SADHU SINGH Vs. INDER SINGH

JUDGEMENT

(1.) This revision petition must be allowed on the short ground that the Subordinate Judge acted with gross irregularity in allowing the plaintiff to withdraw the suit without satisfying himself that really there was a formal defect as a result whereof the suit was likely to fail. The order against which the revision has been filed does not disclose that the Subordinate Judge ever cared to read the provisions of Order 23 rule 1 or that he applied his mind as to what the nature of the formal defect was. What seems to have happened is that the plaintiff after the close of his case and before the defence evidence could be recorded made a statement that he wanted to withdraw the suit. A request was accordingly made that he be permitted to withdraw the suit with liberty to file another on the same cause of action. It is not every defect that can be treated as formal and the provision of law as contained in Order 23, rule 1 is not intended to give another opportunity to the plaintiff to prove his case if he finds that he has not been able to adduce proper evidence.

(2.) The only argument raised on behalf of the plaintiff-respondent by Mr. D.S. Chahl is that the counsel for the defendant-petitioner agreed to the withdrawal of the suit by the plaintiff. Miss Surjit Kaur Tanque, appearing for the petitioner, read to me the order and I do not find that the counsel ever consented and even if he did agree, the Court was not absolved of its own duty cast upon it by law.

(3.) In the result, the revision petition is allowed and the order of the trial Court permitting the plaintiff to withdraw the suit with permission to file a fresh one is set aside. There is no order as to costs. The counsel have been directed that the parties should appear in the trial Court on the 8th February, 1971. Revision allowed.