Puranmal Agarwalla and Others vs Rautmal Pincha

Ram Labhaya, J.—This petition of revision is directed against an order of the Munsiff of Jorhat allowing plaintiff to withdraw the suit with permission to sue afresh on the same cause of action. On behalf of the defendant it is contended that the order is vitiated by a materially irregular exercise of jurisdiction.

The petition for withdrawal embodied the allegation that the property in suit had not been correctly described. The learned Munsiff in his order stated that the plaintiff wanted to withdraw with liberty to file a fresh suit on account of some formal defect in the description of the land shown in the schedule attached to the plaint. After stating the plaintiff''s case on the point he ordered as follows:--"The plaintiff is allowed to withdraw the suit with permission to sue afresh if not otherwise barred." The learned Munsiff has given no reason in support of his order. Under Order 23, Rule 1 he could allow withdrawal of the suit if he felt satisfied that suit would fail by reason of some formal defect or that there were other sufficient grounds for allowing the plaintiff to institute a fresh suit. He has not given any reasons for his satisfaction. He has not stated that the suit would fail by reason of some formal defect or that there was any other sufficient ground for allowing withdrawal of the suit with permission to bring a fresh suit. In T.K. Abdul Razack Ravuthar and Others Vs. Mahammad Hanif Sahib and Another, it was held that

"Where an application for withdrawal of a suit under Order 23, Rule 1 (2) is granted, it is imperative for the Court to give reasons for its order. Failure to state them amounts to a material irregularity in exercising jurisdiction."

The learned Judge relied on Kamta Singh Vs. Bhagwan Das and Others, in support of this proposition. This case is fully covered by this authority. The order, therefore, is vitiated by a material irregularity committed in the exercise of its jurisdiction by the Court below and ought to be set aside on this ground alone.

It is also worthy of note that the application for withdrawal was based only on the statement that there was some mistake in the description of the property in suit. Such a defect could easily be cured by amendment and this aspect of the matter also should have been considered. The record also does not show that the order was passed in the presence of or after hearing the defendants.

Mr. Barua, the learned counsel for the Opposite Party has tried to support the order. Relying on Jhunku Lal v. Bisheshar Das 40 ALL. 612 , he has contended that a wrong exercise of discretion in granting the application did not attract the revisional jurisdiction of this Court. This may be a correct proposition but in this case there does not appear to have been any exercise of judicial discretion. Besides, the failure on the part of the Court to give any reasons amounts to a material irregularity which is fatal to the order. Syed Sadeq Reza Vs. Nawab Asaf Kader Syed, which is another case on which Mr. Barua has relied, also does not help him. It is distinguishable on facts. The view expressed in this case was that in order to induce the High Court to interfere in revision with matters mostly within the discretion of the trial Court it is necessary that it should be perfectly satisfied that the order was not supported by any consideration of justice or by any provision of law. The present case is, in my opinion, within the ambit of the rule laid down in this case.

The petition of revision is allowed. The order is set aside. The case shall be remanded to the trial Court for fresh disposal of the application according to law in the light of the observations made above after due notice to the defendant. The cost of the petition will abide the result of the application.