1969L31 (PLP)

Revaneshwar v. Baijnath Ram A I R 1915 P C 24; Hriday Nath v. Akshay Lai A I R 1917 Cal. 409; Shahu v. Mst. Rahmon A I R 1938 Lah. 52 and Lai Devi v. Nathu Ram A I R 1941 Lah. 18 rel. Ch. Abdur Razzaq for Appellants. SARDAR MUHAMMAD IQBAL, J.‑--Gahia, grandson of one Noor, purchased the land in dispute under the Colonization of Government Lands (Punjab) Act. On his death, the property devolved on his son Miran Bakhsh, and eventually on Ali Bakhsh, another grandson of Noor, the defendant‑donor. Ali Bakhsh, defendant No. 1 made a gift of the property in dispute in favour of Rehmat, a real brother of the plaintiff‑appellants. The plaintiffs filed a suit for a declaration that it was not competent for the donor to make gift under custom, and it was, therefore, void and inoperative as against their reversionary interest in the property. The suit was dismissed by the learned Civil Judge on the ground that the land in dispute had not been traced to Noor, the real common ancestor, the same having been purchased by Gahia son of Nanak, who was not the common ancestor. The appellants failed in appeal before the District Judge and filed a second appeal in the High Court on the dismissal of which the present Letters Patent Appeal has arisen.

2. The High Court has the jurisdiction to entertain a second appeal only under section 100 of the Code of Civil Procedure on any of the grounds, viz.: the decision is contrary to law or to some usage having the force of law; the decision has failed to determine some material issue of law or usage having the force of law; or that a substantial error or defect in the procedure provided by the Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. The only point which was canvassed before the learned Judge in Chambers for the admission of the appeal was that the finding of the District Judge that the property was not ancestral was not correct. High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact however gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits. A fallacious method of approaching the evidence has never been held to be a good ground for up setting, in second appeal, a finding of fact, unless it amounts to a material mistaken assumption. The appellants before the learned Judge in Chambers did not canvass any point nor they have brought one to our notice to show that any illegality or material irregularity had been committed by the learned District Judge in coming to the decision. The learned Judge in Chambers held that the decision on the question whether the property was ancestral stood concluded by a finding of fact, and far this short reason the appeal was rightly dismissed by him in limine.

3. The appellants, along with the appeal, had presented an application for the amendment of the plaint and also sought permission to withdraw the suit. The learned Judge dealt with the application after having clearly held that the appeal con cluded by a finding of fact. The amendment was not allowed. Pleadings can be amended under rule 17 of Order VI of the Code of Civil Procedure at any stage of the proceedings. The appeal is a continuation of a suit, but it is so only after it is admitted to hearing. Since the appeal did not merit admission, the proceedings stood concluded by the dismissal of the appeal by the District Judge. The application for amendment could not be entertained in the absence of a competent appeal before the High Court.

4. It is also an unquestionable proposition that a Court of appeal has power, in a proper case, to grant permission to withdraw tae suit with liberty to file a fresh one. Before such a permission is granted, it is necessary that the suit should be pending. The appeal being entertained the suit continues, and if the appeal is not entertained, there is no suit which can be permitted by the appellate Court to be withdrawn. In Revaneshwar v. Baijnath Ram (AIR 1915 P C 24), the Privy Council permitted the plaintiff to withdraw the suit with reference to a portion of the subject‑matter with liberty to sue again. The power can be exercised only by a Court of appeal and that too if it is seized of the appeal. Unless the appeal is entertained, it cannot order the withdrawal of the suit. The appellate Court cannot, before the admission of the appeal, allow a suit to be withdrawn. It cannot also while dismissing the appeal as incompetent allow the plaintiffs to withdraw the suit, as a part of the same order. In Hriday Nath v. Akshay Lal (A I R 1917 Cal. 409) it was observed: " . . . . . the Subordinate Judge has overlooked that if the appeal was dismissed, the suit could not very well be allowed to be with drawn, as the decree of dismissal would operate as res judicata between the parties in respect of all questions in controversy in the suit." In Shahu v. Mst. Rahmon (A I R 1917 Cal. 409), it was observed that on the dismissal of the appeal, the suit automatically is dismissed and the Court ceases to have any further jurisdiction in the matter and it ceases to have any power to grant permission to the plaintiff to institute a fresh suit on the same cause of action. It was further held that a subsequent suit brought by the plaintiff on the basis of such order was barred by principles of res judicata. Again in Lal Devi v. Nathu Ram (A I R 1941 Lah. 18) the observations are that where a suit is dismissed and an appeal is preferred against it, the appellate Court after dismissing the appeal has no jurisdiction to allow the plaintiff to withdraw the suit with permission to file a fresh suit.

5. We are, therefore, of the opinion that the learned Judge in Chambers having held that the appeal before him was not competent, could not permit the appellants to amend the plaint or withdraw the suit.

6. We dismiss the appeal in limine. A. E. Appeal dismissed to limine.