HRIDYANATH ROY Vs. RAM CHANDRA BARUA SARMA

JUDGEMENT

(1.) The suit which has culminated in this reference wag instituted by the appellants for recovery of possession of land upon declaration of title. The Court of first instance found in favour of the plaintiffs upon the questions, of title and possession and decree d the suit. Upon appeal, the Subordinate Judge affirmed the findings of the trial Court as to title and possession, but dismissed the suit on the ground that a previous suit, instituted in respect of the same subject matter, had been improperly withdrawn under Order XXIII, Rule 1(2). In support of this view, the Subordinate Judge relied upon the decision in Kali Prasanna Sil v. Panchanan Nandi Chowdhury 33 Ind. Cas. 670 : 23 C.L.J. 489 : 20 C.W.N. 1000 : 44 C. 367 which is an authority for the proposition that where the Appellate Court allows a plaintiff to withdraw from a suit on the ground that he had not been able to adduce all the evidence which should have been adduced, the order is without jurisdiction and a fresh suit brought in pursuance of that order is barred by res judicata. In the previous litigation, it appears, the plaintiffs succeeded in the Primary Court. Upon appeal by the defendants, the following order was recorded by the Subordinate Judge on the 18th September 1913: Heard both parties and appellant objection. The plaintiff respondent applies to withdraw from suit with liberty to bring fresh suit. There appears reason. The plaintiff filed a Chitta dated 1246 B.S. his case is that the disputed land is covered by that Chitta as belonging to him. That Chitta was not compared or re-laid in the locality and the identity was not established, the oral evidence is not sufficient. I, therefore, allow the snit to be withdrawn and permit the plaintiff to bring fresh suit, if not otherwise barred, on condition of his paying appellants costs in both the Courts before institution of fresh suit. Appeal thus disposed of.

(2.) The present suit was, thereafter, instituted on the 2nd April 1914, and was, as already stated, decreed by the trial Court where no objection was taken by the defendants that it was barred by reason of the alleged incompetence of the order in the previous suit. The objection was taken in the lower Appellate Court for the first time, as the decision in Kali Prasanna Sil v. Panchanan Nandi Chowdhury 33 Ind. Cas. 670 : 23 C.L.J. 489 : 20 C.W.N. 1000 : 44 C. 367 had been meanwhile pronounced and published. The Subordinate Judge entertained and gave effect to the objection, which he described as a technical ground not taken in the lower Court. On second appeal to this Court, the Division Bench has dissented from the view taken in Kali Prasanna Sil v. Panchanan Nandi Chowdhury 33 Ind. Cas. 670 : 23 C.L.J. 489 : 20 C.W.N. 1000 : 44 C. 367 and has referred the following questions for decision by a Full Bench: (1) If an order for withdrawal of a suit with leave to institute a fresh suit be made under Order XXIII, Rule 1, Civil Procedure Code (or Section 373 of Act X, 1877) but an a ground not of the same nature as "formal defeat" mentioned in Clause (a), can it be treated as an order made without jurisdiction and, therefore, null and void? (2) Is a fresh suit instituted upon such leave incompetent? (3) Is the Court trying the subsequent suit competent to enter into the question whether the Court, which granted the plaintiff permission to withdraw the first suit with liberty to bring a fresh suit, had jurisdiction to make such an order? (4) Is such an order open to revision under Section 115, Civil Procedure Code?

(3.) Order XXIII, Rule 1, mentioned in the first of these questions, is in the following terms: (1). At any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied (a) that a suit must fail by reason of some formal defeat or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of a claim. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub-rule (2) he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such Subject-matter or such part of the claim. (4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.