- (1.) THE appeal is directed against an order made by Sabyasachi Mukharji J. on July 24, 1969, by which the learned judge corrected, as he himself says in his judgment, or modified, as is contended by the appellant, an earlier order he had made. On November 6, 1968, a suit was instituted by the respondent against the appellant Soon thereafter, the appellant made an application asking for leave to withdraw the suit with liberty to file a fresh suit on the same cause of action. On that application an order was made on December 12. 1968. The order as pronounced by the learned Judge was as follows : "leave granted to the petitioner to withdraw the suit and with liberty to file a fresh suit on the same cause of action. It is further ordered that the applicant do pay costs of the application assessed at Rs. 170/-, certified for counsel. " the order after it had been drawn up and settled, read : "it is ordered that the plaintiff company be at liberty to withdraw from this suit with liberty to it to file a fresh suit on the same cause of action (upon payment of the costs of the suit incurred herein as a condition precedent to the defendant) and it is further ordered that the plaintiff company do pay to the defendant company its costs of and incidental to this application assessed at Rs. 170/-and this Court doth certify that this is a fit application for employment of advocate. "
(2.) IT is clear that the order as drawn up and settled differs from the order as pronounced, in one important respect, that is to say, in the matter of direction for payment of costs. The reason will be found in Rule 26 of Chapter 16 of the Original Side Rules of the High Court. That rule provides : "where a suit is allowed to be withdrawn with liberty to bring a fresh suit in respect of the same subject matter, unless the Court or a Judge shall otherwise direct, the order shall be drawn up so as to make the payment of the costs of the suit a condition precedent to the plaintiff bringing a fresh suit"
(3.) THE order as settled was signed by the Assistant Registrar on or about january 30, 1969. It is not in dispute that the order has not yet been filed.;