Subban Chetty and Others vs Latchmi Ammal

Munro, J.—The plaintiffs applied u/s 373, Civil Procedure Code, to withdraw their suit with permission to bring a fresh suit. The proper

order on such an application was either an order refusing it or an order in the terms as prayed for. The District Munsif, however, passed an order

to the effect that he allowed the withdrawal, but did not grant permission to bring a fresh suit. This is not, in my opinion, an order which he was

competent to pass on the petition presented to him. The District Munsif then proceeded to judgment and said that the plaintiffs had applied to

withdraw, that they had been allowed to do so, that permission to bring a fresh suit was not granted and that plaintiffs should pay the costs. It does

not appear-and it is not alleged before me--that before passing judgment the District Munsif informed the plaintiffs of the way in which he

proposed to deal with their application to withdraw. If the District Munsif had done so and the plaintiffs had then said that they would withdraw in

any case, then there would be no reason to interfere. But the plaintiffs are certainly entitled to have had the option given to them either to go on

with the suit or to withdraw unconditionally. The order of the District Munsif is set aside and he is directed to dispose of the suit according to law.

Costs will abide the event.