CHIRANJI LAL Vs. IRPHAN ALI AND ANR

JUDGEMENT

(1.) This is an application in civil revision by a defendant against an order of the lower appellate Court. The plaintiff brought a suit for recovery of possession of a house against two persons and the Munsif dismissed the suit. The plaintiff brought an appeal and the question arose whether a certain person Mohan Lal should have been joined as a party to the suit. The plaintiff stated, that he desired to make Mohan Lal a party and that for that purpose he desired permission to withdraw the suit and to bring a fresh suit under Order 23, Rule 1, and the appellate Court granted the per mission. The first argument of learned counsel was that the lower Court should have only allowed such permission on account of some formal de fact. Under the rule in question there are two Sub-rule (a) and (b), one for a formal defect and the other for any other sufficient grounds. A Court may act under either of these sub-rules. ] The Court below has acted on what j the Court considered to be "other sufficient ground." We do not consider that it is necessary for us to enquire into the sufficiency of the ground. All that we have to do is to see that the lower Court applied its mind to the question before it. The lower Court has written about a page on the subject and therefore it is apparent that it did apply its mind. Learned Counsel for the applicant relied on certain rulings in the latest of which Jumma v. Prem Sahai 1934 All. 137, a learned Judge of this Court laid down the criterion that this Court in revision under 115, Civil P.C., should see whether the Court below has or has not applied its mind to the matter before it, i.e., whether the plaintiff should be granted permission to withdraw his suit under Order 23, Rule 1. In Jhunku Lal v. Bisheshar Das 1918 All. 418, a Bench of this Court held that even if the Court below had exercised a wrong discretion in granting leave to withdraw a suit the case would not come under Section 115, Civil P.C., for revision by this Court. Following these rulings we hold that no case has been made out for revision and we dismiss this application with costs.