PURANMAL AGARWALLA AND ORS. Vs. RAUTMAL PINCHA

JUDGEMENT

(1.) THIS petition of revision is directed against an order of the Munsiff of Jorhat allowing plaintiff to withdraw the suit with permission to sue afresh on the same cause of action. On behalf of the defendant it is contended that the order is vitiated by a materially irregular exercise of jurisdiction.

(2.) THE petition for withdrawal embodied the allegation that the property in suit had not been correctly described. The learned Munsiff in his order stated that the plaintiff wanted to withdraw with liberty to file a fresh suit on account of some formal defect in the description of the land shown in the schedule attached to the plaint. After stating the plaintiff's case on the point he ordered as follows: - -"The plaintiff is allowed to withdraw the suit with permission to sue afresh if not otherwise barred." The learned Munsiff has given no reason in support of his order. Under Order 23, Rule 1 he could allow withdrawal of the suit if he felt satisfied that suit would fail by reason of some formal defect or that there were other sufficient grounds for allowing the plaintiff to institute a fresh suit. He has not given any reasons for his satisfaction. He has not stated that the suit would fail by reason of some formal defect or that there was any other sufficient ground for allowing withdrawal of the suit with permission to bring a fresh suit. In Abdul Razak v. Mahammad Hanif : AIR 1947 Mad 59 it was held that

(3.) MR . Barua, the learned counsel for the Opposite Party has tried to support the order. Relying on Jhunku Lal v. Bisheshar Das, 40 ALL. 612, he has contended that a wrong exercise of discretion in granting the application did not attract the revisional jurisdiction of this Court. This may be a correct proposition but in this case there does not appear to have been any exercise of judicial discretion. Besides, the failure on the part of the Court to give any reasons amounts to a material irregularity which is fatal to the order. Sadeq Baza v. Asaf Kader which is another case on which Mr. Barua has relied, also does not help him. It is distinguishable on facts. The view expressed in this case was that in order to induce the High Court to interfere in revision with matters mostly within the discretion of the trial Court it is necessary that it should be perfectly satisfied that the order was not supported by any consideration of justice or by any provision of law. The present case is, in my opinion, within the ambit of the rule laid down in this case.