LALA PUNJUSHET Vs. MOTIRAM BUDHU

JUDGEMENT

(1.) This is an application under Section 115 of the Code, asking the Court to revise an order passed by the Second Class Subordinate Judge of Nandurbar in Suit No. 132 of 1923.

(2.) After several adjournments, the hearing was fixed for December 15, 1924, on which date the plaintiff-opponent presented an application to withdraw the suit with liberty to bring a fresh suit on the grounds that the plaint was not explicit; that the averments about fraud were not clear, and that there was no explicit assertion that the sale deed was in the nature of a mortgage; that though there was a prayer for accounts and instalments, proper stamp had not been paid and there was no issue about mortgage; and that, therefore, the suit was likely to be dismissed because the pleadings were vague and insufficient.

(3.) The applicants-defendants raised several objections to, the, withdrawal of the suit being allowed, viz., the plaintiff had already once amended the plaint but never claimed redemption; that though the plaintiff had alleged before the Mamlatdar that the sale was a mortgage, he had in the suit averred only fraud; that several adjournments had already been granted to the plaintiff; that the hearing had actually commenced, documents had been produced by the defendants and one witness had already been examined for the defendants; that the plaintiff's suit was not going to fail on a technical point; that the suit had been filed on April 7,1923, more than a year before the application, but in spite of defendants objection the Court allowed plaintiff to withdraw the suit with liberty to bring a fresh suit.