MD. BADRUDDIN MORAL Vs. SANTOSH KUMAR SEN

JUDGEMENT

(1.) This is a plaintiffs' appeal by leave. The question raised is whether the High Court Division was justified in summarily rejecting the appellant's revisional application against the order of the Munsif, Debhata Upazila in Title Suit No. 8 of 1985 refusing permission to withdraw the said suit with liberty to sue afresh under Order XXIII, rule 1(2) of the Code of Civil Procedure.

(2.) The aforesaid suit was originally instituted in the court of Munsif, Saikhira being Title Suit, No. 143 of 1973 and on transfer to Debhata Upazila it was renumbered Title Suit No. 8/85. The suit was for declaration of Title and further that the S.A. Khatian was wrong. Some of the defendants filed written statement raising, amongst others, the plea of res-Judicata.

(3.) On the date of peremptory hearing of the suit (9.3.85) the plaintiffs filed a petition for withdrawing the suit with liberty to bring a fresh suit on the ground that there were defects in the schedule and parties and other formal defects in the plaint due to incorrect description given at the time of the drafting of the plaint and that the plaintiffs would suffer for such defects. The prayer was, however, rejected and the order upheld in revision by the High Court Division by the impugned order dated 1.4.85.