D.K. Mahajan, J. - (1.) THIS petition for revision is directed against the order of the Additional District Judge, Hissar, permitting withdrawal of the suit at the stage of appeal with liberty to file a fresh suit.
(2.) IN a contest in the trial Court, the plaintiff's suit was dismissed. The plaintiff preferred an appeal to the Court of the District Judge which was heard by the 'Additional District Judge; and instead of disposing the appeal on merits, a short circuit was adopted; and the appeal was concluded by giving permission to the appellant to withdraw the suit with liberty to file a fresh suit. This sort of practice has to be deprecated. No reasons have been recorded for the withdrawal of the suit; and the order of the learned Judge is entirely perfunctory. The statement of the counsel for the plaintiff, on the basis of which the suit was withdrawn, may be set out to demonstrate, how casually the provisions of Order 23, Rule 1, Civil Procedure Code, have been used. The statement is as follows: The plaintiff -appellant, because of ignorance, could not avail of the material evidence during the trial of the suit. There he stands prejudiced, as the case could not be decided without that evidence. In the circumstances, the plaintiff appellant may be allowed to withdraw the suit with permission to file a fresh suit on the same cause of action. This request was opposed by the counsel for the respondent. It appears from the statement of the counsel for the plaintiff that it is not indicated on what matters, the plaintiff was ignorant and what evidence he wished to produce, which could not be produced; and for what reasons. Moreover, if there was any defect, which had to be cured, it could be cured either by allowing amendment of the plaint or by a remand. The course adopted by the learned Judge is totally unjustified. This sort of practice was deprecated by me in Badam v. Smt. Lakhpati, (1967) 69 P.L.R. 554. The rule in allowing withdrawal in appeals has been stated by Page J. in Ram Saran Mandal and anothers v. Radhu Raman Mandal : A.I.R. 1929 Cal. 88. as follows: It is not intended or contemplated by O. 23 R. 1, that after a suit has been tried and dismissed on the merits, the plaintiff should be permitted to withdraw in appeal from the suit and to start proceedings all over again, against the successful defendants merely because there was also a formal defect in the frame of the suit". In Eleavarthi Nadipatha alias Ramaswami Raju and others v. Elavarthi Pedda Venkataraju : A.I.R. 1966 Mad. 346, Mr. Justice Natesan has observed as follows: The appellant court should be slow and cautious to exercise the powers under 0. 23, R. 1 and permit a defeated plaintiff to withdraw his suit with liberty to file a fresh suit and re -agitate the matter over once again. When the defect, if any, could be cured by an amendment, the court should not ordinarily permit the withdrawal of suit with liberty to institute a fresh suit. It appears to me that in the present case, the provisions of Order 23, rule 1, Civil Procedure Code, have been totally misused.
(3.) I accordingly allow this petition; quash the order of the learned Additional District Judge and remit the appeal to him for decision on merits. The costs will abid the event. The parties are directed to appear in the lower appellate Court on the 3rd March, 1969.;