- (1.) THE plaintiffs claiming to be heirs of one Hira Nand filed a suit on 27-8-1945 for joint possession of about 16 kanals of land situated in village Taiwandi Bharth, tehsil Batata. On 27-11-1947 they were allowed to withdraw the suit with liberty to file a fresh suit on condition that Rs. 6/- as costs were paid to the defendants. The plaintiff then filed a second suit on 3-10-1949 for the same relief against the same defendant and on the same cause of action but without complying with the condition of payment of costs. This suit was dismissed on 20-1-1950 on the ground that the plaintiffs had not paid the conditional costs before filing the suit. After depositing these costs the plaintiffs brought the present suit on 1-3-1950, for the same relief on the same cause of action and against the same defendants. The defendants 'inter alia' pleaded that the present suit was not maintainable in view of the dismissal of the second suit. The trial Court rejected the defence plea and on the merits decreed the suit. The defendants appealed and the lower appellate court upheld the plea of the defendants and without deciding other issues dismissed the suit. The plaintiffs have filed this second appeal in this Court. This appeal came up before me and considering the importance of the question involved I referred it to a larger Bench. It has now been fixed before us for decision.
(2.) THE only point that requires determination in this appeal is, whether or not the third suit is competent when it is filed after complying with the condition imposed upon the plaintiffs under Order 23, Rule 1 (2) (b), Civil Procedure Code, although the second suit filed without complying with the condition had been previously dismissed.
(3.) NOW Order XXIII Rule I reads- "1. (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied- (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, 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. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub-rule (2), he shall be liable for such costs as the Court may award and shall he precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (4) **" And Order XXIII Rule 2 reads- "2. In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. " These two provisions of law completely lay down the law governing rases of withdrawal of suits and abandonment of claims. These provisions are exhaustive on the subject. Order XXIII, Rule 1 (1) states that the suit may be withdrawn or a claim may be abandoned. This sub-rule does not create any new right and merely recognises the plaintiff's right to withdraw a suit or to abandon a claim (vide mulla's Civil Procedure Code page 968 ). Order XXIII, Rule 1 (3) has no application to the present case as the first suit was withdrawn after obtaining permission under Order XXIII, Rule 1 (2) (b ). In the present case we are concerned only with Order XXIII, Rule 1 (2) (b ). This provision does not deal with any proceedings taken after the required permission, on certain terms, if any has been granted. This is in contrast with the provisions of order 23, Rule 1 (3) which specifically lays down that fresh suit would not be competent. It cannot be said that Order XXIII, Rule 1 (3) becomes applicable if the fresh suit when filed without complying with the conditions of the order made under Order xxiii, Rule 1 (2) (b) has been dismissed. It was not so argued before me, nor do I know of any case in which it has been so held. As Order XXIII Rule 1 (2) (b) docs not specifically or by necessary implication deal with the situation like the one in the present case, it is necessary to look to some other principle of law for this purpose.;