1. We are invited in this Rule to set aside an order made by the Court below under Order 23, Rule 1, Clause 2, of the Code of Civil Procedure. The plaintiff sued the defendants for recovery of money. The parties went to trial. Evidence was adduced on both sides and the argument on the side of the defendants was finished. At that stage the plaintiff applied for leave to withdraw from the suit with liberty to bring a fresh suit on the same cause of action. The Court thereupon recorded the following order: 'I have gone through the evidence. It is a case in which permission to bring afresh suit should be given. It is accordingly ordered that the plaintiff be allowed to withdraw from the suit with permission to bring a fresh suit unless barred. The plaintiff do pay the costs of the defendant in this Court.' The legality of this order is now called in question.
2. Rule 1, Sub-rule (2) of Order 23 provides that where the Court is satisfied, (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. It is manifest that Clauses (a) and (b) of Sub-rule 2 have to be read together; but it is suggested by the learned Vakil for the plaintiff that the terms of Clause (b) are wide enough to entitle the Court to allow the plaintiff to withdraw from the suit under any circumstances that may be deemed sufficient by the Court. We are not prepared to accept this as the true interpretation of the clause. Clause (a) specifies that a suit may be allowed to be withdrawn if the Court is satisfied that it must fail by reason of some formal defect. Clause (b) then proceeds to lay down that a similar order may be made for any other sufficient ground. The intention plainly is that a ground included in Clause (b) must be of the same nature as the ground specified in Clause (a). Reference may in this connection be made to the decision of the Judicial Committee in the case of Watson and Co. v. The Collector of Zillah Rajshahye 13 M.I.A. 160 : 12 W.R. 43 : 3 B.L.R. 48, where it was ruled that the Court has no power to grant permission to the plaintiff to withdraw from the suit with liberty to institute a fresh suit in a case where issues have been joined and the plaintiff has failed to, produce evidence in support of the issues. This decision was rested on the ground that the Court could make an order of this description only where the suit failed by reason of some formal defect or any analogous reason. We observe that though case was decided under the law as it stood before the Civil Procedure Code of 1859, it was treated as applicable to the law under the Code of 1882, in the recent case of Ramdeo v. Goneshnarain 12 C.W.N. 921 : 35 C. 924. The learned Vakil for the plaintiff, however, relied upon the decision of this Court in the case of Musammat Khatoon Koonwar v. Hurdoot Narian Singh 20 W.R. 163, to show that even a Court of appeal is competent to allow a suit to be withdrawn on the ground that the plaintiff by reason of some mistake or other cause, has not been able to produce the whole evidence in support of his claim. But it is clear from the judgment in that case that no objection was taken by the defendant to the order, of withdrawal which the Court proposed to make. The case of Poresh Narain v. Surut Soonduree Debee 16 W.R. 100 does not show that the Court would refuse to interfere with an order for withdrawal, improperly made by the Court of first instance; in that particular case, the order of withdrawal had been made before issues were framed and evidence adduced and might consequently be defended. In the case before us, however, as already stated, the whole of the evidence had been adduced when leave to withdraw was sought, and the learned Counsel for petitioners rightly complains that if the order of withdrawal is maintained, the plaintiff will have an opportunity to adduce not merely the evidence which he alleges he has not been able to produce at this trial, but possibly also a mass of perjured evidence. In our opinion, there is considerable force in this contention, and there is a real danger if a plaintiff is allowed to withdraw from a suit which has reached the stage at which the parties arrived in the present litigation. If, therefore, the order was irregularly made, it ought not to be allowed to stand, for there can plainly be no question that after an order under Section 373 of the Code of 1882 has been improperly made, it is competent to this Court to interfere by way of revision. In support of this proposition, it is sufficient to refer to the cases of Dick v. Dick 15 A. 169 and Tirupati v. Mutta 11 M. 322.
3. The result, therefore, is that this Rule must be made absolute and the order of the Court below discharged with costs. The case will go back to the Court below and will be taken up at the stage at which the order now discharged was made. We assess the hearing fee at two gold mohurs.