JUDGMENT
1. This rule is directed against an order of the Additional Subordinate Judge of Khulna passed under Order 23, Rule 1, Civil P.C. The order is in these terms:
Heard Pleaders; the appellants are permitted to withdraw the suit with liberty to bring a fresh suit. The respondent will get his costs of this appeal.
2. It is argued that this order is not justified by Order 23. Order 23. Rule 1, says that if the Court is satisfied that a suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit it may grant the plaintiff permission to withdraw from such a suit, with liberty to institute a fresh suit. The power given by the Code to the Court to give permission to withdraw a suit has to be governed by certain considerations and if it appears that those considerations were not present in a certain case it must be held that the order was passed without jurisdiction in its restricted sense that it exercised that power in the wrong exercise of jurisdiction or at any rate it was a material irregularity. It does not appear from the order of the Subordinate Judge that there was any formal defect or any other sufficient ground for giving permission. The application upon which this order was passed merely says that there are formal defects in the ease and that therefore permission should be granted. It does not even mention what those defects were. But the learned advocate for the opposite party has attempted to satisfy us that there are such defects in the case as to justify the order of the lower appellate Court. The suit was for recovery of land on the allegation that it was the khas land of the tenure-holder whose interest the plaintiff had purchased. The defence of the defendants who are raiyats was that it was included within these jotes and that the plaintiff was not entitled to recover khas possession thereof. The trial Court found that the land was included in the defendants’ jote and that it was not the khas land of the plaintiff’s vendor. On these findings the suit was disposed of. The Court tried other issues incidentally with regard to the plaintiff’s interest in the tenure. The Munsif says that he could not try the title in the suit as all the cosharers ware not parties. It seems to us that the real question was what was decided against the plaintiff and there is nothing to show that plaintiff would gain anything by availing of the permission to bring a fresh suit except by re-agitating the matter on new evidence. The permission with liberty to bring a fresh suit should not ordinarily be given so as to cause much harrassment to the opposite party. Such per-mission should only be given when the Court is satisfied that the defect is not for any fault of the plaintiff but for discovery of certain facts which renders the suit in its present shape so defective. This duty of looking at the case from this standpoint becomes more necessary if an application for withdrawal of a suit is presented in the lower appellate Court. After having lost a party cannot ordinarily be permitted to withdraw with liberty to bring a fresh suit unless the Court is absolutely satisfied that the failure of the plaintiff was due to certain defects which were not known to him at the time “of the institution or the trial of the suit. Though the order passed by the Court below cannot be said to be totally without jurisdiction in view of the Full Bench decision in the case of Hirday Nath Roy v Ram Chandra Barua Sarma [1920] 58 I.C. 806 (F. B.) there is no doubt that the order passed by the lower appellate Court is one which cannot be supported as the procedure adopted by that Court is vitiated by material irregularity.
3. We accordingly make the Rule absolute, set aside the order complained of and send the case back to the lower appellate Court to be decided on the merits. The petitioner is entitled to his costs of this rule which we assess at three gold mohurs.
