Jagannath Sahu and Another vs Sheogobind Prasad

Kulwant Sahay, J.—This is in application in revision on behalf of the defendants against the order of the Munsif of Ranchi passed under Order 23, Rule 1, Clause (2) of the Civil P.C. granting the plaintiff permission to withdraw from the suit with liberty to institute a fresh suit in respect of the subject matter of the suit.

The learned Munsif has allowed the withdrawal on the ground that upon the case as made by the plaintiff in the plaint the suit could not succeed. The case made by the plaintiff in the plaint was that the property in dispute was the property of Mt. Jamuni, the maternal grandmother of the plaintiff and the plaintiff claimed the property as the assets of Mt. Jamuni claiming to be the hair of Mt. Jamuni. At the hearing of the suit the plaintiff wanted to adduce evidence to show that the property belonged to the husband of Mt. Jamuni and that the plaintiff inherited the property as the reversionary heir of the husband of the lady. The defendant objected to such evidence going in, on the ground that in the plaint he did not claim the property as the heir of Mt. Jamuni''s husband. The learned Munsif says that unless the plaintiff was the heir of Mt. Jamuni''s husband the suit would not be successful, because the defendants had produced a Will alleged to have been executed by Mt. Jamuni and had applied for Probate of the Will before the District Judge, and the question was pending before the District Judge. He accordingly gave the plaintiff permission to withdraw the suit. Now, under Order 23, Rule 1, the Court could allow a plaintiff permission to withdraw the suit with liberty to institute a fresh suit in respect of the same subject matter only when the suit is bound to fail by reason of some formal defect. Sub-clause (b) of Clause (2) of Rule 1, however gives the Court power to allow the withdrawal of a suit on other sufficient grounds. The other sufficient grounds, however, have been held by this Court to be grounds analogous to those provided for in Sub-clause (a). In my opinion, the Court had no jurisdiction to grant permission to withdraw the suit because upon the case as made in the plaint the plaintiff was bound to fail. There is nothing in the plaint or in the order of the Munsif from which it could be held that there was a formal defect or a defect of such a nature as would prevent the suit being properly tried. The fact that upon the case as made in the plaint the plaintiff could not succeed is no ground for allowing the plaintiff to withdraw from the suit with liberty to bring a fresh suit. The conditions under which a suit may be allowed to be withdrawn with permission to bring a fresh suit have been discussed by this Court in the case of Mahendra Ram and Another Vs. Singi Lal and Others, . In my opinion, the learned Munsif was wrong in the present case to allow the suit to be withdrawn with liberty to bring fresh suit.

The order of the Munsif must be sat aside, and the suit will proceed in the ordinary course. The petitioners are entitled to their costs, hearing fee one gold mohur.