INAYAT ALI Vs. NATTHU KHAN

JUDGEMENT

(1.) THIS is an application for revision of an order passed under Order 23, Rule 1, Civil P. C. by the Sub-Divisional Officer, Shahabad (Hardot district) in a case under Section 12, Agriculturists' relief Act. The material facts are as follows :

(2.) ON 29-11-1950, an application was made by one Natthu Khan for redemption of a mortgage alleged to have been executed by his father Yusuf Khan in 1920 in favour of the opposite parties, inayat Ali and Basharat Ali. A number of defences were taken to the claim for redemption. one of these was a total denial of the alleged mortgage-Natthu Khan contended in reply to this defence that the mortgagees had instituted a suit in the Court of the Munsif Shahabad for possession of the mortgaged property on the basis of that deed of mortgage and obtained a decree in that suit in 1931. He applied for summoning the record of the case on which that decree was passed. His contention was that the original mortgage deed could be found in that record. It appears, however, that he was remiss in summoning of his evidence. Accordingly, on. 27-4-1951, Natthu Khan made an application for permission to summon and adduce some further evidence in support of his averment. This application was not disposed of till 10-5-1951, when evidence that was ready and available was recorded. The application for permission to summon and adduce further evidence was dismissed, on that date and the case was closed. Thereupon natthu Khan put in an application under Order 23 Rule 1, Civil P. C. praying for permission to withdraw the suit with liberty to bring a fresh suit. It was vaguely mentioned in his application that there were certain formal defects ('naqais canuni') on account. of which the suit was bound to fail. The learned Sub-Divisional Officer without considering what these defects were, or if they were of a character on the basis of which permission to withdraw the suit with liberty to bring a fresh suit could be given under Order 23 Rule 1, Civil P. C. , allowed the application and granted permission to withdraw the suit with liberty to bring a fresh suit. Dissatisfied with this order, the mortgagees have come up in revision.

(3.) IT was held in -- 'abdul Ghafoor v. Abdul Raham', A. I. Rule 1951 All 845 (FB) (A), following a number of cases of the Oudh Chief Court, that the words "other sufficient grounds" in Order 23 rule 1 (2) (b), Civil P. C. cover grounds analogous to those mentioned in Rule 1 (2) (a ). It was further held that if the Court purports to exercise discretion under Clause (b) but the grounds are not analogous to the defects referred to in Clause (a), the discretion, even though judicial, can be interfered with under Section 115, Civil P. C. It has been held in a number of cases that if a court disposes of an application under Order 23 Rule 1. Civil P. C. Without applying its mind to the determination of the question whether the defects referred to as the basis for the prayer to withdraw the suit are of the character mentioned in Order 23 Rule 1, Civil P. C. , its order is without jurisdiction. In the present case the learned Sub-Divisional Officer did not apply his mind to this aspect of the matter. No specific reference was made in the application of 10-5-1951, to any defect on account of which the suit was bound to fail, nor do we find any reference to such defects in the order passed by the learned Sub-Divisional Officer. In these circumstances, the order granting permission to withdraw the suit with liberty to bring a fresh suit is set aside.