HASAN ALI Vs. LACHMAN PRASAD

JUDGEMENT

(1.) The objection raised by the opposite parties (plaintiffs) is that no application for revision lies. The plaintiffs sued in the Court of the Munsif of Gorakhpur for recovery of possession of a certain portion of a market. After the proceedings had advanced, an application was put in by the plaintiffs for withdrawal of the suit. No specific grounds were mentioned in the application, but it was generally observed that there were some legal defects which would lead to the dismissal of the suit. On the presentation of this application there must have been some argument before the lower Court, because the lower Court gives a specific reason for granting the application for withdrawal. The statement in the order is: The fact is that during the excavations of the bazar in suit some signs alleged before by the plaintiffs were found; they showed that the plaintiffs claim was defective.

(2.) It is most likely that during the pendency of the suit some excavations were made which brought to light further evidence modifying or supporting the plaintiffs suit. It was at the discretion of the lower Court to grant permission for the withdrawal of a suit under Order 23, Rule 1, Civil P.C. The jurisdiction existed and the question is whether the jurisdiction was exercised illegally or with material irregularity to bring the order within the provisions of Section 115, Civil P.C.

(3.) A Bench ruling of this Court in the case of Jhunku Lal V/s. Bisheshar Das [1918] 40 All. 612 laid down that, where the Court had jurisdiction to grant leave to the plaintiffs to bring a fresh suit, 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. The applicants learned Counsel Mr. Aziz produced before me two rulings where a single Judge had distinguished the cases before him from the circumstances of the case reported as Jhunku Lal V/s. Bisheshar Das [1918] 40 All. 612. He made a commendable research and also discovered an unreported decision of a Bench of this Court in Civil Revision No. 77 of 1926 to which I was a party. I have examined all those cases and am satisfied that there were points in them to distinguish them from the Bench ruling in Jhunku Lal V/s. Bisheshar Lal [1918] 40 All. 612. The case before me and Mr. Justice Pullan was one out of the common, where we obtained the impression from the record that the learned Judge who granted permission of withdrawal desired to get rid of the suit which was a troublesome one. There are no such circumstances present in the revision application before me. As far as possible I must conform to the principles laid down in Jhunku Lal V/s. Bisheshar Lal [1918] 40 All. 612, and if I do so, I can see no reason for admitting this application for revision. It may be that the defendants suffer by the withdrawal, and that the discretion was wrongly exercised by the lower Court. This Court has repeatedly requested Subordinate Courts not to grant applications for withdrawal light-heartedly. I do not, however, feel justified in admitting this revision and dismiss it, but make no order as to costs.