GURAN DITTA MAL Vs. BANNA MAL

JUDGEMENT

(1.) The plaintiffs brought a suit on 27th August, 1946 for possession of a piece of land as heirs of one Hira Nand. On 11th August, 1947 they were allowed to withdraw the suit with liberty to file fresh suit on a condition that Rs. 6 as costs were paid to the defendants. The plaintiffs then on 3rd October, 1949 filed a second suit for the same relief against the same defendants without paying the costs and this suit was dismissed on 20th January, 1950 on the ground that the suit was not maintainable in as much as the condition precedent to the leave granted under Order 23, rule 1(2), Civil Procedure Code, had not been complied with, i.e., the costs had not been paid before the institution of the suit. The plaintiffs then paid the costs and filed the present suit on 1st March, 1950 for the same relief on the same cause of action against the same parties.

(2.) The defendants inter alia pleaded that this third suit was not maintainable. The trial Court decreed the suit after holding that the suit was maintainable and after giving findings on the merits. The defendants appealed and the learned Senior Subordinate Judge without going into the merits of the case dismissed the suit holding that the third suit was not maintainable and it is against this decision that the plaintiffs have filed the present second appeal in this Court.

(3.) The only point involved in this appeal is whether the third suit is maintainable in the circumstances mentioned above. Mulla in his commentary on the Civil Procedure Code has stated the legal position on page 975 to be -