Decided on September 30,1954

MELA Appellant
LABHU Respondents


Bishen Narain, J. - (1.) This second appeal raises a question as to the effect of non-observance of the conditions under which a suit is allowed to be withdrawn with liberty to bring a fresh suit.
(2.) Mela and Ganda instituted a suit on I5-I-1949 for a declaration that the entries in the revenue papers are wrong and that in fact the plaintiffs are the owners and are as such in possession of the disputed land and the defendants have no rights therein. This suit was, however, withdrawn under Order 23, Rule 1, Civil P.C.. and the trial Court on 30-11-1949 passed an order granting permission to the plaintiffs to withdraw the suit and they were allowed to institute a fresh suit in respect of the same subject-matter. The plaintiffs were, however, ordered to pay costs of the suit to defendant 1 and counsel's fee was assessed at Rs. 10/-. But it was ordered that the plaintiffs will not have the right of filing a fresh suit without first paying the costs of the present suit. The plaintiffs after three days instituted the present suit on 3-12-1949. The next date fixed in the case was 3-2-1950 when, the defendants filed their written statements and objected to the competency of the suit on the ground that the costs of the previous suit had not been paid. A preliminary issue was framed by the trial Court on the same day and at about the same time the plaintiffs made a written application for permission to deposit the costs of the suit and this permission was granted and the amount was deposited the next day. All these above facts are admitted by the parties to be correct, and the ' learned counsel for the defendants respondents has also admitted that if the suit had been filed on 4-2-1930 after deposit of the costs, no objection like the present one could have been raised 011 any ground whatsoever. Both the lower courts have dismissed the suit on the ground that the present suit was not competent inasmuch as the costs had not been paid in accordance with the-order dated 30-11-1919 before institution of the present suit, and the plaintiffs have come to this Court in second appeal, and I have heard Mr. Shamair Chand, the learned counsel for the appellants in support of it.
(3.) Order 23, Rule 1, Civil P. C., reads as far as it is relevant in the present case, as follows-- "23.1. (1) At any time after the institution of a suit the plaintiff' may, as against ail or any of the defendants, withdraw his suit or aban- don part of his claim. (2) Where, the Court is satisfied-- (a) that a suit must fail by reason of some formal defect, or (b) * * * * * it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim." Order 23, Rule 2 lays down that the plaintiff shall be bound by the law of limitation in the same manner as the first suit had not been instituted on permission granted under Order 23, Rule 1, Civil P. C. The Civil Procedure Code does not deal at any place with the consequences of the with-drawal of a suit excepting under Order 23, Rule 1, and this Rule does not specifically lay down that if a suit is withdrawn with liberty to file a fresh suit, then the fresh suit will not be competent unless the terms on which the suit is allowed to be withdrawn are performed previously, and it is obvious that this could not have been provided in the statute because the terms need not necessarily lay down any condition precedent which must be fulfilled before a fresh suit can be filed. It is, however, clear from the wording of Order 23, Rule 1(2) that the terms on which the plaintiff is allowed to withdraw the suit must be complied with. If the Court allowing withdrawal of the first suit merely orders that the costs are to be paid, then there is no doubt in my mind that the fresh suit can be filed leaving the defendants to realise their costs in accordance with law. Therefore there is no want of inherent Jurisdiction in' the Courts to entertain the fresh suit. When a suit is allowed to be withdrawn with leave to bring a fresh suit under Order 23, Civil P. C.. it should be regarded as never brought. It is available for no purpose. It dons not save or give a fresh start to limitation, nor does it afford a fresh cause of action (vide observation of Suhra-wardy J. in -- 'Becharam Choudhuri v. Purna Chandra', AIR 1925 Cal 845 at pp. 851-852 (FB) (A)). Civil Courts entertain a suit under Section 9, Civil P. C. Therefore, Order 23, Rule 1, does not affect the Jurisdiction of civil Courts to entertain a suit, and it neither confers nor takes away any jurisdiction vested in them. Order 23 does not even lay down that the jurisdiction vested in law will not be exercised unless certain statutory conditions are fulfilled. It is true that the conditions imposed by the Court allowing the plaintiff to institute a fresh suit are binding on the parties, but the statute does not provide consequences which must follow if those conditions are not fulfilled and one must look to some other provision of law for that purpose. If the legislature intended to bar a fresh suit in case the conditions imposed by Court under Order 23, Rule 1(2) are not fulfilled, it could have done so particularly when it proceeds to provide in Sub-clause (3) that if a suit is withdrawn without permission, then a fresh suit in respect of the same subject-matter is barred. I may here state that in my opinion a suit withdrawn with per-mission subject to a condition precedent tan never amount to a withdrawal of a suit without permission even if the terms imposed by the Court are not fulfilled. Once an order is passed under Order 23, Rule 1(2) the provisions of Order 23, Rule 1(3) can never become applicable to that case. It cannot therefore be said that a Court entertaining the fresh suit gets its jurisdiction from the order passed under Order 23, Rule 1(2) and therefore it cannot try it unless the statutory condition subject to which jurisdiction is conferred on the Court must be previously fulfilled. The principles applicable to cases where Courts have no jurisdiction unless the statutory conditions are fulfilled are not applicable to cases like the present one and therefore decisions under Section 80, Civil P. C., or under Clauses of Letters Patent giving jurisdiction to High Courts on the original side are not applicable. At this stage I may refer to the decision by their Lordships of the Privy Council in - 'Ohene Moore v. Akesseh Tayee', AIR 1935 PC 5 (B), wherein it was observed- "It is to be remembered that all appeals in this country and elsewhere exist merely by statute and unless the statutory conditions are fulfilled no jurisdiction is given to any Court of Justice to entertain them." In my opinion this decision has no application to the present case because no such statutory condition has been enacted in Order 23, Rule 1(2) which must be fulfilled before Court gets jurisdiction to entertain the fresh suit. Another aspect of the matter is that this Court has ample power under Section 115, Civil P. C., or Article 227 of the Constitution of India to amend the terms imposed under Order 23, Rule 1(2), whether a High Court calls for the record 'suo motu' or otherwise before or after the institution of the fresh suit in the interests of justice. If this be so the fresh suit filed without fulfilling the conditions imposed by the Court when granting leave must be considered to be validly instituted If the terms are amended by the High Court subsequently removing the conditions precedent Imposed. This result could never be achieved in cost like the case reported in AIR 1935 PC 5 (B).;

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