JUDGMENT Henry Richards, C.J.
1. This is an application in revision and arises under the following circumstances. The plaintiff instituted a suit in the Court of the Munsif. After the evidence had concluded and either during or after the arguments, the plaintiff applied for leave to withdraw with liberty to bring a fresh suit. He based his application upon the fact that he had failed to give formal proof of a certain plaint which was apparently considered by the parties to be essential to the plaintiff's success. The Court granted leave to bring a fresh suit. The present application is made under Section 115 of the Code of Civil Procedure. That section provides that "the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears.
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit."
2. It is argued on behalf of the applicant that the Munsif acted illegally or with material irregularity in granting permission to bring a fresh suit. Order XXIII, Rule 1, deals with the withdrawal and adjustment of suits. Rule 1 is as follows: At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim, where the Court is satisfied
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may... grant the plaintiff permission to withdraw... with liberty to institute a fresh suit."
3. In support of the application the case of Bai Kashibai v. Shidappa Anapa 21 Ind Cas. 23 : 37 B. 682 : 16 Bom. L.R. 823, the case of Khub Chand v. Ajodhia Prashad 21 Ind. Cas. 76 : 11 A.L.J. 733 and the decision of their Lordships of the Privy Council in the case of Robert Watson & Co. v. Collector of Zillah Rajshahye 13 M.I.A. 160 : 12 W.R.P.C. 43 : 3 B.L.R.C. 48 : 2 Suth. P.C.J. 269 : 2 Sar. P.C.J. 500 : 20 P.E.R. 511 (P.C.) have been cited. I may say, speaking for myself, that I consider that a Court ought to be very slow to give liberty to bring a fresh suit after a case has been heard out on the merits, and probably an Appellate Court ought seldom or never to do so except where an application has been made to the first Court, and the Appellate Court thinks the first Court should have granted the application. I do not think that it ever was intended that a plaintiff should hare the power of trying out his case and then at the last moment asking for leave to withdraw with permission to bring a fresh suit. The mere ordering of the plaintiff to pay the defendant's costs does not compensate the latter for being sued a second time. But the real question before us is whether or not we can interfere in revision upon the ground that the Munsif either had no jurisdiction, or that he exercised his jurisdiction with material irregularity. It will be noted that the rule is divided into two parts, first, where a suit fails for a formal defect," and secondly, where there are other sufficient grounds." It was for the Munsif to say whether or not there were "other sufficient grounds" in the present case. It is somewhat difficult to definitely decide that the absence of a witness could under no possible circumstances be other sufficient grounds" within the meaning of the rule. However this may be, it seems to me that even if the Munsif be taken to have made a mistake in law, we nevertheless are not entitled to interfere in revision. In the very recent case of Balakrishna Udayar v. Vasudeva Aiyar 40 Ind. Cas. 650 : 40 M. 793 at p. 799 : 15 A.L.J. 645 : 2 P.L.W. 101 : 33 M.L.J. 69 : 26 C.L.J. 145 : 19 Bom. L.R. 715 : (1917) M.W.N. 628 : 6 L.W. 22 C.W.N. 50 (P.C.).1; their Lordships dealing with Section 115 of the present Code of Civil Procedure say as follows: "It will be observed that the section applies to jurisdiction alone, the irregular exercise, or nonexercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved." In the Privy Council case referred to on behalf of the applicant the original Court had dismissed the plaintiffs' suit, at the same time recording in its "proceeding" that the order was not intended to bar the plaintiffs from proceeding as if the action had not been brought. The question which their Lordships had to decide was whether the appearance of these words in the "proceeding" enabled the plaintiff to bring a fresh suit, notwithstanding the dismissal of the first one, the defendant having pleaded res judicata. Their Lordships incidentally, it is true, dealt with the meaning of the expression "sufficient cause" appearing in Section 97 of Act VIII of 1859 and no doubt took the view that that section was not intended to allow or enable a plaintiff to bring a fresh suit after it had been heard on the merits. I would reject the application.
P.C. Banerji, J.
4. I also am of opinion that the application should be rejected, but I would confine myself to this ground in rejecting it that it is not maintainable under Section 115 of the Code of Civil Procedure. It cannot be said that the Court below exercised a jurisdiction which was not vested in it by law. In the exercise of the jurisdiction which it undoubtedly had, it may have committed an error and apparently it did commit an error in the present case; but that alone would not justify this Court in interfering under Section 115 as interpreted by their Lordships of the Privy Council in previous cases, and also in the recent case to which the learned Chief Justice has referred. This being so, the application for revision cannot, in my opinion, be entertained and must be rejected.
5. The order of the Court is that the application is rejected with costs.