Pirbhu Lal vs Genda Mal and Another

John Edge, Kt., C.J. and Banerji, J.—This is an appeal brought by the defendants in the suit u/s 10, of the Letters Patent. In the Court of the Munsif the plaintiff asked permission to withdraw from the suit with liberty to bring a fresh suit. The Munsif declined to give such permission, and finally made a decree dismissing the suit. The plaintiff appealed from that decree, and in the Court of first appeal he urged that there were sufficient grounds for the granting of permission to him to withdraw the suit with liberty to bring a fresh suit. The Judge of the Court of first appeal, holding that view, gave permission u/s 373 of Act No. XIV of 1882, to the plaintiff to withdraw the suit with liberty to bring a fresh suit, and stated that the result would be that the decree of the Munsif would be set aside. That order was within the power of the Court of first appeal by reason of Section 582 of the Code. From that order granting permission the defendants appealed to this Court. The appeal lay to a single Judge, and our brother BLAIR, holding that no appeal lay from an order u/s 373 of Act No. XIV of 1882, dismissed the appeal. From that decree of our brother Blair the defendants have brought this appeal. Mr. Simeon, for the appellants, has relied upon the decision of Mr. Justice Straight in Ganga Ram v. Data Ram ILR All 82 which case was very similar to the present, there having been there a decision by the first Court and permission granted u/s 373 by the first appellate Court. On the other hand Mr. Viddya Charan Singh relies upon the decision of Mr. Justice Oldfield and Mr. Justice Brodhurst in Kalian Singh v. Lekhraj Singh ILR All 211 the decision of our brother Burkitt in Jagdesh Chaudhri v. Tulshi Chaudhri ILR All 19 the decision of our brother Aikman in Zahun v. Dina Nath Weekly Notes for 1893, p. 204, and the decision of Mr. Justice Trevelyan and Mr. Justice G. Banerji, in the case of Jagodindro Nath v. Sarat Sunduri Debt ILR Cal 322. In support of the appeal there is merely the decision of Mr. Justice Straight. In the case in which he expressed that opinion Mr. Justice Tyrrell, who was sitting with him, expressed no opinion on the point. There are thus in support of the contrary view the decisions of Mr. Justice Oldfield, Mr. Justice Brodhurst, Mr. Justice Trevelyan, Mr. Justice G. Banerji, Mr. Justice Burkitt, Mr. Justice Aikman and the decision at present under appeal of Mr. Justice Blair. The balance of authority is certainly in favor of the respondent. When permission is given u/s 373 there is no formal or other expression of an adjudication upon any right claimed or defence set up, and such a permission does not decide the suit, or, if the permission be given in the course of an appeal, the appeal or the suit. Consequently, the order giving permission is not a decree as defined in Section 2 of Act No. XIV of 1882. It is, however, an order granting permission, but it is not one of the orders which is appealable u/s 588 of the same Act. When an order is made u/s 373 in the course of an appeal permitting the plaintiff to withdraw the suit with liberty to bring a fresh suit, it decides nothing as to the merits of the decree of the first Court, but it merely wipes out that dercre by reason of the suit being withdrawn. We dismiss this appeal with costs.