Suggi Lal Durji and Others vs Sheikh Mohammad Wali Ullah and Others

Adami, J.—This is an application u/s 115 of the CPC and Section 107 of the Government of India Act. The petitioner instituted a suit in the Court of the Munsif at Sewan (No. 471 of 1916) for a declaration that the deed of sale of the 13th June 1916 executed by the opposite party No. 1 in favour of the opposite party Nos. 2, 3 and 4 in respect of a house was null and void, and that on the 9th June 1916 the petitioner contracted with the opposite party No. 1 for the purchase of the house, and for specific performance of the contract. On the 1st September 1917 the petitioner applied to the Munsif to be allowed to withdraw the suit with liberty to institute a fresh one on the ground of defeats in the plaint and on the ground that material witnesses had not been summoned. The Munsif granted the permission and then the opposite party Nos. 3 and 4 applied to the High Court in Civil Revision No. 305 of 1917 [Mahendra Ram v. Singi Lal 48 Ind. Cas. 197 : 3 P.L.J. 651 ] to set aside the Munsif''s order. The case was remanded to the lower Court and the Munsif was directed to pay attention to Order XXIII, rule 1, of the Code and to come to a decision whether or not permission should be granted on the grounds mentioned in rule 1 of Order XXIII.

On the 27th January 1919 the Munsif refused permission to the plaintiff to withdraw his suit and to institute a fresh suit. This order of refusal is entered on the order-sheet and it runs: "He is allowed to withdraw from the suit without any permission for a fresh suit on the same cause of action." On the 13th February 1919 the petitioner applied to the Munsif that the Original Suit No. 471 of 1916 should be proceeded with, since no permission had been granted to him to file a fresh suit, and on the 14th February the Munsif passed an order on the application to the effect that the suit had already been disposed of and so the application must be rejected. As a matter of fact after the order of the 27th January 1919 had been passed, a decree had been drawn up in the suit and had been signed by the Pleaders of both parties.

It is now contended here that when the plaintiff petitioner asked to be allowed to withdraw with permission to institute a fresh suit, this did not amount to a willingness on his part to withdraw without that permission.

The learned Vakil for the petitioner has relied chiefly on the case of Suradhani Debya v. Chandra Nath Pramanik 37 lnd. Cas. 131 : 20 C.W.N. 1011, where it was held that where a plaintiff doss not desire to withdraw from the suit unless with liberty to bring a fresh suit and the Court considers that that liberty ought not to be granted, the proper course is simply to dismiss the application. There is no doubt, I think, that in this case under the circumstances the Munsif rightly refused the prayer to withdraw with permission to institute a fresh suit, bat I do not take it that when such an application as was made by the petitioner is refused, a Court is entitled to understand that a refusal of a part of the prayer amounts to an allowance of the rest, or that the petitioner himself meant that, if he could not get one part of his prayer, he was content to take the rest. Ordinarily an application to withdraw with permission in no way means an application to withdraw if such permission will not be granted. In the present case I am of opinion that the Munsif would, if at the time he passed the order refusing the petition he thought that the petitioner meant to withdraw the suit even without permission, have stated this on the order sheet and would then and there have entered the case as withdrawn. There is no final order on the order-sheet at all in support of this, and it seems to me that the Munsif should have noted on the order-sheet that the plaintiff not having been ready to adduce further evidence the suit must be dismissed. The petitioner certainly has throughout shown a degree of negligence in the preparation and conduct of his suit which does not entitle him to much consideration, but I consider that the lower Court was mistaken in believing that the petitioner meant to withdraw his suit whether his prayer was granted or not. I would thus allow the application and order that the petitioner do pay two gold mohurs as costs to the opposite party. The suit will accordingly be remanded to the lower Court to its original number to be proceeded with from the stage at which it was on the 27th January 1919.