NISHI KANTA SARKAR Vs. UMAR LAL SARKAR

JUDGEMENT

(1.) This appeal is by the plaintiff. The only point taken is that the lower Appellate Court should have given him permission under Order 23, Civil Procedure Code to withdraw the suit with liberty to bring a fresh suit. The suit was brought by the plaintiff in the Court of the Munsiff of Howrah in respect of a certain pathway of which he claimed to be the owner. He claimed in the alternative that he had a right of way over the disputed pathway and also that the pathway was a public pathway. At the trial before the Munsiff he gave up his claim with respect to his alleged title to the land and it was found that the plaintiff had failed to prove that he had a prescriptive right of way over the land or that the pathway was a public pathway. The defence raised various preliminary objections with regard to the maintainability of the suit and the issues framed thereupon ware (1), "whether the plaintiff's claim for a public pathway is maintainable and (2), if the plaintiff's suit is bad for non-joinder of parties?" The last issue had reference to the Howrah Municipality, within whose jurisdiction the land in suit lay, not being made a party to the suit. It was found by the learned Munsiff on the merits that the plaintiff had failed to prove any of his alleged claims. With regard to the maintainability of the suit the learned Munsiff found that the suit in so far as it related to the declaration of the path way being a public pathway was not maintainable under the provisions of Section 91, Civil Procedure Code. There was an appeal by the plaintiff from the order of dismissal of the suit and prayer was made before the lower Appellate Court by the plaintiff for permission to withdraw the suit with liberty to bring a fresh suit in respect of the same subject-matter. By his order dated the 4 April, 1923, the learned Subordinate Judge rejected the plaintiff's prayer for withdrawal of the suit and proceeded to the trial of the suit on the merits and finally upheld the decree of lower Court and dismissed the appeal.

(2.) In this appeal we are asked to hold that the order passed by the lower Appellate Court refusing permission to the plaintiff to withdraw the suit is bad in law and that the plaintiff ought to have been allowed to withdraw the suit with liberty to bring a fresh suit on the ground that the suit was bound to fail by reason of certain defects within the meaning of Order 23, Rule 1.

(3.) The first point that arises for consideration is whether this prayer was properly made in the lower Appellate Court. The Bombay High Court has adopted the view that Order 23, Rule 1 applies only when the case is before the trial Court; but after it has been perfected into a decree the plaintiff loses his right for applying for withdrawal of the suit. But this Court has also in appeals given such permission under Order 23, Civil Procedure Code, but generally, in a case where, as has bean pointed out by the Madras High Court in the case of Kamuyya v. Papayya (1916) 40 Mad. 259, the appellate Court discovers that the suit ought to fail on the ground of soma formal defect and by reason of such discovery it is of) opinion that the decree of the trial Court ought to be reversed. The defects which the learned advocate now appearing for the appellant says are formal and should form a ground for withdrawal of the suit) are the objections which were taken in the written statement and made the subject of issues in the first Court. The plaintiff being aware of those defects went to trial and fought the case out with a view to pursuade the Court to hold that the defects which were pointed out did not exist. Having failed there it does not lie in his mouth at the appellate stage to say that they were really forma defects and because they ware so the lower Appellate Court should have given him permission to withdraw from the suit. We do not like to lend support to the course sought to be adopted by the plaintiff.