NARU Vs. NOJI

JUDGEMENT

(1.) THIS is a revision under Section 115 of the Code of Civil Procedure by Naru and arises in the following circumstances : naru filed a suit against his adoptive mother and three sets of defendants. So far as the first two sets of defendants were concerned, he prayed for possession of certain properties which had been alienated by his adoptive mother. So far as the third set of defendants Nos. 6, 7 and 8 was concerned, he prayed for possession of house said to have been sold to these three defendants. The case of these three defendants, however, was that the house in question belonged to them and had been mortgaged by their ancestors to the ancestors of the plaintiff and all that these defendants had done was to redeem the house.

(2.) THE suit went on against the three sets of defendants and when it was about to come to an end, an application was made on 21-5-1954 by the plaintiff for permission to withdraw the suit against defendants Nos. 6, 7 and 8 with liberty to file a separate suit. It was said on his behalf that he had made a mistake in treating this property, which had been mortgaged in the family as the property of the family and there was, therefore, complication in the suit and he had been unable to look after it properly and there were other formal defects. He, therefore, prayed that he might be permitted to withdraw the suit against these three defendants with liberty to bring a fresh suit.

(3.) THE learned Munsif permitted the withdrawal of the suit, but refused to give permission to bring a fresh suit. Aggrieved by this order, the present revision was filed by the plaintiff-applicant and his case is that the Munsif should either have dismissed the application in toto and carried on with the suit as it was or should have allowed withdrawal with liberty to bring a fresh suit and that it was not within the power of the Munsif to break up his application into two parts and allow the part relating to withdrawal and refuse the part relating to the prayer for liberty to bring a fresh suit.