AWADABAI Vs. PARVATI ALIAS DRUPADABAI

JUDGEMENT

(1.) THE first respondent, Parvati alias Drupadabai w/o Ramchandra Borate, (hereinafter referred to as the plaintiff) filed Civil Suit No. 15 of 1974 in the Court of the learned Civil Judge. Junior Division, Dahiwadi for partition of certain property and possession of her separate share together with mesne profits. The said suit was dismissed by the learned trial Judge by an order dated November 29, 1978 on the ground that it was not tenable without payment of the costs of the previous Suit No. 53 of 1972 which was withdrawn by the plaintiff conditionally. The matter was taken in appeal in the District Court at Satara by the plaintiff who filed Civil Appeal No. 2 of 1979 impugning the order dated November 29, 1978 passed by the learned trial Judge. The learned Assistant Judge, Satara, who heard the said appeal allowed it as he was of the opinion that the order passed by the Judge while allowing the withdrawal of the original suit was not properly interpreted by the Civil Judge, Junior Division, Dahiwadi. He accordingly set aside the order passed by the learned trial Judge and remanded the matter to the trial Court for fresh trial in accordance with law. The judgment and order was recorded by the appellate Court on June 9, 1981 which has been impugned in this appeal by the original defendant Nos. 8 to 12.

(2.) NOW, the undisputed facts are that the previous suit No. 53 of 1972 was withdrawn by the plaintiff on August 18, 1973 by filing an application (Exh. No. 40) on which the following order was passed.

(3.) IT is no doubt true that when the second suit was filed, the plaintiff had not paid 1/4th costs to the defendants as was ordered by the Court while allowing the withdrawal of Suit No. 53 of 1972 and the arguments advanced on behalf of the parties were based on the provisions of Order XXIII, Rule 1 of the Civil Procedure Code. In the case of M/s. Konkan Trading Company (supra) a similar situation had arisen and while interpreting the provisions of Order XXIII, Rule 1, their Lordships of the Supreme Court, after considering all the decision on the point, came to the following conclusions :---