit was challenged on the ground that he did not make an application under Order 1, Rule 8 or obtained the sanction in writing of the Advocate-General under Section 91, Civil Procedure Code and also that the suit was bad for defect of parties. In spite of these objections, he persisted with his eyes open in proceeding with the suit and now he cannot argue that he should be allowed to withdraw it on the grounds which were brought to his notice when in spite of that notice he still proceeded with the suit without amending his plaint. To allow the plaintiff to withdraw the suit in such circumstances would be a grave injustice to the respondent. The plaintiff most generally states that ha is willing to pay all costs to the defendant if he is allowed to withdraw the suit. The Court has already ordered him to pay all costs of the respondent whether he is or is not allowed to withdraw the suit with leave to bring a fresh suit.