SATYENDRA SHYAM NAG Vs. BANKIM CHANDRA PRADHAN

JUDGEMENT

(1.) PETITIONER who is defendant No. 1 assails correctness of the order passed by learned Subordinate Judge, Balasore permitting the plaintiff (opp. party No. 1) to withdraw a suit with liberty to bring a fresh suit. The motion was objected to by the petitioner on the ground that such liberty ought not to be granted in the circumstances of the case It was specifically brought to the notice of Court that the suit had already been dismissed against defentant Nos. 2 and 3 for non -compliance of orders passed by the Court. It was also indicated that the application filed for setting aside the order so far as these defendants are concerned having been rejected by Court, the suit was bound to fail and this was not a case of formal defect. The Court, therefore, had jurisdiction to grant requisite permission in terms of Order 23, Rule 1, Sub -rule (2) of the Code of Civil Procedure, 1908 (in short the 'Code'). Learned Subordinate Judge held that the suit was bound to fail unless defendant Nos 2 and 3 were brought on record and the same constituted a formal defect and, therefore, prayer for withdrawal of the suit with liberty to file a fresh suit was entertainable.

(2.) IN spite of notice, opposite parties have not entered appearance.

(3.) THE only point for resolution is whether the permission granted to withdraw suit with liberty to file fresh suit was rightly accorded.