BALDEO DASS Vs. JOSHI GAURI DUTT

JUDGEMENT

(1.) This is an application for revision of an appellate order passed by the learned Civil Judge of Banaras granting permission to certain plaintiffs to withdraw their suit with liberty to bring a fresh suit under Order 23, Rule 1, Civil P. C.

(2.) The material facts lie within a short compass: One Joshi Ratan Shanker was granted a lease of some lands by the zamindar, Mt. Basant Kunwar. The rent due in respect of the lease fell in arrears and a decree for recovery of the same was obtained by the zamindar. In execution ot that decree some of the leased plots were sold at a court auction and purchased by one Baldeo Dass. Thereupon a suit was instituted by the three sons of Joshi Ratan Shanker, one of whom was a minor. It was averred that the decree for rent was fraudulently obtained, that the sale of the leased lands was set aside by the Tahsildar on deposit of the decretal amount and that this order, was subsequently set aside by the Tahsildar which he could not do for want of legal authority and that the entire proceeding before the Tahsildar was ultra vires. On the above grounds they prayed for the following reliefs:

(3.) The learned Munsif, Banaras, before whom the matter came up for hearing, held that the civil Court had no jurisdiction to entertain the suit, that the lease obtained by Joshi Ratan Shanker was not taken on behalf of the joint family, that his sons had no interest in the lease and that the suit was barred by limitation. He accordingly dismissed the suit. The plaintiffs went in appeal and the matter came up for consideration before the Additional Civil Judge of Banaras. [4] It appears that after the arguments in appeal were concluded, an application was made on behalf of the plaintiffs-appellants seeking permission to amend their plaint. The learned Judge rejected that application as ho was of opinion that it attempted to introduce entirely new matter in the controversy. Thereupon the petitioner made an application for permission to withdraw the suit with liberty to bring a fresh suit under Order 23, Rule 1, Civil P. C. The relevant portion of the application ran thus :