1920 (5) TMI 2 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of an order for withdrawal of a suit with leave to institute a fresh suit under Order XXIII, Rule 1, Civil Procedure Code.
2. Competence of a fresh suit instituted upon such leave.
3. Authority of the Court trying the subsequent suit to question the jurisdiction of the Court which granted the withdrawal order.
4. Revisability of such an order under Section 115, Civil Procedure Code.

Issue-wise Detailed Analysis:

1. Validity of an order for withdrawal of a suit with leave to institute a fresh suit under Order XXIII, Rule 1, Civil Procedure Code:

The primary issue was whether an order for withdrawal of a suit with permission to file a fresh suit, made under Order XXIII, Rule 1, but on grounds not of the nature of "formal defeat," can be considered as made without jurisdiction and thus null and void. The Court analyzed the concept of jurisdiction, stating that it is the power of a Court to hear and determine a cause. Jurisdiction involves the authority to decide matters presented formally for decision. The Court emphasized that the existence of jurisdiction must be distinguished from its exercise. If a Court of competent jurisdiction makes an order, even if erroneous, it is not void but an exercise of jurisdiction. The Court concluded that such an order, even if made under circumstances not contemplated by the rule, is not null and void but an exercise of jurisdiction with material irregularity.

2. Competence of a fresh suit instituted upon such leave:

The Court held that a fresh suit instituted upon leave granted by an order under Order XXIII, Rule 1, is not incompetent. The Court clarified that the order, even if erroneous, is not void and remains operative between the parties until set aside in appropriate proceedings. Therefore, a fresh suit instituted based on such an order is valid and competent.

3. Authority of the Court trying the subsequent suit to question the jurisdiction of the Court which granted the withdrawal order:

The Court determined that the Court trying the subsequent suit is not competent to question whether the Court which granted the withdrawal order had jurisdiction to make such an order. The decision of the Court granting the withdrawal order remains conclusive between the parties unless vacated by a superior tribunal. It cannot be ignored or challenged collaterally in a different proceeding.

4. Revisability of such an order under Section 115, Civil Procedure Code:

The fourth issue concerning whether such an order is open to revision under Section 115, Civil Procedure Code, was not argued before the Full Bench and thus not addressed in the judgment.

Conclusion:

The Full Bench answered the first three questions in the negative, establishing the following propositions:
1. An order for withdrawal of a suit with leave to institute a fresh suit, even if made under circumstances not within the scope of Order XXIII, Rule 1, is not null and void.
2. A fresh suit instituted upon such leave is not incompetent.
3. The Court trying the subsequent suit cannot question the jurisdiction of the Court which granted the withdrawal order.

The decision of the Subordinate Judge was set aside, and the decree of the Court of first instance was restored with costs in all Courts, including the costs of the hearing before the Full Bench and the Division Bench. All judges (Fletcher, Chatterjea, Teunon, and Chaudhuri) concurred with this judgment.