Spencer, J.—Now that the Full Bench has decided that leave to withdraw a suit with liberty to file a fresh suit may be given by an Appellate Court when reversing the decree of a Lower Court, it is argued that, as the decree of the District Court did not in terms set aside the District Munsif's decree, there was no valid permission given to the plaintiff to bring the suit out of which this appeal has arisen.
I have already stated that in my opinion what the District Judge intended evidently was to set aside the decree of the Original Court and to permit the suit to be withdrawn, and my learned brother Krishnan, J. has expressed it as his opinion that it must be taken to have actually had that effect. The petition to withdraw and the order of the District Judge are not on the record. So it is not known whether the order passed by the Judge was to set aside the decree of the District Munsif and dismiss the suit. But taking the decree as it stands, I find no meaning in saying that the appeal is withdrawn with liberty to bring a fresh suit, considering that it was the plaintiff who was appealing and that it would not have served his purpose to withdraw his appeal without also withdrawing his suit that had been dismissed in the First Court.
I think we must give the decree an effect which is intelligible and the only effect of the sentence ordering the withdrawal of the appeal which would be consistent with the rest of the decree is that it put an end to the decree which had been passed by the District Munsif. Otherwise the District Judge had no power to give leave to the plaintiff to bring a fresh suit. Omnia, praesumuntur rite esse acta We should, if possible, presume his decree was legally effective and that he was not deliberately making it impossible for the plaintiff to get the relief sought and granted. I think the proper answer to the present contention may be found in the judgments of Straight and Tyrrell JJ., in Ganga Ram v. Data Ram, who say in a similar case that the Judge's order meant to set aside and did set aside the decree of the Court of First Instance, though this was not done in express terms, and that it must be treated and regarded as one disposing of the suit and the appeal before the Judge.
As stated in Jogodindro Nath v. Sand Sunduri Debi an order of an Appellate Court giving leave to withdraw an appeal and to withdraw the suit with liberty to bring a fresh suit does not merely set aside the First Court's decree as the term is used in its ordinary sense; it does not substitute anything for the decree which is set aside, but it simply wipes it out and leaves the parties to the determination of the rights in a subsequent suit, and what is done with regard to the First Court's decree is merely ancillary to the rest of the order, which is not a decree. This view was adopted and followed by the Allahabad High Court in Jagdesh Chaudhri v. Tulshi Chaudhri and Genda Mal v. Prabhu Lal. Such is the ordinary effect of an order made under R. 1 of O. 23 of the Code of Civil Procedure and there can be no doubt that the order in question purported to be an order under the said rule and not under any other provision of law.
I consider therefore that the learned District Judge intended to and did by his decree wipe out the District Munsifi's decree when he gave leave to the plaintiff to bring a fresh suit. The defendants took no steps to have the order giving this leave set aside or revised as being illegal owing to the existence of the First Court's decree dismissing the suit, as they might have done if they wished to treat the First Court's decree as still subsisting.
My learned brother is of opinion that this appeal should be allowed. Under Sect. 98 of the Civil Procedure Code, it is dismissed with costs.
Phillips, J. —In this case the question referred to the Full Bench was “whether an Appellate Court has the power for proper reasons to allow a suit to be withdrawn with liberty to file a fresh suit.
“It has been answered in the affirmative, but with one important modification, that is, that an Appellate Court has such power “when reversing the decree of the Lower Court.” In the present case the decree of the District Court was as follows:— “that the appeal be and the same hereby is withdrawn with liberty to bring a fresh suit, etc.” Costs of the appeal were ordered to be paid by Appellant, but no order was passed as to costs in the Lower Court nor was the Lower Court's decree reversed. It is contended for Appellants that the effect of the Appellate Court's decree is to wipe out the Lower Court's decree, and that we must take it as having that meaning. In Ganga Ram v. Data Ram, Straight, J. held, that an order of the Appellate Court allowing a suit to be withdrawn must be held to have put an end to the decree and Tyrrell, J. concurred in this view. The point, however, that they were considering was whether such an order amounted to a decree. The cases in Jagdesh Chaudhri v. Tulshi Chaudhri and Genda Mal v. Pirbhu Lal were also cases in which the same question was in issue. In Jogodindro Naih v. Sarut Sunduri Debi where again the right of appeal was in question, the Court remarked “we do not think that this order (that is, an order giving leave to withdraw the appeal and the suit with liberty to bring a fresh suit) is for annulling of a decree. The setting aside or annulling of a decree by the Appellate Court, as it has been done in this case, does not set aside the decree as the term is used in its ordinary sense……………but simply wipes it out and leaves the parties to the determination of their rights in a subsequent suit and what is done with regard to the First Court's decree is merely ancillary to the rest of the order.” The order appealed against is not quoted in the report, but from the language of the judgment it would appear that it did expressly set aside or annul the decree of the Lower Court and it would appear that in none of these cases was the appeal alone allowed to be withdrawn.
On the other hand in Watson v. The Collector of Rajshahye et seq where a suit was dismissed with leave to bring a fresh suit and it was found that the leave was granted in the exercise of an improper discretion, it was held that the dismissal of the suit was effective as res judicata.
In Gulkandi Lal v. Manni Lal where a suit was dismissed in pursuance of a compromise, and no leave to bring a fresh suit was obtained nor were the terms of the compromise embodied in the decree, it was held that a fresh suit was barred and that it was incumbent on the plaintiff to see that the Court did its duty and recorded a proper order in the suit. In Tirupati v. Muttu, a District Judge passed an order in appeal “withdrawn with permission to institute a fresh suit on the same cause of action” and while holding that it was improperly given it was observed that the decree passed by the Munsif had not been set aside and was still operative. Where a wrong order has been passed by a Court it does not necessarily give a party a right, and we see in Sukh Lal…(Defendant); v. Bhikhi…(Plaintiff).* where a suit was dismissed with liberty to bring another suit for possession of one-third of the plaint property, and it was held that the District Munsif had no power to make the reservation and the subsequent suit was barred by res judicata. We see in the cases where leave to bring a fresh suit has been wrongly given that the rest of the order dismissing the suit is held to be valid. These authorities have no very direct bearing on the question which we have really to consider, that is, whether the District Judge's order can be said to have been passed “when reversing the decree of the Lower Court.” It is contended that the opinion expressed by my learned brother Krishnan, J., in the order of reference that the District Judge intended to set aside the Lower Court's decree and must be deemed to have done so, is final, but these were the words added in the answer of the Full Bench, “when reversing the decree of the Lower Court,” which in my opinion have the effect of re-opening the question even if it could be deemed to have been decided. As the District Judge's order stands it does not in any way affect the District Munsif's decree, for it merely allows the appeal (not the suit) to be withdrawn and makes an order as to costs in the Appellate Court. No provision is even made for payment of costs in the District Munsiff's Court and I am therefore of opinion that at least as far as those costs are concerned the District Munsif's decree was not set aside by the Appellate Court. In fact the decree, as it is, amounts merely to striking off the appeal, I think it very likely that the District Judge intended to set aside the Lower Court's decree, but he has not done so, and if the order is drafted in such a way as to fail to give effect to the Court's intention, it was the duty of the party to apply to have it corrected. As the order does not reverse the Lower Court's decree I do not think that it is open to us now to read it in the light of what we think was the intention of the judge. I would therefore allow the appeal, holding that as the original decree has not been reversed it is still valid and effective as res judicata.
S. S.Appeal dismissed.