[84] Straight, J. (after stating the facts continued):— I must deal with this preliminary objection first, and upon it I have only this much to say, that it seems to me that the order with which the Judge closes his judgment must be treated and regarded as one disposing of the suit and the appeal before him. It must, I think, be held to have put an end to the decree which had been passed in the defendant's favour by the Munsif, and it was therefore such an adjudication as must be regarded in the light of a decree. In this view of the matter, it affords a proper ground for a second appeal to this Court.
The next question to consider is the first point taken by the appellant. Had the Judge, sitting as a Court of appeal, power to make the order he did, with reference to the provisions of s. 373 of the Civil Procedure Code? Now, by s. 582 of the Civil Procedure Code, it is provided that a Court of appeal shall have in appeals the same powers, and shall perform, as nearly as may be, the same duties, as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits, and the provisions contained in the previous portion of the Civil Procedure Code shall be applicable to appeals, so far as such provisions are applicable. It therefore comes to this, that, in so far as they may be applicable, a Court of appeal has power to avail itself of the provisions of s. 373. In this connection I may refer to a ruling of Sir Barnes Peacock—Gregory v. Dooley Chand Kandary Mull—which, though delivered in reference to the provisions of the old Civil Procedure Code (Act VIII of 1859, read in conjunction with s. 37 of Act XXIII of 1861), may nevertheless be regarded as an authority in regard to the present Code. There it was held that a Court of appeal had the power to allow a plaintiff to withdraw a suit and institute a fresh one. In other words it was there decided that a Court of appeal is in this respect, placed in the same position as a Court of original jurisdiction; and if such Court of original jurisdiction has not done what it ought to do, then the Court of appeal may it self do what that Court ought to have done. I may observe that there is another ruling to the like effect—Khatoon Koonwar v. Hurdoot Narain Singh. Agreeing in the views expressed in those cases, I think with [85] regard to the first contention of the appellants, that the Judge had power, as a Court of appeal, to make the order he did.
The only other point for consideration is, whether the Judge was right in making his order, or was the exercise of his discretion so unreasonable that we ought to set his order aside.
Now by s. 373 of the Civil Procedure Code, read with s. 582, the Judge had, as I have already ruled, a discretion to permit the plaintiffs to withdraw the suit with leave to sue again. That discretion the Judge has exercised; and, without expressing any opinion as to whether, had I been in his place, I should have taken the course he did, I think it enough to remark that I cannot say that he exercised his discretion so unreasonably or erroneously as to compel our interference with it in appeal.
Looking to all the circumstances of the case, I dismiss the appeal; but as the defendants might well have accepted the Judge's order which gave them all their costs, I think this appeal was a very unnecessary proceeding, and that they ought not to have any costs. Consequently each party will pay his own costs on the appeal.
Tyrrell, J.:— The difficulty I felt in dealing with the procedure adopted by the lower appellate Court was, that a plaintiff could not, in my judgment, conceivably be allowed to withdraw, in the proper sense of that term, from a suit that had reached its termination in a decree. To allow a plaintiff to withdraw from a decreed suit is tantamount to allowing him to withdraw from the operation of the decree in that suit, which would stand, however, as a valid operative decree, such withdrawal notwithstanding, in favour of the defendant. In other words, it seemed to me that the District Judge, who had not in any way considered the decree in appeal before him, had not pronounced any decision on its legality or propriety, had left it in all respects undisturbed, could not allow the plaintiffs-appellants before him to withdraw from the suit under s. 373 of the Code, so as to enable them to bring a fresh suit. If there were no other obvious difficulties in the way, the subsisting decree of the Court of first instance would bar any second action in the same matter.
[86] But, on consideration, I think that we may take it that the Court below—though this was not done in express terms—meant to set aside, and did set aside, the decree of the Court of first instance, regarding it as a decree which could not have been rightly made and must be set aside, by reason of the radical defect discerned by the Court of appeal in the plaint, the basis of the suit and the decree.
Taking this view of the meaning and effect of the decree before us, I see no legal objection to the exercise by the appellate Court of the discretionary power of Chapter XXII of the Code; and in this view of the case I readily concur in the order proposed by my brother Straight.
Appeal dismissed.