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Civil Revision Petition No. 232 of 1956, decided on 30th May 1957, under section 115 and 151, Civil P. C., for revision of the order of Sh. Muhammad Akbar, District Judge, Gujranwala, dated the 17th May 1956.

O. XXIII, r. 1 ---Appellate Court has power to allow withdrawal of suit with per mission to bring a fresh suit.

Held, that an appellate Court has power to allow with drawal of a suit with permission to bring a fresh suit.

Dayal Singh. etc. v. Uttam Kaur, etc. 1909 P R No. 21 ref.

Mahomed Yakub v. Mst. Badhibai A I R 1918 Sind 32 mentioned.

O. X XIII, r. 1(2)(b) ‑‑‑"Other sufficient cause"‑Not necessarily ejusdem generis with "formal defect" of cl, (a).

S. 115 & O. XXIII, r. 1‑----Wrong exercise of discretion‑Whether Court may be deemed to have acted without jurisdiction, or, with jurisdiction but with material irregularity‑Allowing withdrawal of suit with permission to bring a fresh suit.

Where a Court purports to exercise a discretion which the law only gives it in certain circumstances which are not shown to exist in a particular case, the Court does not act without jurisdiction but rather with jurisdiction, though with. material irregularity, in circumstances of the case.

Bidya Dhar v. Kapurthala Estate Bahraich A I R 1935 Oudh 495 ref.

Mahabir Prasad v. Muhammad Ali Khan A I R 1927 All. 704 dissented from.

Where, at the appeal stage, the plaintiffs‑appellants applied for withdrawal of the suit with permission to bring a fresh suit, on the ground that certain documents had not been produced before the trial Court because they were not avail able or within their knowledge when the suit was filed, and the appellate Court allowed the withdrawal:

Held, that the Court had not acted with material irregu larity in the exercise of its jurisdiction; and revision therefore, was not competent.

Syed Sadeq Raza v. Nawab Asaf Kader Syed A I R 1931 Cal. 268 and Chandrika Lal v. Sani Nath I L R 50 All. 835 ref.

M. B. Zaman for Petitioner.

Qassm‑ud‑Din for Respondents.

Date of hearing : 27th May 1957.

The facts leading up to this revision are that the plaintiffs, who are the successors‑in‑interest of the mortgagee of certain property, sued for a declaration that they had become owners of the mortgaged property in view of the failure of the mortgagors to have the mortgage redeemed within the statutory period. The suit was dismissed by the learned Senior Civil Judge, Gujranwala, and an appeal was filed in the District Court. Before it came up for hearing, the learned District judge allowed the plaintiff‑respondents to produce additional evidence. A revision was filed against that order (Civil Revision No. 191 of 1955) and for the reasons given in my order dated the 16th December 1955, was dismissed. The plaintiffs then applied to the learned District Judge, for leave to withdraw the suit with permission to bring a fresh suit. The application was granted by order dated the 17th of May 1956, against which the defendants have come up in revision to this Court.

The first point urged by Mr. M. B. Zaman is that an appellate Court has no jurisdiction to exercise the power con ferred by Order XXIII, rule 1, Civil P: C., but it has been held in a long succession of authorities (the only dissenting decision A being apparently that recorded in Mahomed Yakub v. Mst. Badhibai (AIR 1918 Sind 32) that the appellate Court has such a power. The majority view is also that of the Punjab Chief Court as laid down in Dayal Singh, etc. v. Uttam Kaur, etc, (1909 PR No . 21) and with respect I agree with it.

It was next urged that the expression "other sufficient grounds" occurring in clause (2) (b) of Order XXIII, rule 1, Civil P. C., must be construed as ejusdem generic with "formal defect" in sub‑rule (2) (a) of the same rule but in view of the e decision of this Court in Gurprit Singh v. Punjab Government (A I R 1946 Lah. 429), this contention cannot be upheld.

It was next urged that even if it be held that an appellate Court can, in certain circumstances, exercise the power con ferred by Order XXIII, rule 1, Civil P. C., the learned District judge in the present case acted either with material irregularity in the exercise of his jurisdiction or, alternatively, without jurisdiction. The view that where a Court purports to exercise a discretion which the law only gives it in certain circumstances, which are not shown to exist in a particular case, it must be deemed to have acted without jurisdiction, is taken in Mahabir Prasad v. Muhammad Ali Khan (A I R 1927 All. 704), while in Bidya Dhar v. Kapurthala Estate Bahraich (A I R 1935 Oudh 495) it was held that in such a case the Court acts in the exercise of its jurisdiction but with material irregularity, With great respect, I prefer the second of the above views, and hold that the question for decision in this case is whether the learned District judge in passing the order under revision, acted in the exercise of his jurisdiction with material irregularity, a question which in turn resolves itself into the issue of whether there were "sufficient grounds" within the meaning of Order XXIII, rule 1, Civil P. C., for allowing the plaintiffs to withdraw their suit with liberty to sue afresh.

In my opinion it cannot be said that any material irregu larity has been committed in the circumstances of the present case. In Syed Sadeq Raza v. Nawab Asaf Kader Syed (A I R 1931 Cal. 268) it was held that where the evidence upon which the plaintiff elied to prove his case is for no fault of his, not available at the hearing, the Court may come to the conclusion that in the interest of justice he should be allowed to withdraw the suit with liberty to bring a fresh suit even on the same cause of action. Again, in Chandrika Lal v. Sani Nath (ILR 50 All. 835) it was laid down that where a Court allowed a plaintiff to withdraw his suit, with liberty to bring a fresh one, on the ground that he had not given formal proof of a document which was essential to his success, the Court was within its jurisdiction and the High Court should not interfere. In the present case the allegation is that the documents sought to be produced were not available to the plaintiffs or within their knowledge when the suit was filed, and in view of the fact that one of the documents in question, purporting to be a sale deed of the mortgaged property in favour of the original mortgagee, would have greatly strengthened the plaintiffs' position, it cannot be aid that the allegation is prima facie without force.

I accordingly hold that the learned District judge has not been shown to have acted with material irregularity in the exercise of his jurisdiction, and dismiss the revision with costs.

A. H. Petition dismissed.

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