FULCHAND KHANDELWAL Vs. RAMESHWAR LAL SATNALIWALA

JUDGEMENT

(1.) It is a matter of regret in this case that the erroneous Order of the learned Munsif allowing the plaintiff-opposite party No. 1 to withdraw his suit with liberty to sue afresh has been passed by the learned Munsif, as it seems from the order under revision, without applying his mind and without looking to the relevant provisions of the law. This has unnecessarily delayed the disposal of the suit and has served the plaintiff's purpose to some extent, although the order is being set aside by me.

(2.) The suit was fixed up for hearing on the 29th June, 1960. It was instituted more than three years ago. On the date prior to that, that is, on the 24th May, 1960, he had applied for time to come ready to proceed with the suit. On his application as well as on the application of the defendants for time, the suit was adjourned to the 29th June, 1960. On that date, however, the plaintiff instead of proceeding with the suit filed an application under Order 23, Rule 1 (2) of the Code of Civil Procedure for permission to withdraw the suit with liberty to institute a fresh one on the same cause of action. The reason for seeking that permission, as mentioned in the petition, was :

(3.) The learned Munsif, after hearing the parties' lawyers passed the following order : "The plaintiff is permitted to withdraw the suit with liberty to sue afresh subject to limitation if any." He has not given any reasons as to why he was permitting the plaintiff to withdraw the suit under Sub-rule (2) of Rule 1 of Order 23 of the Code. He has found neither any formal defect in the suit nor any sufficient cause for granting that permission. He has not cared to see that the cause, which was disclosed in the petition filed by the plaintiff, was one which only showed that he was not ready with his evidence on the 29th June, 1960 when the suit was going to be taken up for hearing. That could never be a sufficient cause for giving permission to the plaintiff to withdraw the suit with liberty to file another one on the same cause of action. In my opinion, the order is wholly without jurisdiction and must be set aside. Vide the decisions in Mahendra Ram v. Singi Lal, AIR 1918 Pat 261, Lachi Rai v. Raghubir Dube, AIR 1918 Pat 372 and Nathuni Ram v. Mr. Sheo Koer, AIR 1918 Pat 452. I, therefore, allow this application in revision with costs, hearing fee Rs. 64/- and set aside the order of the learned Munsif granting permission to the plaintiff to with draw the suit.