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Gosto Behary Gorai and ors. Vs. Hari Hara Ram Mondal - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in95Ind.Cas.199
AppellantGosto Behary Gorai and ors.
RespondentHari Hara Ram Mondal
Excerpt:
civil procedure code (act v of 1908), order xxiii, rule 1, order xli, rule 17 - appeal--withdrawal of suit, application for, rejection of-procedure--dismissal for default, legality of. - .....action. on that application being filed, it appears that the hearing of the case was stopped. the learned subordinate judge instead of making an order then and there took time and finally dismissed the appeal, as he says in the last line of his judgment, for non-prosecution. i think the learned judge's order is wrong. if he was of opinion that the application for the withdrawal of the suit as prayed for by the plaintiffs could not be granted, it was his duty to hear the appeal. he should have either acceded to the prayer for withdrawal on the terms indicated in the petition or he ought to have heard the appeal. i think, therefore, that the order of the learned subordinate judge should be set aside. he should hear the appeal on the merits and dispose of it according to law. the rule is.....
Judgment:

1. This Rule was obtained by the plaintiffs who were the appellants before the Court of the Subordinate Judge of Burdwan in an appeal against a judgment and decree of the Munsif of Katwa. After the appeal was partly argued, the petitioners put in an application for leave to withdraw from the suit with liberty to bring a fresh suit on the same cause of action. On that application being filed, it appears that the hearing of the case was stopped. The learned Subordinate Judge instead of making an order then and there took time and finally dismissed the appeal, as he says in the last line of his judgment, for non-prosecution. I think the learned Judge's order is wrong. If he was of opinion that the application for the withdrawal of the suit as prayed for by the plaintiffs could not be granted, it was his duty to hear the appeal. He should have either acceded to the prayer for withdrawal on the terms indicated in the petition or he ought to have heard the appeal. I think, therefore, that the order of the learned Subordinate Judge should be set aside. He should hear the appeal on the merits and dispose of it according to law. The Rule is made absolute in these terms with costs-hearing fee one gold mohur.


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