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Calcutta High Court
Mabulla Sardar And Ors. vs Hemangini Debi And Ors. on 25 February, 1910
Equivalent citations: 6 Ind Cas 629
Bench: L Jenkins, Doss


JUDGMENT

1. This is a Rule calling on the opposite party to show cause why the order of the Subordinate Judge, dated the 26th of July 1909, should not be set aside. That order purported to be made under Order XXIII, Rule 1, of the Civil Procedure Code, the Court granting the plaintiff permission to withdraw from the suit with liberty to institute a fresh suit on certain terms indicated in the order. This was an order passed by the Court in appeal after the plaintiff’s suit had been dismissed, and from the petition which has been placed before us it appears that that suit had been dismissed on the ground that there was no evidence on several matters. The decision in Kharda Co. v. Durga Charan 11 C.L.J. 45 :5 Ind. Cas. 187, shows that Clause (b) of Sub-rule (2) must be read in connection with Clause (a) and with the limitations Clause (a) suggests, and so reading it, it is clear that it is not within the jurisdiction of a Court of appeal to grant the permission on the terms which have been-approved by the Court in this case. In my opinion, this Rule should be made absolute.

2. The result will be that the order must be set aside, and the appeal must proceed.

3. The petitioner is entitled to his costs, hearing fee two gold mohurs.


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