- (1.) This is a revision filed on behalf of the Defendant. It arises out of a suit for partition filed by the Plaintiff in respect of a house alleged by him to be ancestral, and for a declaration that the mortgage deed executed by his father was invalid and unenforceable. The Plaintiff impleaded his father and the creditors in the suit. The suit was filed in the year 1946. The Plaintiff presented an application in the trial court for the withdrawal of the suit on 27-7-1953, that is, seven years after the filing of the suit. On the same date the court passed the following order on that application: The suit is allowed to be withdrawn and the permission to file fresh suit on the same cause of action is granted provided Defendants are paid their costs within six months.
(2.) Dissatisfied with the above order, this revision has been filed by Defendant No. 5 who was one of the creditors.
(3.) On behalf of the applicant, it is contended that the order passed by the trial, court does not disclose the grounds on which the application was allowed. It does not show that the court has applied its mind to the facts of the case. Under the Code of Civil Procedure, a suit can be allowed to be withdrawn under Order 23, Rule 1 which runs as follows: 1. (i) At any time after the institution of a suit the Plaintiff may, as against all or any of the Defendants, withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the Plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. it may, on such terms as it thinks fit, grant the Plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim". (3) and (4) omitted.;