JUDGMENT

Mukerji, J. - This is an application to revise an order of the lower appellate Court dated 5th December 1927, by which the Court allowed an application made by the plaintiffs in the suit, who are the respondents before us, to withdraw the suit instituted by them with liberty to bring a fresh suit.

2. The facts which led to that application are briefly these: The plaintiffs came to Court with the prayer that they might be declared to be the owners of certain plots by virtue of a certain ancient gift. In the plaint they said that they were paying a certain amount of money periodically to the zamindars but that they were paying the same as being their share of the revenue payable to the Government, and that they are paying the same to the Government through the zamindars. When the parties were examined by the Court for framing the issues, on 18th December 1926, one of the plaintiffs said: '"muzhir zamindar ko lagan deta tha." The defendants to the suit, who are the applicants before us, were the zamindars They opposed the claim on the ground that the plaintiffs were nothing but tenants of the lands in question. The learned Subordinate Judge who heard the suit found that it had not been proved that the plaintiffs were proprietors of the land. On this finding, he dismissed the suit.

3. An appeal was filed by the plaintiffs The appeal was heard on 1st December 1927. Then the counsel for the appellants asked for a day's time to produce some rulings. The case was ordered to be put up on 3rd December 1927. On that date plaintiffs made an application for withdrawal of the suit with liberty to sue again. On that date the application was not heard because the counsel for the defendants were not present. The application was taken up before the counsel for the parties on 5th December 1927. The arguments of the counsel were heard, their statements were taken down and the learned Judge passed the order which is now being complained of before us.

4. The learned Counsel for the defendants applicants has urged that the learned Judge had no jurisdiction to pass the order that he did pass. The ground for this argument is thus stated: The Court had jurisdiction to pass the order only in case the provisions of Order 23, Rule 1, were complied with by the plaintiff. If these were not properly complied with the Court below had no jurisdiction to pass the order.

5. On the other hand, for the respondent it has been urged that the Court had jurisdiction to pass the order it did pass and, therefore, this Court having no appellate jurisdiction, could not interfere even if the Court below should have been wrong in its order.

6. We have to see which of these arguments is sound.

7. According to the authorities in this Court it may be taken to be settled law, that where a Court passes an order granting the plaintiff permission to withdraw the suit with liberty to sue again, but gives no reasons whatsoever for its order, this Court has interfered on the ground that the Court below has not applied its mind to the application and has, therefore, passed an order which could be revised u/s 115, Civil P.C. This case is not one of the cases mentioned above. In the case before us, as I have already pointed out, the learned Judge heard the appeal almost to its completion. The only thing that remained to be done was the production by the plaintiffs' counsel of a ruling. When the application for withdrawal with liberty to sue again was put in, the learned Judge heard the counsel for the parties, and then passed an order. The order is couched in no less than 20 lines of our paper book. There can be no doubt that the order is one which does not satisfy me as a desirable order, but I have no doubt that the Judge did apply his mind to the application, and did all that he was capable of doing. It is not the case that he wanted to avoid hearing the appeal. He had heard the appeal almost to its conclusion and all that remained to be done was to dictate an order. If we analyse