Thornhill, J.The defendants were sued by the plaintiffs in the Court of the Munsif, 3rd Court, Arrah, seeking to recover Rs. 802, principal and interest, alleged to be due on a mortgage bond, dated the 28th of September 1909, said to have been executed by the defendants Ramphal Ram and Chattoo in their capacity of karta of their ijmal family in favour of Balgobind. The plaintiffs claimed through Balgobind and alleged that the mortgaged properties consisted of (1) a house and (2) an orchard. The petitioners are concerned with the house and allege that the same was sold to them in 1903 the vendors solemnly affirming that there was no mortgage or lien on the property. They further allege that after their purchase they spent Rs. 3,000 in re-building and repairing the house and it is now said that the mortgage bond is a bogus one.

2. The suit was instituted on the 31st of October 1916 and by the 19th of September 1917 all the plaintiffs witnesses had been examined and on the said date one of the defendants witnesses was also examined and cross-examined. On the next day a further witness of the defendants was examined in chief, when the plaintiffs filed a petition asking to be allowed to withdraw from the suit with permission to bring a fresh suit on the ground that some legal defects occurred in the suit and that there was defect of parties. This application was granted. It would appear from the order made by the learned Munsif that the defendants did not raise any pleas of legal defect of parties or otherwise which would defeat the plaintiffs case. It is urged on behalf of the present petitioners that there was no formal defect of any kind in the case but that the evidence on behalf of the plaintiffs was so full of contradictions and discrepancies that their suit was bound to fail and, therefore, the plaintiffs resorted to the device of applying for withdrawal of suit. The petitioners allege that in consequence of the Munsifs order they have been seriously prejudiced. It is to be noted that no legal defect has been set out in the plaintiffs petition for withdrawal nor has the learned Munsif found as a fact that any specific defect existed. The learned Vakil for the plaintiffs was unable to satisfy this Court that there was any real defect and certainly nothing that could not have been cured by amendment. In Hira Lal Mitra v. Uday Chandra Dey 14 Ind. CAS. 33 [LQ/CalHC/1912/69] : 16 C.L. 103 : 16 C.W.N. 1027 it was held that the object of Rule 1, Order XXIII, Civil Procedure Code, is not to enable a plaintiff, after he has failed to conduct his suit with proper care and diligence and after his witnesses have failed to support his case, to obtain an opportunity of commencing the trial afresh in order to avoid the result of his previous misconduct of the case and prejudice the opposite party; and the order of the Munsif was set aside on the simple ground that his order failed to disclose any formal defects in the suit or other sufficient ground by reason of which it should have been granted. In the present case the learned Munsif, after reciting that the plaintiffs had filed a petition withdrawing the suit on the ground that some legal defects had occurred in the suit and that there was defect of parties, ordered that "the plaintiffs are permitted to withdraw the suit with permission to bring a fresh suit, if not barred". This order was passed on 20th September 1917. The petitioners within a week instructed their Pleader to take steps to have the order set aside. The Pleader directed them to get for him a certified copy of the evidence, and owing chiefly to the intervention of the holidays he was unable to obtain a Rule from this Court before the 4th December 1917. This was obtained before he had any notice that the plaintiffs had instituted a fresh suit, so it can hardly be said that there was any delay on the part of the petitioners. It appears clear that it is not sufficient that the trial Court should say or suggest that there is a formal defect but that the existence of such a defect is a condition precedent to the exercise of jurisdiction under Order XXIII, Rule 1. In Bansi Singh v. Kishun Lall Thakur 26 Ind. Cas. 203 [LQ/CalHC/1913/483] : 4 C. 632 it was decided that Section 115 of the CPC did not apply where a case had been withdrawn with leave to bring a fresh suit, inasmuch as it could not be said that the case was one which had been "decided" by a Court subordinate to the High Court. It appears, however, that the Court admitted that it might have interfered in exercise of its extraordinary jurisdiction under the Charter but it saw no sufficient reasons for doing so. The Court did not give any specific meaning to the word "case" as used in Section 115 It is nowhere defined. In Motilal Kashibhai v. Nana 18 B. 35 : 9 Ind Dec. N S 532 which was decided u/s 622 of the old Code being equivalent to Section 115 of the present Code, the Court observed in relation to the word "case" that "a word of such general import must be controlled by due regard to the purpose for which Section 622 was framed. This, it cannot be doubted, was to enable a party to a suit to get a decision or order of a lower Court rectified by the High Court when there would otherwise be no remedy" See also Dhapi v. Ram Pershad 14 C. 768 : 12 Ind. Jur. 97 : 7 Ind. Dec. (N.s) 509 Again in Chattarpal Singh v. Raja Ram 7 A. 661 : A.W.N. (1885) 156 : 4 Ind. Dec. (N.S.) 854 Mahmood, J., was of opinion that the word should be understood in its broadest and most ordinary sense, unless there were specific reasons for narrowing its meaning. At all events cases of the nature of the one now before us have undoubtedly been dealt with under the CPC and can only be explained by giving a broad and generous interpretation to the section. In Kharda Company Limited v. Durga Charan Chandra 5 Ind. Cas. 187 [LQ/CalHC/1909/395] : 1911 Cri.L.J. 45, which is a case very similar to the present one, Mookerjee, J., says: "if, therefore, the order was irregularly made it ought not to be allowed to stand, for there can be no question that after an order u/s 373 of the Code of 1882 (similar to Order XXIII, Rule 1 of the new Code) has been improperly made, it is competent to this Court to interfere by way of revision". We consider the petitioners have been seriously prejudiced by the order of the Munsif, and having regard to the number of authorities showing that our interference is justified, we set aside the order of the learned Munsif dated the 20th September 1917, and declare the newly instituted suit to be null and void, and direct that the learned Munsif do proceed to deal with the case against these petitioners from the stage at which it had reached when the order was made. The petitioners are entitled to their casts, which we assess at Rs. 16.

Mullick, J.

3. I agree.