1. We are invited in this rule to set aside an order made under R. 1 of O. 23 of the CPC. The petitioner was a defendant in a suit for partition of joint property, and contested the claim, on the ground, amongst others, that the plaint was insufficiently stamped. An issue was raised upon this preliminary point, and after various interlocutory orders, which need not be set out in detail for our present purpose, the Court decided on 6th January 1916 to determine the question of court-fees thus raised. On the day following, witnesses were examined, arguments were heard and judgment was reserved. Six days later, we find the following entry in the order sheet:
“Plaintiffs are permitted to withdraw and bring a new suit. In the Special circumstances of the case, I make no order as to costs.”
2. What had happened was that on 12th January the plaintiffs presented an application to the Sub-ordinate Judge under R. 1 of O. 23 of the CPC. They alleged that the suit as constituted was defective for want of parties and that full relief could not be had unless the suit was re-constituted. No notice of this application was given to the defendants; but the Court proceeded to make the order set out above. The petitioner now prays that the order may be set aside, and his application is supported by some of the other defendants to the suit.
3. The plaintiffs contend that this Court has no jurisdiction to set aside the order of the Sub-ordinate Judge and rely upon the dictum of Coxe, J., in the case of Bansi Singh v. Kishun Lall Thakur* . AIR 1915 Cal 100 that a case could not well be said to have been decided within the meaning of Section 115 of the CPC, when the Court had not adjudicated on the merits but had merely permitted the withdrawal of the plaintiff from the suit. We observe, however that Digambar Chatterjee did not share the doubt expressed by Coxe, J., as to the competency of this Court to interfere with an order improperly made under O. 23, R. 1. We may point out that instances are by no means rare, where the High Court has set aside orders improperly made under O. 23, R. 1, in the exercise of the powers vested in it by Section 115 of the CPC: Kharda Co. Ld. v. Durga Charan Chandra . 1910 5 IC 187.; Mabulla Sardar v. Hemangini Debi3; Ram Krishna v. Ram Kirpa . 1912 14 IC 97., or under Section 25 of the Provincial Small Cause Courts Act: Umesh Chandra v. Rakhal Chandra . 1910 10 IC 8.; Burothagunta Pentadee v. Thurlapatti Rajamma . 1910 8 IC 868.. We feel no doubt whatever that in any view we have ample jurisdiction under Section 107 of the Government of India Act, 1915, to set aside the order of the Sub-ordinate Judge, which cannot possibly be supported, as it was passed without opportunity afforded to the defendants to contest the application for withdrawal made by the plaintiffs. It has been contended however on behalf of the plaintiffs that R. 1 of O. 23 of the CPC, does not specifically require that notice of such an application must be given to the opposite party. That is perfectly true.
4. But as pointed out in the case of Ajant Singh v. Sunder Mal . 1912 16 IC 567., it is an elementary rule of universal application and founded upon the plainest principles of justice that a judicial order which may possibly affect or prejudice any party cannot be made unless he has been afforded an opportunity to be heard; this is merely an instance of the application of the maxim audi alteram partem. In the present case the defendants have incurred costs to resist the claim of the plaintiffs. They have not had opportunity given to them by the Sub-ordinate Judge to contest the truth of the allegations made by the plaintiffs in their application for withdrawal from the suit. If they had notice of the application, they might well have appeared and contended, that although the plaintiffs might be allowed to withdraw from the suit, they should not be permitted to harass the defendants with a fresh suit on the same cause of action. They might also have urged that even if an order were made in terms of the petition, the defendants should be indemnified to the extent of the costs incurred by them. We are of opinion that the Sub-ordinate Judge should not have made an ex-parte order of this description and that he has acted with material irregularity in the exercise of his jurisdiction. The result is, that the rule is made absolute, the order of the Sub-ordinate Judge discharged and the case remitted to the Court below in order that the application of the plaintiffs may be heard in the presence of all the parties concerned. The petitioner is entitled to the costs of this rule. We assess the hearing fee at two gold mohurs.
V.B/R.K
5. Rule made absolute.