JUDGMENT

1. We are invited in this Rule to set aside an order made by the Court below under Order 23, Rule 1, Clause 2, of the Code of Civil Procedure. The plaintiff sued the defendants for recovery of money. The parties went to trial. Evidence was adduced on both sides and the argument on the side of the defendants was finished. At that stage the plaintiff applied for leave to withdraw from the suit with liberty to bring a fresh suit on the same cause of action. The Court thereupon recorded the following order: "I have gone through the evidence. It is a case in which permission to bring afresh suit should be given. It is accordingly ordered that the plaintiff be allowed to withdraw from the suit with permission to bring a fresh suit unless barred. The plaintiff do pay the costs of the defendant in this Court." The legality of this order is now called in question.

2. Rule 1, Sub-rule (2) of Order 23 provides that 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, on such terms as it think