GANGA PRASAD Vs. MTKISHNI

JUDGEMENT

(1.) THIS is a revision against an order passed by a Mansif allowing a plaint to be withdrawn under Order 23, Rule 1 of the Civil P. C.. It is admitted that the order cannot be supported on the merits. The question is whether any revision lies. In Rahmat ullah V/s. Dharam Singh A.I.R. 1922 All. 185, Banerji, J. allowed an application in revision in precisely similar circumstances. The Bombay and Calcutta High Courts have taken the same view in Rajindra Lal V/s. Atal Bihari (1917) 44 Cal. 454 and Rai Kashibai V/s. Shidapa Anappa (1913) 37 Bom. 682. It is urged for the respondent that the same Judge who decided Rahmat Ullah v. Dharam Singh A.I.R. 1922 All. 185 was a member of a Bench which held that no revision lay in Jhunku Lal V/s. Bisheshar Das (1918) 40 All. 612. An examination of the two cases shows that they are not really contradictory. In Jhunku Lal v. Bisheshar Das (1918) 40 All. 612 the plaintiff based his application upon the fact that formal proof of a certain plaint had not been given. The Court had to consider whether this amounted to a sufficient cause within the meaning of Order 23, Rule 1. It applied its mind to the question and decided erroneously that it did. As the Court had applied its mind to a question which it had jurisdiction to decide, it was held that even though the decision was wrong no revision lay under Section 115 of the Civil P. C.. The facts here are different. The Court never applied its mind to the question at all. The plaintiff merely alleged that there was a formal defect in the plaint but did not specify what the defect was and, in fact, as is now admitted, there was no formal defect whatever. The learned Munsif in his judgment does not state what the formal defect is. He simply says in general terms "the frame of the suifi is bad". Under these circumstances the decision in Jhunku Lal V/s. Bisheshar Das (1918) 40 All. 612, is no bar to my holding, as I do hold, that the Munsif acted with material irregularity in allowing the suit to be withdrawn with liberty to file a fresh suit. I therefore set aside his order and direct him to restore the suit to his file and dispose of it according to law. If the plaintiff wishes to withdraw he must do so unconditionally. The respondents will have their costs of this revision.