1920 (5) TMI 4 - HC - Indian Laws

Summary

Issues Involved:
1. Jurisdiction of the Court to allow withdrawal of a suit with liberty to file a fresh suit under Order XXIII, Rule 1(2) of the Civil Procedure Code.
2. Competence of a fresh suit instituted upon such leave.
3. Competence of the Court trying the subsequent suit to question the jurisdiction of the Court that granted the withdrawal order.
4. Revisability of such an order under Section 115 of the Civil Procedure Code.

Issue-Wise Detailed Analysis:

1. Jurisdiction of the Court to Allow Withdrawal of a Suit:
The primary issue was whether an order for withdrawal of a suit with leave to institute a fresh suit, made under Order XXIII, Rule 1(2), but on grounds not contemplated by the rule, could be treated as an order made without jurisdiction and thus null and void. The judgment clarified that jurisdiction is the power to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it. The Court has jurisdiction to try the suit and make an order for withdrawal with liberty reserved to the plaintiff to institute a fresh suit if it is satisfied that circumstances exist which justify such an order. Even if the order was made erroneously, it is not an order made without jurisdiction but an order made by a Court of competent jurisdiction acting with material irregularity in the exercise of its jurisdiction.

2. Competence of a Fresh Suit Instituted Upon Such Leave:
The second issue was whether a fresh suit instituted upon such leave is incompetent. The judgment held that a fresh suit instituted upon leave granted by a Court of competent jurisdiction is not incompetent, even if the order for withdrawal was made under circumstances not contemplated by Order XXIII, Rule 1(2). The order remains operative between the parties until it has been vacated by a superior tribunal.

3. Competence of the Court Trying the Subsequent Suit to Question the Jurisdiction:
The third issue was whether the Court trying the subsequent suit is competent to enter into the question of whether the Court which granted the plaintiff permission to withdraw the first suit with liberty to bring a fresh suit had jurisdiction to make such an order. The judgment concluded that the Court trying the subsequent suit is not competent to enter into this question. The order for withdrawal, even if erroneous, is not null and void and cannot be challenged collaterally in a different proceeding.

4. Revisability of Such an Order under Section 115, Civil Procedure Code:
The fourth issue was whether such an order is open to revision under Section 115 of the Civil Procedure Code. However, this question was not argued before the Full Bench and thus was not addressed in the judgment.

Conclusion:
The Full Bench answered the first three questions in the negative and did not address the fourth question as it was not argued. The propositions derived from the judgment are:
1. An order for withdrawal of a suit with leave to institute a fresh suit, made under Order XXIII, Rule 1, but in circumstances not within the scope of the rule, cannot be treated as an order made without jurisdiction and is not null and void.
2. A fresh suit instituted upon such leave is not incompetent.
3. The Court trying the subsequent suit is not competent to question the jurisdiction of the Court that 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 the Courts, including the costs of the hearing before the Full Bench and the Division Bench.