DHARMVIR Vs. RADHA KISHAN

JUDGEMENT

(1.) This is defendant's appeal directed against the order of the first Appellate Court by which appeal filed by the plaintiff was allowed and the suit was remanded to the trial court for decision on merits.

(2.) One Tej Ram sold agricultural and measuring 74 K 12M to Dharmvir (appellant herein and the Sale Deed dated 20.1.1979 was executed in favour of the appellant, Radha Kishan (respondent herein) claims himself to be the adopted son of Tej Ram. He filled suit for declaration though his natural father Radhey Seam challenging the sale of land in dispute on the ground that the same was joint Hindu family property. The sale was also stated to be without consideration and without any legal necessity. When the suit No. 106 was pending, an application was filed on behalf of the plaintiff that since there was some format defect in the suit, the same be dismissed as withdrawn with liberty to file afresh one on the same cause of action under sub -rule (3) of Order 23 Rule I of the Civil Procedure Code. On his application, the following order was passed by the trial Court: -

(3.) Thereafter, on 22.11.1982, the plaintiff filed a frosh suit though his mother, namely Nihaldey. In the plaint, no mention was made with regard to order dated 17.7.1980. Plaintiff also failed to make my averment with regard to deposit of payment of costs which was made a condition precedent from bringing another suit on the same cause of action. In the written statement, a preliminary objection was taken up by the defendant to the effect that the suit was not maintainable on the ground of non -payment of costs by the plaintiff Plaintiff, in his replication, just denied the averment. He did not choose to disclose the order dated 17.7.1990. At the same time, he did not even offer to make the payment of costs at that stage. Trial Court framed many issues and one them, i.e. Issue No, 9 was as to whether the suit is not maintainable because of non -payment to costs which were imposed upon him in the earlier suit? Trial court treated Issue No. 9 as a preliminary issue. On this issue, the trial Court found that the payment of costs was a condition precedent and since costs were not paid before filing the second suit, the same is not, maintainable and dismissed it. On appear learned District Judge, Bhiwani, relying on the case of M/s. Konkon Trading Company v/s. Suresh : AIR 1986 SC 1009, set aside the order of the trial Court and remanded the case back to trial Court with a direction that the trial Court shall fix time for the payment of costs and if the plaintiff fails to pay the costs within such extended time, the trial Court shall proceed with the suit in accordance with law. The order is being challenged here in this appeal.