BUDHAN Vs. KORHEY

JUDGEMENT

(1.) This is an application in civil revision by the defendants against an order under Order 23, Rule 1 by a Munsif allowing the plaintiff to withdraw his suit with permission to file it afresh. The first point which was argued was whether this Court can interfere in revision with an order of that nature. For the opposite party reference was made to Jhunku Lal V/s. Bisheshar Das 1918 All. 418, where a Bench of this Court held in the year 1918 that the trial Court had jurisdiction to grant, leave to the plaintiffs to bring a fresh suit, and the fact that the Court may have exercised, and probably did exercise, a wrong discretion in granting the plaintiffs application was not Sufficient to bring the case within the purview of Section 115, Civil P.C. In that case the trial Court had held that it was necessary for the plaintiffs to give formal proof of a certain plaint and the evidence in the case had concluded and the stage of argument had been reached. One learned Judge held: It was for the Munsif to say whether or not there were other sufficient grounds in the present case...however this may be, it seems to be that even if the Munsif be taken to have made a mistake in law, we nevertheless are not entitled to interfere in revision, and the other learned Judge stated: It cannot be said that the Court below exercised a jurisdiction which was not vested in it by law. In the exercise of the jurisdiction which it undoubtedly had it. may have committed an error, and apparently it did commit an error in the present case; but that alone would not justify this Court in interfering under Section 115.

(2.) This ruling was followed In 1927 by a learned Single Judge of this Court Dalai, J., in Hasan Ali V/s. Lachman Prasad 1927 All. 750. On the other hand in Kamta Singh V/s. Bhagwan Das 1928 All. 98, there was a consideration of this question by a Bench of this Court and the Bench held that for a Court to invoke Order 23, Rule 1, without giving any reason amounts to a material irregularity in exercising the jurisdiction given to it by that rule. In Ganga Prasad V/s. Kishni 1925 All. 466, there is a ruling by a learned Single Judge of this Court Daniels, J., in which he held that where a Court allowed the plaintiff to withdraw his plaint under Order 23, Rule 1, Civil P.C. without applying his mind to the circumstances of the case and without any valid reason, the Court acted with material irregularity and its order was open to revision. In. this case the learned Judge considered the ruling reported in Jhunku Lal V/s. Bisheshar Das 1918 All. 418, and distinguished it and also considered a later ruling reported in Rahmat Ullah V/s. Dharam Singh 1922 All. 185, in which one of the learned Judges, B.anerji, J., who had taken part in the ruling of Jhunku Lal V/s. Bisheshar Das 1918 All. 418, allowed an application for revision in circumstances similar to the case in Ganga Prasad V/s. Kishni 1925 All. 466. In 1927 Baijnath Pande V/s. Babban Pande 1927 All. 522, Ashworth, J., held that the High Court could interfere in revision with an order under Order 23, Rule 1 in which the reasons had not been set out. In Chandrika Lal V/s. Sami Nath 1929 All. 133, Weir, J., followed the decision in Jhunku Lal V/s. Bisheshar Das 1918 All. 418, but he also referred to Baijnath Pande V/s. Babban Pande 1927 All. 1522, as a case in which interference I could be made in revision. The latest I ruling on the subject to which reference has been made is Jumma V/s. Ram Sahai 1934 All. 137, in which a learned Single Judge of this Court, Kendall, J., held that where the trial Court had made an order under Order 23, Rule 1, without exercising its discretion judicially, that is without applying its mind to the matter before it with due reference to the provisions of the order then this Court could interfere in revision. In that case the Munsif had given certain reasons which amounted to this: that there was a part of the defendant's case for which the plaintiff was not prepared and therefore the Court believed that the plaintiff had been prejudiced. I consider that I should follow this latest ruling and see whether the Munsif did apply his mind to the matter before him in the present suit.

(3.) Now, the order which the Munsif has made is extremely confused. He sets out that the plaintiff has brought a suit for injunction to prevent the defendants from interfering with the plaintiff's right and possession of a chabutra with an alternative relief for possession; that plaintiffs claimed as owners of the chabutra and alleged that defendants want to build on it; that the defendants denied plaintiffs title and pleaded that the chabutra belonged to the zamindar and the defendants have obtained it from the zamindar and that the plaintiffs have not been in possession for 12 years as the zamindar obtained a decree against their father Chotey. The first issue framed was whether the plaintiffs are owners of the chabutra in suit and further issues followed in regard to limitation and res judicata. The Munsif stated: I agree that to make it a ground for an attack plaintiffs have not only to allege a pedigree but also to establish boundaries, of suit land after alleging same in the plaint. The, evidence on point of pedigree at least is ignorable for defects in pleadings and that jeopardizes plaintiffs claim. It is apparent that a bona fide dispute existed on point of title and I will allow plaintiffs an opportunity to establish their claim by coming to Court in proper form. As such I allow the case to be withdrawn with permission; to file it afresh.