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Rani Harshamukhi Dassi and anr. Vs. Sarat Chandra Ata - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in117Ind.Cas.864
AppellantRani Harshamukhi Dassi and anr.
RespondentSarat Chandra Ata
Cases ReferredLtd. v. Durga Charan Chandra
Excerpt:
civil procedure code (act v of 1908), section 115, order xxiii, rule 1 - withdrawal of suit--no formal defect in plaint--jurisdiction of court to allow withdrawal with liberty to bring fresh suit--revision. - .....must be made absolute. it appears that the munsif permitted the plaintiff to withdraw from the suit with liberty to institute a freshsuit on the plaintiff pays before hand the costs of defendants nos. 1 and 2. the munsif does not state in his judgment that there are any formal defects in the plaint. that was an essential fact to be considered. the munsif had no jurisdiction to permit withdrawal unless there was something to show that the suit must fail by reason of some formal defect. the learned advocate for the opposite party contends that after all the order of the munsif was irregular and in some of the cases in the allahabad high court it has been held that in such a case it does not call for interference in revision. he concedes that this is contrary to the decisions of this.....
Judgment:

Mitter, J.

1. This Rule must be made absolute. It appears that the Munsif permitted the plaintiff to withdraw from the suit with liberty to institute a freshsuit on the plaintiff pays before hand the costs of defendants Nos. 1 and 2. The Munsif does not state in his judgment that there are any formal defects in the plaint. That was an essential fact to be considered. The Munsif had no jurisdiction to permit withdrawal unless there was something to show that the suit must fail by reason of some formal defect. The learned Advocate for the opposite party contends that after all the order of the Munsif was irregular and in some of the cases in the Allahabad High Court it has been held that in such a case it does not call for interference in revision. He concedes that this is contrary to the decisions of this Court. It has been decided in the case of Kharda Co., Ltd. v. Durga Charan Chandra 5 Ind. Cas. 187 : 11 C.L.J. 45 that such an order for withdrawal is without jurisdiction. The order for the Munsif, dated the 3rd April, 1928, permitting the plaintiff to withdraw from the suit with liberty to bring a fresh suit on the same cause of action, is set aside and the case is sent back to him in order that he may re-try the suit in accordance with law.

2. I make no order as to costs.


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