JUDGMENT
1. This case does not fulfil the requirements of Section 115 of the Code of Civil Procedure. The order passed by the learned Munsif seems to satisfy the demands of justice.
2. Hori Lal instituted the suit for ejectment against Jagdamba Prasad. In support of his claim he propounded a duly registered deed of gift, dated 21st January, 1905. At a later stage of the suit it was discovered that although the document in question had not been formally proved, it had been exhibited by the Court all the same. This was a vital document in the case and the plaintiff apprehended that if the document was not formally proved, there was every likelihood of his suit being dismissed. He applied under Order XXIII, Rule 1 of the Code of Civil Procedure for leave to withdraw the suit with permission to institute a fresh suit. The learned Munsif considered the application and was of opinion that "there was no doubt that a technical mistake had occurred in this case." He, therefore, allowed the suit to be withdrawn. The plaintiff was put upon terms. He had to pay the entire costs incurred by the defendant up to date.
3. It is not open to controversy that the Munsif had jurisdiction to entertain the application presented to him under Order XXIII, Rule 1, Civil Procedure Code. There were certain grounds before him for allowing the suit to be withdrawn. Assuming that the grounds were not sufficient, the Court below rightly or wrongly exercised its discretion in favour of the plaintiff and also wed the suit to be withdrawn. Where a Court having jurisdiction to entertain an application under Order XXIII, Rule 1, Civil Procedure Code, comes to the conclusion that there is some ground for allowing the suit to be withdrawn and directs the suit to be withdrawn by safeguarding the interests of the defendants as to costs, the order in question is not one which can be challenged under Section 115, Civil Procedure Code. In Jhunku Lal v. Bisheshar Das 46 Ind. Cas. 71 : 40 A. 612 : 16 A.L.J. 495, a Division Bench of this Court ruled that this Court had jurisdiction to grant leave to the plaintiff to bring a fresh suit, and the fact that the Court might have exercised and probably did exercise a wrong discretion in granting the plaintiff's application was not sufficient to bring the case within the purview of Section 115 of the Code of Civil Procedure. We are entirely in accord with this view. We dismiss this application with costs.