P KRISHNASWAMI PILLAI Vs. DORAISAMI AMMAL

JUDGEMENT

(1.) In this case the Full Bench of the Small Cause Court Madras gave permission to the plaintiff who had obtained a decree in a trial before a single Judge to withdraw the suit to enable him to add his claim to a suit previously instituted by him in the District Munsif s Court Poonamallee to avoid the bar of Order II, Rule 2 of the Code of Civil Procedure. The objection to the maintainability of the suit under this particular provision of law appears to have been taken before the Full Bench though a plea of is pendens was raised before the Trial Judge.

(2.) The defendant applies in revision to this Court to discharge the order on two grounds (1) That the Full Bench was exercising appellate jurisdiction and was not competent to allow the withdrawal of the suit (2) The permission to withdraw can only be given to enable the plaintiff to bring a fresh suit and not to add the claim to a previously instituted suit.

(3.) On the first point Lodd Govindass v. Rukmani Bhai 21 Ind. Cas. 302 : 14 K.L.T. 310 : I.L.W. 529 : 38 N. 438, decided by Miller and Sankaran Nair JJ., is authority for the position that the Full Bench exercising jurisdiction under Section 38 of the Presidency Small Cause Courts Act is not a Court of Appeal and there is no need therefore to decide the question as to the power of a Court of Appeal to allow a withdrawal of the suit on which there is a conflict of authority.