KAMTA SINGH Vs. BHAGWAN DAS

JUDGEMENT

(1.) This is an application in revision against an order of the Munsif of Jaunpur allowing the non-applicant to withdraw his suit with liberty to bring a fresh suit The order of the Munsif is impugned before us on the ground that the Munsif had no jurisdiction to permit the withdrawal of the suit with liberty to bring a fresh suit unless and until he had decided that there was a formal defect in the suit or some other sufficient ground. The order of the Munsif fails to mention the reason why he granted the plaintiff permission to withdraw the suit with liberty to bring a fresh suit. It is permissible, however, in this circumstance to refer to the application of the non-applicant. In that application two grounds were sat out. One was that the success of the suit depended upon proof of a fact which could only be proved by production of a certain cash book, whereas the applicant had only produced a ledger. The second ground was that there were other persons who were necessary parties to the suit. It is unnecessary to decide whether either of these facts would give the lower Court jurisdiction. It is sufficient to say that, in our opinion, the permission, as a matter of discretion, should not have been allowed on the grounds stated. We admit that if the lower Court has erred in the exercise of its discretion no application in revision would lie. But as the order of the lower Court does not set forth the reasons for giving the permission, it is possible that the lower Court considered that permission to withdraw with liberty to bring a fresh suit could be granted without any condition precedent rather than that it abused the discretion imposed on it by law. In any case we should hold that for a Court to invoke Order 23, Rule 1, without giving any reason, amounts to a material irregularity in exercising jurisdiction given to the Court by that rule.

(2.) In the circumstances, we consider it necessary to set aside the order of the lower Court and to direct the lower Court to proceed with the case from the point where the plaintiff had put in the application now impugned. The lower Court must reconsider that application and pass an order on it. If the Court is of the opinion that, notwithstanding the opinion expressed above, the application should be granted, it must set forth its reasons for holding that it should be granted, clearly stating whether it is by reason of a formal defect or by reason of some other sufficient cause. If the Court rejects the application, it will still be open to the Court to allow the plaintiff to add any necessary party and to produce any necessary evidence, provided of course that the Court gives reasons for allowing this and awards appropriate costs. This is not to be construed to mean that the Court must allow parties to be added or evidence to be produced. We are told that circumstances exist, such as the conclusion of the evidence on both sides and the conclusion of arguments, which would make such an order improper. It will be for the lower Court to consider this aspect of the matter.

(3.) Various decisions of this Court have been cited to us in the course of the hearing. We do not consider it necessary to examine them in detail. They appear to in merely to be authority for the proposition that provided a Court finds that the suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit, then in revision the exercise of the discretion of the Court cannot be questioned. In a case like the present one, where the lower Court has given no reasons, it will always be difficult to decide whether the order of the Court is based on an assumption of jurisdiction not vested in it by law, namely, to allow the suit to be withdrawn without satisfying the conditions of Order 23, Rule 1, or whether it is based on the discretion allowed by the rule. In such cases, then, the correct method seems to be to hold that the Court has exercised its jurisdiction irregularly in failing to record its reason for exercising that jurisdiction. At least this is the view which we take in the present case.