RAMJI Vs. ANJANIPRASAD

JUDGEMENT

(1.) THIS suit is based on a pronote dated 21st April 1924. The defendant contended that this had been renewed by another note dated 28th July 1925 and was therefore cancelled. The latter note he also contended, had been paid off and he produced it. The plaintiff stated that the second note of 1925was not genuine but when examined as a wiitnses he said that his claim was based on the note of 1925 and not on that of 1924. He then applied for withdrawal of the suit, and the lower Court holding that there was a formal defect in it permitted it to be with drawn.

(2.) IN my opinion the lower Court is wrong. Under Order 23, R. 1, Civil P.C., the words "formal defect" refer to cases of misjoinder either of parties or matters in contest in the suit, or to cases in which a material document has been rejected because it has not borne a proper stamp, and to cases in which there has been erroneous valuation of the subject of the suit. Those are cases which fail by reason of some point of form, but where the plaintiff comes into Court contending that his claim is based on a particular note of hand and after evidence has been recorded, finds that it is not based on that but based on another note altogether, it can hardly be said to be a "formal defect." It was held in Jhunku Lal v. Bisheshar Das [1918] 40 All. 612 that a Court ought to be very slow to give liberty to bring a fresh suit after a case has been heard out on the merits. In the present case the plaintiff seeks to recover a sum of money upon certain allegations which are admittedly untrue, and in a case like this I do not think he should be allowed to withdraw. It was held by Batten, O.J.C., in Singhai Rajilal v. Kanhai A.I.R. 1922 Nag. 84 that the object of Rule 1 (2), Order 23, Civil P.C., 1908, is not to enable a plaintiff, after he has failed to conduct his suit with proper care and diligence and after his witnesses have failed to support his case, to obtain an opportunity of commencing the trial afresh in order to avoid the result of his previous misconduct of the case and So to prejudice the opposite party.

(3.) I set aside the order permitting the plaintiff to withdraw the suit with permission to bring a fresh suit and dismiss the present suit with costs. The plaintiff will pay the defendant's costs both in the Small Cause Court and here. I fix pleader's fees at Rs. 15.