BHARAT Vs. RAM PRATAP

JUDGEMENT

(1.) K. N. Misra, J. This appeal was heard by one of us brother K. N. Goyal, J. who after noticing that there was some conflict in the decisions of single Judges on the legal question involved in this appeal referred this second appeal to be decided by the Division Bench. This appeal has, thus, come up before us for decision.

(2.) BRIEFLY stated the facts of the case are that the plaintiff-appellant had filed a suit No. 239 of 1964 for declaration against the defendant-respondents and in that suit an application under O. 23 R. 1 (2) Civil P C (for short C. P. C.) (as it stood prior to its amendment) for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action was moved. This application was allowed by order dated 28- 9-1967 passed by Munsif, North Sultanpur. The operative portion of the order reads: - "the application is therefore allowed while permitting the plaintiff to withdraw the suit. The plaintiff will pay up the entire cost of this suit to the defendant. "

(3.) ON the consideration of the evidence on record let in by the parties, the trial court decreed the suit of the plaintiff holding that the plaintiff is owner of the property in suit, that the suit is not barred by principle of res judicata and that the property in suit is identifiable on the spot. Aggrieved by the judgment and decree dated 23-9-1968, defendant 2 preferred appeal which was heard and allowed by the lower appellate court vide judgment and order dated 7-9-1972 and the suit of the plaintiff has been dismissed as being barred by R. 1 (3) of O. 23, C. P. C. Since this plea regarding the suit being barred under the said provision was raised at the appellate stage by the defendant-appellants, and, as such, the lower appellate court directed the parties to bear their respective costs of both the courts. Aggrieved by it the plaintiffs preferred the present second appeal.