Shamanandan Prasad vs Mulchand Ram

Coutts, J.—This is an application against an order of the Munsif of Sitamarih allowing the plaintiff to withdraw his suit without permission to file a fresh suit.

The facts are that the plaintiff prayed for permission to withdraw his suit with permission to bring a fresh suit, but the Munsif has simply allowed him to withdraw his suit and has refused him permission to bring a fresh suit. This is obviously a wrong order. The Munsif, if he thought that permission to file a fresh suit should not be granted, should have dismissed the application and have either heard the suit on the merits or have dismissed it for want of prosecution if the plaintiff refused to proceed. Instead of doing this, however, he has divided the petition into two parts and has attempted to treat the application as one under the first part of Order XXIII, rule 1, Clause (1). This he was clearly not entitled to do, and in this view I am supported by the decision in the case of Bhagwat Pershad v. Lachmi Pershad 10 Ind. Cas. 346, which is on all fours with the present case. The Munsif has clearly acted without jurisdiction, his order must be set aside and the suit remanded for re hearing on the merits or for dismissal in accordance with law. The petitioner is entitled to costs. Hearing fee one gold mohur.