ABDUL SOBHAN KHAN Vs. SAMASUDDIN AHMED

JUDGEMENT

(1.) The order complained of purports to be one under Order 23, Rule 1, Civil P. C, and was passed by the learned Additional Subordinate Judge of Mymensingh in an appeal from a judgment of the Munsif of Bajitpur. The order is couched in the following terms: At the heaving oil this appeal, the plaintiff has prayed for withdrawal of his claim in respect of plot 3 of the suit land with permission to bring a fresh suit. The other party objected to the grant of fresh permission, but if is clear from the pleadings that as there are other formal defects in the ease the plaintiff is entitled to withdrawal of his claim in respect of plot 3 with permission to bring a fresh suit. Accordingly, I allow the plaintiff to withdraw his claim in respect of plot 3 with permission to bring a fresh suit, if not otherwise barred in law.

(2.) It is contended on behalf of the petitioner that this order is without jurisdiction, inasmuch as it contains no indication of the formal defects referred to therein, and no finding that the suit must fail by reason of such formal defects. On behalf of the opposite party it is urged that the suit was, in fact, bad for defect of parties and that the lower appellate Court would have been fully justified in holding that the suit must fail by reason of the said formal defects. It is maintained that the lower appellate Court had jurisdiction under Order 23, Rule 1 and that this Court ought not in the present case to interfere as regards the manner in which its discretion has been exercised.

(3.) In the trial Court an issue was raised as regards the alleged defect of parties and that issue was definitely decided in favour of the plaintiff. The plaintiff's suit was however dismissed on the merits, so far as plot 3 was concerned. In the application for withdrawal filed before the lower appellate Court the formal defects in consequence of which the suit must fail were not specified, it being merely stated that there were certain formal defects, including nonoinder by reason of which there was no chance of success, and from the passage in the judgment of the lower appellate Court above it "will appear that no findings were arrived at as to what the alleged formal defects were. In view of the absence of such findings it seems to me to be reasonably clear, that the lower appellate Court did not at all apply its mind to the questions of whether any formal defects existed, and whether the suit must fail by reason of such defects. This being so, the order complained of must, in my opinion, be held to have been without jurisdiction it being essential in all such cases that the lower appellate Court should give adequate reasons when granting permission to a plaintiff whose suit has been dismissed to withdraw from such suit or abandon any part of his claim with liberty to bring a fresh suit: vide Subasini V/s. Ashutosh and Harshamurthi V/s. Snrat Chundar [1928] 117 I.C. 864. Moreover, the suit having been fought out and decided on the merits and there being a distinct finding by the trial Court that there was no defect of parties, it would not in any case have been open to the lower appellate Court to make the order complained of: vide Ram Saran V/s. Radha Raman .