RAGHBIR Vs. ROSHAN LAL AND OTHERS

JUDGEMENT

(1.) THIS is a defendant's revision directed against the order of a learned Subordinate Judge 1st Class, Mohindergarh, allowing withdrawal of the suit in question with liberty to bring a fresh suit under Order 23, Rule 1, Code of Civil Procedure.

(2.) IT a spears that a suit was filed by four brothers sons of Gopal for a declaration about their rights in certain land. Sometime later, it is alleged one of the plaintiffs died and perhaps his legal representatives did not apply for prosecuting the said suit. Thereupon, it appears from the record that an application was put in on behalf of the plaintiffs under Order 23, Rule 1, merely stating that certain persons had not been impleaded as parties who were necessary parties and, therefore, the suit be permitted to be withdrawn with permission to file a fresh suit. Persons mentioned in the application appear to be some sons of Kala Vati and some daughters of Raghunath. Raghunath, it may be mentioned, was stated to be one of the original plaintiffs. This application was filed on 24th August 1962. On the same day, the learned Subordinate Judge passed the following order :

(3.) ON behalf of the respondents, however, it has been conceded that there is no formal defect on account of which the suit was likely to fail and that any co -sharer can institute a suit for declaration of his own right. It has also not been controverted that it is not possible for co -plaintiffs to compel the legal representatives of a deceased plaintiff to prosecute a suit as a plaintiff. In view of this position, it is obvious that merely because Raghunath had died after the institution of the suit or even if he had died before the institution of the suit and his legal representatives did not choose to join the plaintiffs in the present suit, it could not prove a formal defect for which the suit was bound to fail. In this view of the matter I do not understand how this suit could be allowed to be withdrawn on account of any formal defect. The counsel in this Court, however, contends that in any event, there is a sufficient ground for permitting withdrawal. This submission too is difficult to sustain because the order of the learned Subordinate Judge does not show any sufficient ground; and if I may say so, it was the Court's duty to make his order a speaking order so that this Court could in its supervisory jurisdiction see that the order was within the bounds of Order 23, Rule 1, and not arbitrary or based merely on the Court's sweet will. It must never be forgotten that when a discretion is given to a Court of justice, the discretion has to be exercised on well -recognised judicial principles and the order should not give an impression that the Court has treated the matter as if it is completely dependent on his own private opinion, fancy, or pleasure. The Courts of this Republic are expected to constantly keep in view that justice must not only be done but it must also be seen to be done; and an order which does not contain the reasons on which it is based violates this salutary ingredient of the rule of law as distinguished from the rule of men. It is a distinctive feature of our constitional set up that our judicial process functions in the open with no secret archives, no confidential considerations and no concealed reasons. Our Court proceedings are open to the public and the reasons for judicial orders appear on their face, for any one to fairly and honestly comment on it in the public interest. It is this quality of our justice which enables our judiciary to have command over the hearts and minds of men thereby giving it strength, prestige and respect.