DIPAK DAS Vs. DHARJYANDHAN DEB

JUDGEMENT

(1.) This is an appeal against the appellate judgment and order dated 22.3.96 passed by the learned District Judge, West Tripura in Title Appeal No. 30/94 arising out of judgment and decree dated 21.2.94 passed by the learned Munsiff, Khowai, West Tripura in Title Suit No. 30/90.

(2.) The o.nly point for determination in the present appeal is in respect of the power of the trial Court in imposing conditions while allowing the plaintiff to withdraw from the suit with liberty to bring a fresh suit under sub-rule 3 of Rule 1 of ORDER XXIII CPC. The point involved in this appeal being only a question of law, the learned counsel on both sides have submitted to the Court for disposal of the present appeal at the stage of admission without even calling for the records from the Courts below and as such I am inclined to dispose of the present appeal at this stage.

(3.) Facts which are necessary for disposal of the present appeal are that the plaintiff (respondent No. 1 in this appeal) brought a suit being Title Suit No. 7/88 of the Court of Munisiff, Khowai, West Tripura, against the present appellant No. 1 and the proforma respondent Nos. 2 and 3 as defendants for title over the suit land and for eviction of the defendants therefrom. The aforesaid suit was withdrawn under sub-rule 3 of Rule 1 of ORDER XXIII CPC with a liberty to institute a fresh suit in respect of the same subject matter. At the time of granting the permission. the trial Court imposed a condition tfor filing a fresh suit within a period of 2 (two) months from the date of order and also to pay a cost of Rs. 50/- (fifty) to the defendants. The said order was passed on 18.6.1990. Thereafter, the plaintiff filed a fresh suit being Title Suit No. 7/88 on 14.9.90. After hearing on full contest, the trial Court dismissed the suit on the ground that the fresh suit was brought beyond the period of 2 (two) months which was in violation of the condition imposed under the order dated 18.6.90 and hence dismissed the suit vide judgment and decree dated 21.2.94. Against the said judgment and decree of the trial Court the plaintiff brought the Title Appeal being No. 30/94 of the Court of the District Judge, West Tripura, Agartala and the appellate Court set aside the decree of the trial Court and remanded the case to the trial Court for retrial holding that the trial Court was not justified in dismissing the suit on a mere technical ground of violation of the condition imposed by the Court at the time of allowing the withdrawal of the suit.