GANPAT KINUSHET SONAR Vs. VITHAL BHIKAN PATIL

JUDGEMENT

(1.) IN this second appeal there is a question as to the construction and application of Order XXIII, Rule 1, of the Civil Procedure Code, 1908. The facts are very simple. The defendant executed a promissory note in favour of the plaintiff in June, 1933. IN 1935, according to the plaintiff, there was a reference to arbitration without the intervention of the Court and an award. On June 14, 1935, the plaintiff made an application to file the award under para. 20 of the second schedule to the Code, and on September 18, 1936, he applied for permission to withdraw his application. The application was in these terms:- Plaintiff has made an application in order to have filed an award made between plaintiff and defendant. The applicant has not to proceed with the work of the said application. The applicant has to file a separate suit in the matter of the subject of the award in the application. So he has to withdraw this application. Therefore the applicant has not to proceed with this application. Therefore permission should be given to plaintiff to withdraw the said application, each party bearing its own costs. The order made by the Sub-Judge on this application was- Plaintiff is permitted to withdraw the suit. He should pay the defendant his costs and bear his own. On October 28, 1936, the plaintiff filed the suit from which this appeal arises, firstly, to enforce the award, and, secondly, to recover the amount alleged to be due on the promissory note. The trial Court and the District Judge in appeal have held that the plaintiff's suit is barred altogether by Order XXIII, Rule 1, because the plaintiff obtained no order from the Court giving him liberty to file a fresh suit.

(2.) ORDER XXIII, Rule 1, is as follows: 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 be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim, (4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others.

(3.) THERE are authorities binding on this Court which show that an application to file an award, although it is numbered and registered as a suit, is not a suit for all purposes, e.g. it is not a suit for the purpose of applying the rule of res judicata, Rajmal Girdharlal v. Maruti Shivram (1920) I.L.R. 45 Bom. 329, s.c. 22 Bom. L.R. 1377., and there are several authorities of the Allahabad High Court on the same point. Nor is such an application a suit for the purposes of Section 80 of the Civil Procedure Code: Secretary of State v. Kundan Singh (1932) I.L.R. 13 Lah. 672. As to whether an application to file an award is a suit within the meaning of Order XXIII, Rule. 1, Gauri Shankar v. Maida Koer (1904) I.L.R. 31 Cal. 516. is the only authority. It was there held that such an application is a suit within the meaning of that rule. THERE was no discussion of the point and authorities were not cited. But in the view we take it is not really very material whether an application to file an award is to be regarded as a suit within the meaning of this rule or not. The rule is essentially a rule of procedure, and it would seem that it would be applicable under Section 141 of the Code whether an application is to be regarded as a suit or not.