Patna High Court
Mahendra Ram And Anr. vs Singi Lal And Ors. on 23 October, 1918
Equivalent citations: 48IND. CAS.197, AIR 1918 PATNA 261
JUDGMENT
1. The order against which this application is made, purports to have been made under Order XXIII, Rule 1. The facts upon which it was passed do not appear in the petition asking to withdraw the suit, but are stated to have been ascertained orally from the Pleader in charge of the plaintiff's case. They were, firstly, that the plaintiff's father had not been made a party to the suit; and secondly, that the defendant's brother had not been made a party to the suit. In the affidavit filed in support of the application it appears that the defendant denied that he has a brother at all, and it is argued by the learned Vakil for the applicant that the plaintiff's father had nothing to do with the contract upon which the suit was brought and was not a necessary party to the suit at all. We wish to draw particular attention to the imperative nature of the rule under which the Munsif purported to act. A suit may only be withdrawn with permission to bring a fresh suit when the Court is satisfied that the suit must fail for reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. The sufficient grounds contemplated in the second clause should be grounds closely analogous to the grounds given in the first clause. We feel strongly that the Courts below are far too prone to allow suits to be withdrawn when they are more than a year old, so that the withdrawal of them from the file will improve the look of the file. The Munsif in the case before us does not appear to have been satisfied that the suit must fail. He was merely vaguely of opinion that the defect of parties might materially affect the decision. This was not a sufficient reason for giving the permission asked for. We are of opinion that in making the order against which this application has been made, the learned Munsif failed to exercise the jurisdiction which was vested in him by law to make a serious enquiry as to whether the suit must fail for defect of parties or not. We, therefore, remind the case to him and direct that he devote his attention strictly to the wording of, the rule and that before granting permission to bring a fresh suit, he satisfy himself that the suit must fail by reason of a defect in it, We would draw the attention of other Courts to this decision, for we are of opinion, as we have already stated, that a great deal of laxity prevails with regard to the manner in which these applications to withdraw with permission to bring fresh suits are granted. Costs will follow the result. The hearing fee of this Court is two gold mohurs.