NANDA KUMAR MUKHERJEE Vs. HARICHARAN GANGULY

JUDGEMENT

(1.) An objection under Sec. 47 of the Code of Civil Procedure which was registered as Misc. Case No. 37 of 1978 of the 2nd Court of the learned Subordinate Judge, Hooghly , having been allowed by an order dated February 16, 1982, the decree holders have preferred the present revision -al application. The application is being heard on notice to and on contest by the judgment debtor. One Harihar Mukherji, the predecessor -in -interest of the present petitioners filed Title Suit No. 33 of 1968 in the 2nd Court of the learned Subordinate Judge, Hooghly, for recovery of possession and for mesne profits against three defendants including the present judgment debtor respondent. The case made in the plaint was to the effect that defendant No. 3 who was a nephew of the plaintiff was left to look after the suit property on his behalf and the said defendant No. 3 inducted the defendant No. 1 the present judgment debtor as a monthly tenant in the suit premises. As no rent was paid by the defendant No. 1, the plaintiff filed Title Suit No. 286 of 1962 in the 2nd Court of the learned Munsif, Serampore, for eviction against the defendant No. 1 on the ground of default. In that suit in a proceeding under Sec. 17 of the West Bengal Premises Tenancy Act, the learned Munsif found that the defendant No. 1 was not a tenant under the plaintiff. The plaintiff then withdrew the suit with leave of the court and then instituted the present suit for recovery of possession of the suit premises from defendant Nos. 1 and 2 who were in possession of the suit premises as trespassers and for mesne profits. This suit succeeded and was decreed on contest against defendant Nos 1 and 2 with costs and against defendant No. 3 without costs.

(2.) The decree for recovery of possession being put into execution an ob rejection was raised under Sec. 47 of the Code of Civil Procedure to the effect that the decree under execution being void and without Jurisdiction is not executable. It was claimed to be so on the ground that in granting permission to withdraw the previous suit, namely. Title Suit No. 286 of 1962 the court permitted the plaintiff to withdraw the suit with liberty to sue afresh on payment of costs which was made condition precedent to the filing of the fresh suit and since such costs were not paid the subsequent suit, namely, Title Suit No. 33 of 1968 was not maintainable so that the decree passed therein was void and without Jurisdiction . In disposing of this objection the learned judge in the executing court found that costs of the earlier suit, namely, Title Suit No 286 of 1962 were not deposited or paid when the subsequent suit, in which the decree under execution was passed, was filed. On such a finding he concluded that because of such a default the decree hold -res had no locus stand to file the present suit and the decree passed therein must be treated as non est. Feeling aggrieved, the decree holders have preferred the present revisional application.

(3.) Having heard the learned advocates, we are unable to sustain the order passed by the learned Subordinate Judge. The learned Subordinate Judge failed to appreciate that the bar, if any, to the subsequent suit is under Order 23 Rule 1(4) of the Code of Civil Procedure which precludes the plaintiff from instituting any fresh suit only in the event he withdraws from the previous suit without the permission referred to in sub -rule (3). The bar under sub -rule (4) on its terms does not arise since necessary permission was obtained. The bar, if any, is on the terms of the order granting the permission. Such bar, however, does not stand in the way of plaintiff filing a fresh suit. This court in the case of Abdul Aziz v/s. Ibrahim 11.H. 1904 (31) Calcutta 965 laid down that where leave was granted to the plaintiff to bring a fresh suit on payment of the defendants cost, it was held that though payment of cost was condition precedent to the institution of a second suit non payment of cost before the institution of the second suit did not render the fresh suit bad ab initio. The preponderance of judicial opinion is in favour of the said view and the default on the part of the plaintiff to pay such costs has been held to be an irregularity not affecting the Jurisdiction of the court in entertaining a suit for not fulfilling such a condition precedent. Reference may be made to the decisions in the case of Raja Traders v/s. Union of India : A.I.R. 1977 M. P. 54, and Mela vs Labhu, A.I.R. 1955 Punjab 97. Such being the position of law we seriously doubt the correctness of the view taken by the learned Subordinate Judge in holding the decree under execution to be one as non est.