Ashworth, J.:— This is an application under section 115 of the Code of Civil Procedure by the plaintiff in a suit brought in the court of the Additional Munsif of Deoria. The plaintiff sued Baijnath Pande, the defendant, opposite party, for possession of certain land by the removal of an erection said to have been unlawfully made thereon by the defendant. His suit was dismissed for failure to prove that the land belonged to him, the Munsif holding that the evidence and maps were inconclusive. On appeal, in the course of argument, the plaintiff appellant made an oral application to withdraw from the suit with liberty to institute a fresh suit. The order-sheet shows the fact of permission being asked but not the grounds on which it was asked, beyond that it was “by reason of legal defects.” The appellate court's order fails to set forth the grounds on which permission was given. It is impossible, therefore, for this Court to judge whether the lower court exercised a judicial discretion in giving the permission. Ordinarily permission should not be given by an appellate court except on cogent grounds.
Accordingly I allow this application and direct that the order of the lower court granting the permission to withdraw from the suit with liberty to institute a fresh suit be set aside and the case will go back to it with directions to place the appeal upon the file of pending appeals and to dispose of it according to law. If the application for permission for liberty to withdraw from the suit with liberty to bring a fresh suit is granted by the court, the court must state its reasons. The costs of this application will abide the result.
Application allowed.