RAJA TRADERS Vs. UNION OF INDIA

JUDGEMENT

(1.) THE question referred to this Bench is "whether nonpayment of the costs, (which were directed to be paid by the plaint to the defendant when permission was granted under Order 23, Rule 1 (2) of the Code of Civil Procedure for withdrawing from the suit with liberty to institute a fresh suit,) before filing of a fresh suit, renders the suit non tenable, or whether the non-payment of the costs is a mere irregularity and does not affect the tenability of the suit irrespective of the fact whether the costs were paid before or after the period of limitation has expired. " (Parenthesis is mine ).

(2.) THE question is a composite one. While dealing with it we would endeavour to analyse and to give our answer with respect to each component.

(3.) M/s. Raja Traders instituted a suit (Civil Suit No. 6 of 1970) on the small cause side in the Court of the District Judge, Jagdalpur. That suit was against the Union of India in respect of a transaction with the South Eastern railway. The plaintiff realising that a notice under section 80 (b) of the Code of Civil Procedure having not been given to the General Manager of the said railway, but was given to the Chief Commercial Superintendent (Claims) of the said Railway, applied for permission of the Court to withdraw from the suit with liberty to institute a fresh suit on account of the above formal defect. The defendants opposed that application. The trial Court passed the following order:-