MELA Vs. LABHU

JUDGEMENT

(1.) This second appeal raises a question as to the effect of non-observance of the conditions under which a suit is allowed to be withdrawn with liberty to bring a fresh suit.

(2.) Mela and Ganda instituted a suit on I5-I-1949 for a declaration that the entries in the revenue papers are wrong and that in fact the plaintiffs are the owners and are as such in possession of the disputed land and the defendants have no rights therein. This suit was, however, withdrawn under Order 23, Rule 1, Civil P.C.. and the trial Court on 30-11-1949 passed an order granting permission to the plaintiffs to withdraw the suit and they were allowed to institute a fresh suit in respect of the same subject-matter. The plaintiffs were, however, ordered to pay costs of the suit to defendant 1 and counsel's fee was assessed at Rs. 10/-. But it was ordered that the plaintiffs will not have the right of filing a fresh suit without first paying the costs of the present suit. The plaintiffs after three days instituted the present suit on 3-12-1949. The next date fixed in the case was 3-2-1950 when, the defendants filed their written statements and objected to the competency of the suit on the ground that the costs of the previous suit had not been paid. A preliminary issue was framed by the trial Court on the same day and at about the same time the plaintiffs made a written application for permission to deposit the costs of the suit and this permission was granted and the amount was deposited the next day. All these above facts are admitted by the parties to be correct, and the ' learned counsel for the defendants respondents has also admitted that if the suit had been filed on 4-2-1930 after deposit of the costs, no objection like the present one could have been raised 011 any ground whatsoever. Both the lower courts have dismissed the suit on the ground that the present suit was not competent inasmuch as the costs had not been paid in accordance with the-order dated 30-11-1919 before institution of the present suit, and the plaintiffs have come to this Court in second appeal, and I have heard Mr. Shamair Chand, the learned counsel for the appellants in support of it.

(3.) Order 23, Rule 1, Civil P. C., reads as far as it is relevant in the present case, as follows--