Nathji and Another vs Languria and Another

Boys, J.—The facts here are practically admitted and certainly they cannot be denied. The plaintiffs asked to bet allowed to withdraw their suit in terms of order 23, Rule 1(2), C.P.C. The learned Munsif refused to allow them to withdraw the suit with permission to bring a fresh suit and apparently was quite justified in that refusal. But then instead of merely refusing the plaintiff''s request or giving them any further option in the matter the learned Munsif treated the application as if it were alternatively under Rule 1, Sub-section 1 and granting the application as if it had been an unconditional or unqualified application to withdraw, ordered that the suit be allowed to be withdrawn, coupled with refusal of permission to file a fresh suit. It is clear that there is no justification for this. If the learned Munsif saw no reason for allowing the withdrawal in terms of Order 23, Rule 1 Sub-section 2, he should simply have refused the application and proceeded with the suit; or give the plaintiff an opportunity of accepting or refusing an unconditional withdrawal. I set aside the order of the Munsif dated the 15th of March, 1924, and remand the case to his Court with the direction that he should proceed to decide the case on the merits,, Costs will abide the result.