T.K. Abdul Razack Ravuthar and Others vs Mahammad Hanif Sahib and Another

Happell, J.—The petitioners are the defendants in O.S. No. 64 of 1944 in the Court of the District Munsiff of Udumalpet. The petitioner in

the lower Court was permitted by the Court to withdraw that suit under the provisions of Order 23, Rule 1(2) of the Code of Civil Procedure. The

terms in which the order allowing the petitioner to withdraw his suit was passed were these : The District Munsiff first of all set out quite fully the

reasons given by the petitioner in support of his prayer for permission to withdraw the suit with liberty to file a fresh suit and then he gave, also

quite fully, the objections to this course put forward by the defendants; but, having set out the contentions of both the parties, he said nothing more

than "" petition allowed.

It is argued for the defendants-petitioners that it was imperative for the District Munsiff to have given reasons for his order. In my opinion the

contention is well-founded. The terms of Order 23, Rule 1(2) of the Code themselves make it clear that the Court must state either what the defect

is or what are the other sufficient grounds which have moved it to grant permission to withdraw from the suit with liberty to institute a fresh suit. I

have not been shown any authority of this Court on the subject but there is a decision of the Allabahad High Court in Kamta Singh v. Bhagwan

Das ILR (1927) All. 199, in which it was held that reasons for holding that an application under Order 23, Rule 1(2) of the Code should be

granted must be stated and that failure to state them amounted to a material irregularity in exercising jurisdiction.

This petition is, therefore, allowed. The order of the District Munsiff is set aside and the application is remanded for fresh disposal according to

law and in the light of the observations in this order. The costs of the petition will abide and follow the result of the application.