BHAG MAL Vs. MASTER KHEM CHAND

JUDGEMENT

(1.) This is a defendant's petition under Section 115 of the Civil Procedure Code against the order of Shri Ranjit Singh, Subordinate Judge 1st Class, Pathankot, dated the 22nd October, 1959, by means of which he allowed the Plaintiffs to withdraw the suit under Order 23, Rule 1, Civil Procedure Code, with liberty to institute a fresh suit in respect of the same subject-matter on payment of Rs. 10/- as costs,

(2.) The dispute in this case relates to 8 kanals 2 marlas of agricultural laid which the Plaintiffs claim as heirs of one Pars Ram. The defendant denied that the plaintiffs were the reversioners or heirs of Pars Ram and the plaintiffs were, therefore, put to Proof of that fact. The issues were framed on the 28th November, 1958, and parties were called upon to produce evidence on the said issues. After both the Parties had closed their evidence on the 29th July, 1959, the case was posted for arguments on the 20th August 1959. Part of the arguments were heard on that day and the case was adjourned for rest of the arguments to next day, i. e., 21st August, 1959. On that day the plaintiffs filed an application that they had not been able to have service effected on two pandas of Mattan who had to prove the pedigree table and as a result of this they were prejudiced in the conduct of their Case. It is on these bases that they sought permission of the Court for withdrawal of the suit with leave to bring a fresh suit on the same cause of action. The petition was opposed by the defendant who controverted the various allegations made by the plaintiffs in support of permission being accorded to them. The defendant's case was that the plaintiffs, having failed to adduce Proper evidence, were not entitled to withdraw the suit and to have another opportunity of harassing him by instituting another suit. The learned Subordinate Judge granted the permission as he felt that it would be equitable to do so.

(3.) It is contended in this petition by the defendant that there was no formal defect in the suit, nor was there any other sufficient reason for the permission being granted to the plaintiffs to withdraw the suit with liberty to bring another suit on the same cause of action. Mr. Puri, who appeared for the petitioner, relied on a Full Bench judgment of the Allahabad High Court, Abdul Ghafoor v. Abdul Rahman, AIR 1951 All 845, as also on a Full Bench judgment of the Bombay High Court in Ramrao Bhagwantrao v. APpanna Samage, AIR 1940 Bom 121. He further relied on Dr. Sukumar Gupta v. Chairman, District Board, Gaya, AIR 1935 Pat 251 and Veeraswami v. Lakshmudu, AIR 1951 Mad 715. In all these cases it has been held that the Courts have jurisdiction to grant such a permission, only for reasons falling within the ambit of clause (a) of Rule 1(2) of Order 23, Civil Procedure Code, or for any grounds which, though may not be exactly ejusdem generis to the same, but still be somewhat analogous to them. With great respect I agree with the view taken in those rulings and I think this Proposition of law is now well-established. The facts of the ruling relied upon by the learned trial Judge, i. e., Gurprit Singh v. Punjab Government. AIR 1946 Lah 429, were entirely distinguishable from those of the present case. Permission was actually granted in that case, because the Bench found that the counsel for the plaintiffs had not drafted a proper plaint and had not Claimed proper reliefs, Mr. Vikram Chand Mahajan, the learned counsel for the respondents, has relied upon five other cases -- Sadeq Reza v. Asaf Kader AIR 1931 Cal 268 (269); Koomar Poresh Narain Roy v. Ranee Surut Soonduree Debee, 16 Suth WR 100; Kali Ram v. Dharman, 147 Ind Cas 441 : (AIR 1934 All 214); Manohar Rao v. Mt. Parwati, AIR 1953 Nag 127 and Afzal Begam v. Akbari Khanum. ILR 37 All 326 : (AIR 1915 All 123). None of these cases has any real applicability to the facts of the present case. In AIR 1931 Cal 268, a certain portion of the claim, namely, the claim for cesses, had been left out by mistake and permission was accorded to withdraw the previously instituted suit and to file a fresh suit so as to enable the plaintiff to include the left out claim also in the new suit. There is no doubt that some observations were made by the Bench in that case in column 1, page 269, of the report and they are as under:-