JUDGMENT
Francis W. Maclean, C.J.
1. The only question which arises on this appeal is whether the suit is barred under the special limitation to be found in Section 335 of the Code of Civil Procedure, having regard to Article 11 of the second schedule to the Limitation Act. The whole question turns upon whether or not the Court inquired into the matter referred to in that section, so as to make the order which it passed under that section conclusive as against the present plaintiff unless he brought a suit within a year from the date of that order. What then we have to look at are the circumstances under which that order was made, and to ascertain whether or not any enquiry was held within the meaning of that section. It is a condition precedent, in my opinion, to passing an order under that section, so as to make it conclusive unless a suit is brought within a year, that the Court shall enquire into the matters of resistance, etc., and it is imperative under the language of the section that the Court should do so. Now, what happened on the present occasion was this. When the application came on for hearing, the petitioner applied to withdraw the petition for want of evidence; the opposite party was present but whether they objected or not we do not know; perhaps they objected. But the Court directed the application to be dismissed for default of prosecution, and made an order as to costs. The precise terms of the order are these:–“The petitioner applies to withdraw this petition for his want of evidence. The opposite party is present. Hence I direct that the application shall be dismissed for default of prosecution; and that the applicant shall be charged with costs of the opposite party; and its vakil fees Rs. 8 in all.” Upon the face of this order and the facts which are not challenged, it is clear to my mind, that there was no enquiry within the meaning of Section 335 and, if there were no such enquiry then, in my judgment, the order made was not conclusive, and the plaintiff has the ordinary period within which to bring his suit.
2. It is urged, however, that the case is concluded by two or three decisions of this Court. We are referred to a case, Bibi Aliman v. Dhakeshwar Pershad (1904) 1 C.L.J. 296 to the judgment of which I was a party. But that case has no immediate bearing upon the present; for in that case the Court found that an investigation was held by the Subordinate Judge as was evident from the order sheet of the orders passed by him; as pointed out in that case, the Judicial Committee had remarked in the case of Sardhari Lal v. Ambika Pershad (1888) I.L.B. 15 Calc. 521 that the Code does not prescribe the extent to which an investigation should go. There was an investigation in that case and therefore we held that the order was conclusive. The same view was taken in an earlier case: Kallar Singh v. Toril Mahton (1895) 1 C.W.N. 24. Then comes the case of Rahim Bux v. Abdul Kader (1904) I.L.R. 32 Calc. 587. But there again the Court held that the facts were such as to warrant it in saying that there had been an investigation and, that being so, the Court was right in saying that the order was conclusive, unless a suit was brought within a year from the date of the order. It is unnecessary to express any opinion as to whether the facts in that case were such as to justify the finding of the Court that there had been an investigation, because the facts in the present case are different.
3. For these reasons, I think that the view taken by both the lower Courts is correct, that the present suit is not barred by the special limitation of one year, and consequently this appeal must be dismissed with costs.
Geidt, J.
4. I agree.
