Reaz Uddin and Others vs Mir Sajid Husain and Another

Sinha, J.—This is a civil revision u/s 115, Civil P.C., and directed against an order of the learned District Judge of Ghazipur by which he permitted a suit to be withdrawn with liberty to bring a fresh suit.

An application for redemption of three mortgages was made by the opposite party in the Court of the Assistant Collector, 1st class, of Ghazipur u/s 12, Agriculturists'' Relief Act.

The defence in the main was a denial of the execution of two and the bar of limitation with respect to the third.

The learned Assistant Collector decreed the suit by his judgment of 19th September 1941.

Against this an appeal was preferred by the defendants.

It appears that there were certain lacunae in the plaintiffs'' case which came to light in the course of the arguments in appeal and the plaintiffs, therefore, made an application to the learned Judge for permission to withdraw the suit with liberty to bring a fresh suit. He allowed this application by the following order:

Permitted to withdraw from the suit with permission to bring a fresh suit. Appellants opposite parties shall get their full costs of both the Courts.

This order is assailed before me by the defendants. It is argued that the Court must, in passing an order under Order 23, Rule 1, give sufficient indications that it had applied its mind to the case. To put it in another form, the order must be a self-contained order in that it must contain the facts, in sufficient detail, to enable a Court to know the case of the parties, the lacuna which is the immediate cause of the application for withdrawal and the reasons of the learned Judge for holding that a case within the meaning of Order 23, Rule 1, Civil P.C., has been made out. These tests have not been answered by the learned District Judge and I think this is a fit case in which, in the exercise of my jurisdiction, I should set aside this order.

The principle which I have enuniciated is supported by the case in B. Raghubir Das Vs. B. Sital Prasad and Others, , Kendal J., in that case has examined the question in sufficient detail and I respectfully agree with what has fallen from his Lordship.

I, therefore, allow the application, set aside the order passed by the lower appellate Court, and direct that the appeal be admitted now to its original number and be disposed of according to law.