B. Mukerji, J. - (1.)This is an application in revision by the defendants against the order of a Munsif of Lucknow granting permission to the plaintiff to withdraw his suit and further to file a fresh suit on the same cause of action. This application in revision originally came up before a learned single Judge who thought it desirable, because a large number of decisions had been cited before him on the question whether or not a revision lay, to refer it to a Bench and that is how this revision has now been listed before us.
(2.)The suit out of which this revision has arisen was filed by Shri Thakurji Maharaj Brijman in the house of late Pandit Brahmadin through his Shibait and Sarbarkar, Pt. Hari Shanker. The suit apparently was for a declaration of title to some property. It also is clear, at any rate from the referring order, that the success of the plaintiff depended upon the plaintiff successfully proving the existence of a certain will in his favour. The plaintiff found himself in a curious situation when he discovered that his witnesses, particularly those who were the attesting witnesses of the will, had been won over by the defendants. The plaintiff therefore applied to the Court for permission to withdraw the suit with liberty to file a fresh suit later on the same cause of action. The plaintiff apparently, took this precaution because he, may be optimistically, believed that he may at a later date succeed in prevailing upon the witnesses to be honest and truthful and thus support his title which depended upon the formal proof of the will. The Court below, namely, the Munsif, under the aforementioned circumstances, permitted the withdrawal of the suit as we have already said. A revision was filed to this Court and Mr. Banerji, the learned Counsel for the applicants, has strenuously contended that the learned Munsif had no jurisdiction to make the order that he has made in this particular case. Mr. Banerji's arguments were laid out on a very wide canvass and during the course of his arguments he discussed all the cases which were decided by the various High Courts, the Privy Council and also by the Supreme Court which indicated the ambit of the power which a High Court exercised under Section 115 of the C.P.C.
(3.)The argument of Mr. Banerji amounted to his contending that a Court could only allow the withdrawal of a suit with permission to bring a fresh one on the same cause of action if, and only if, it fell within the four corners of Order 23 Rule 1 of the Code of Civil Procedure. He further contended that any error committed by the Court below in deciding whether or not in a particular set of circumstances on which the plaintiff applied for the withdrawal of a suit with permission to bring a fresh one he could be permitted to do so, was an error of jurisdiction. The way Mr. Banerji tied up this error, if we may put it that way, to the question of jurisdiction was by saying that the Court could only nave jurisdiction to allow the plaintiff to withdraw the suit with permission to bring a fresh suit if that Court, without committing any error whatever in its interpretation of either Order 23 Rule 1 or in regard to the facts and circumstances, permitted it, otherwise every error according to him would be an error of jurisdiction.