CHANDRIKA LAL Vs. SAMI NATH

JUDGEMENT

(1.) THIS is an application to review an order of the additional Subordinate Judge of Gorakhpur by which he granted to the respondents in this application permission to withdraw a suit which they had brought against the applicants, and granted them liberty to bring a fresh suit. The ground on which permission was granted was that the respondent had not put in evidence a mortgage decree under which they had purchased the land in suit. The learned Subordinate Judge ordered the respondents to pay the costs of the applicants. In the course of the argument I have been referred to several decisions. In my opinion I am bound by (and I shall follow) the decision of a two Judges Bench of this Court, namely, Jhunku Lal v. Bisheshar Das [1918] 40. All. 612. In that case the plaintiff was permitted to withdraw the suit and to bring a new suit, the ground being that he had failed to give formal proof of a document which was essential to his success. The only other case which I need notice is a decision of a Judge of this Court, Baij Nath Pande v. Babban Pande . In that case an order of the Judge granting the plaintiff permission to withdraw from a suit and to institute a fresh suit was set aside. The grounds on which the order was made were that the plaintiff had not produced sufficient evidence and that he thought that, if he had more time, he would be able to produce evidence which would counteract the documentary evidence produced by the defendant. That appears to me to be an entirely different case from the present. There is, in my opinion, a marked distinction between a case where a plaintiff wants to get time in order to produce a large body of fresh evidence to counteract evidence given by the defendant, i.e., where the plaintiff wants time to prepare what would be more or less a new case, and a case where, as here, and in Jhunku Lal V/s. Bisheshar Das [1918] 40. All. 612, a plaintiff merely wishes to give formal proof of a document. I, therefore, decline to interfere on revision, as I think that the Additional Subordinate Judge had jurisdiction to act as he did. The application is dismissed with costs.