MAHABIR PRASAD Vs. MOHAMMAD ALI KHAN

JUDGEMENT

(1.) This is an application in revision under Section 115, Civil P.C., against an order of the Additional Subordinate Judge of Jaunpur allowing the plaintiffs- respondents to withdraw a suit decided against them by the Munsif of Shahganj (Jaunpur) under Order 23, Rule 1(2).

(2.) The plaintiffs brought a suit to redeem a certain mortgage. It was dismissed by the trial Court on the ground that Bipat from whom the plaintiffs purchased the equity of redemption was no relation or successor-in-interest of the original mortgagor Jhagru. The plaintiffs set up relationship between Bipat and Jhagru through one Biru, alleged to be the great-grand-father of Jhagru and the great- great-grandfather of Bipat. The Munsif, after a careful judgment, held that no relationship was proved between Bipat and Jhagru. The plaintiffs appealed to the Subordinate Judge of Jaunpur. One of the grounds of appeal was that the trial Court had failed to take into consideration certain documents filed by the plaintiffs. The lower appellate Court passed an order in respect of one document that the lower Court had rightly refused to take it into consideration, because the plaintiff's had failed to prove it. The plaintiffs-appellants then put in an application for permission to withdraw the suit with liberty to bring another on the ground that their failure to prove this document was due to a mistaken belief that the defendants pleader had admitted the document. They also alleged that a certain name entered in the pedigree attached to the plaint was blurred, and the lower Court had misread it. They appear to have suggested that if allowed to bring a fresh suit they could properly prove the document which they had failed to prove and could put in a clearly-written pedigree.

(3.) The Subordinate Judge, without giving any reason for exercising his discretion under Order 23, Rule 1(2), wrote an order as follows: Cause sufficient. The plaintiff-appellant is allowed to withdraw the suit with liberty to bring a fresh suit on the same cause of action.