JUDGMENT
1. This is an application in revision against an order by which a Court of first appeal, setting aside the decree of the Trial Court dismissing the suit, substituted for that decree an order under Order XXIII, Rule 1, of the Code of Civil Procedure, permitting the plaintiff to withdraw from the suit with liberty to institute a fresh suit in respect of the subject matter of the same. The jurisdiction of an Appellate Court to pass such an order has not been challenged, at any rate since the decision of a Bench of this Court in the case of Afzal Begam v. Akbari Khannm 28 Ind. Cas. 857 : 13 A.L.J. 444 : 37 A. 326. It is contended that the lower Appellate Court, in the present instance, acted in the exercise of its jurisdiction illegally and with material irregularity, because it has not, given any reasons for granting the plaintiff permission to withdraw, such as to satisfy the requirements of Order XXIII, Rule 1, Clause (2) of the Code of Civil Procedure. The case has been referred to a Bench of two Judges, because of a presumed conflict of authority as to the limits of the revisional jurisdiction of this Court in such a matter. If we confine our attention to cases decided by a Bench of two Judges, there are only three cases calling for notice. These are Radha Bawan v. Tula Ram 17 Ind. Cas. 647 : 10 A.L.J. 393; Afzal Begam v. Akbari Khanam 28 Ind. Cas. 857 : 13 A.L.J. 444 : 37 A. 326 and Jhunku Lal v. Bisheshar Das 46 Ind. Cas. 71 : 16 A.L.J. 495 : 40 A. 612. These cases are not irreconcilable, and, in our opinion, they were all three rightly decided. The first lays down the proposition that, where in the judgment of a Subordinate Court there is nothing to show that that Court, when granting a plaintiff permission to withdraw from his suit with liberty to institute a fresh suit, applied its mind to the provisions of the Legislature on this point, or tame to any judicial decision as to whether or not the plaintiff had made out an adequate care for the granting of such permission, this Court will interfere in revision. It is worth nothing that in the case of Radha Rawan v. Tula Ram (2), this Court merely ordered the Court below to take the case back on to its register of pending cases and to dispose of it according to law. The order of this Court does not preclude the Court below, upon a proper application based upon valid grounds, from re-considering the question whether the plaintiff in that particular litigation ought or ought not to have been allowed the permission which he sought. The other two cases are authority for this proposition that, where a judicial discretion has been exercised, this Court will not interfere, merely on the ground that, had the matter come before this Court as a substantive application, or by way of appeal, it might not have taken the same view of the facts of the case in their application to the provisions of Order XXIII, Rule 1 of the Code of Civil Procedure as commended itself to the Court below. Applying this proposition of law to the facts before UP, we think that, in this case, the lower Appellate Court did apply its mind judicially to the question properly in issue before it. As a matter of fact, the plaintiff's application for leave to withdraw had been made in the first instance to the Trial Court and rejected by that Court, so that the Appellate Court was reconsidering a matter upon which the Trial Court had pronounced a judicial opinion. The learned District Judge has recorded his opinion that there was a formal defect in the frame of the suit, and that there were otherwise sufficient grounds in law for allowing the plaintiff to withdraw and to institute a fresh suit on the same subject matter. We think that, in this case, a judicial discretion was undoubtedly exercised and that it is not for us in revision to pursue the matter further. We dismiss this application with costs.