A revisional application shall not lie against an interlocutory order unless it would finally dispose of the suit or cause irreparable injury to the party against whom it was made.

This Revisional application is directed against Order dated July 20, 1979, passed by the learned Munsif, 2nd Court, Alipore in Title Suit No. 115 of 1978. By the aforesaid impugned order the learned Munsif has disposed of an application under Order 23 Rule 1 of the C.P. Code made by the plaintiff opposite party. It appears that by the impugned order the learned Judge permitted the plaintiff to withdraw the suit unconditionally as prayed for by the plaintiff but on condition of payment at a cost of Rs. 50/- to the contesting defendants within a prescribed time. The defendant No. 2 intends to challenge this order in this Revisional application under section 115 of the C.P. Code.

2. Mr. Ganguly, the learned Counsel appearing for the petitioner contends that after the amendment of Act 1976, the Code of Civil Procedure has undergone a change and under the present provision of the C.P.C. there was no occasion to withdraw the suit and on the said application under Order 23 Rule 1 of the C.P.C. the Court should have passed an order holding that the suit had been 'abandoned' by the plaintiff. Mr. Ganguly contended that in the facts and circumstances of the case, the expression 'withdrawal' should not have been used by the learned Judge and because of putting the expression 'withdrawal' in place of 'abandonment' in the impugned order a different legal consequence has ensued causing prejudice to the contesting defendant namely the present petitioner. Mr. Ganguly contended that in view of the amendment of the Act, the learned Judge could not have passed an order directing for withdrawal of the suit without any leave to file a fresh suit on the same cause of action and as the learned Judge has acted illegally and without jurisdiction in passing the said order of 'withdrawal' of the suit after the amendment of the C.P. Code, an interference in Revision is called for. It is true that the provision of Order 23 Rule 1 has undergone a change and in the facts and circumstances of the case, the application under Order 23 Rule 1 should have been disposed of by the learned Judge, inter alia, holding that the suit has been abandoned by the plaintiff. But merely became he has used the expression 'withdrawal' instead of the expression 'abandoned' no interference in Revision is called for because no injustice has been caused to the defendant. Section 115 has also been amended by the Said Amendment Act of 1976 and a proviso has been added after clause (1) of Section 115 of the C.P. Code which holds, inter alia, to the following effect :-

"(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made."

3. It appears therefore that simply because clause 1 of 115 is attracted in a case a Revisional interference is not automatically called for unless the Court is also satisfied that the order, if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made. The Legislature by the said amendment intended that simply because a case comes under Clause 1 of Section 115 of the C.P.C. interference should not be made until the conditions laid down in the proviso are also fulfilled. A reference may be made to the report of the Joint Committee of Parliament which considered the Draft Bill relating to the said amendment Act, 1976. The relevant report is to the following effect :-

"The question whether it is at all necessary to retain section 115 was carefully considered by the Committee. The Law Commission has expressed the view that in view of Article 227 of the Constitution Section 115 of the Code is no longer necessary. The Committee, however, feel that the remedy provided by Article 227 of the Constitution is likely to cause more delay and involve more expenditure. The remedy provided i