GURAN DITTA MAL Vs. BANNA MAL

JUDGEMENT

(1.) THE plaintiffs claiming to be heirs of one Hira Nand filed a suit on 27-8-1945 for joint possession of about 16 kanals of land situated in village Taiwandi Bharth, tehsil Batata. On 27-11-1947 they were allowed to withdraw the suit with liberty to file a fresh suit on condition that Rs. 6/- as costs were paid to the defendants. The plaintiff then filed a second suit on 3-10-1949 for the same relief against the same defendant and on the same cause of action but without complying with the condition of payment of costs. This suit was dismissed on 20-1-1950 on the ground that the plaintiffs had not paid the conditional costs before filing the suit. After depositing these costs the plaintiffs brought the present suit on 1-3-1950, for the same relief on the same cause of action and against the same defendants. The defendants 'inter alia' pleaded that the present suit was not maintainable in view of the dismissal of the second suit. The trial Court rejected the defence plea and on the merits decreed the suit. The defendants appealed and the lower appellate court upheld the plea of the defendants and without deciding other issues dismissed the suit. The plaintiffs have filed this second appeal in this Court. This appeal came up before me and considering the importance of the question involved I referred it to a larger Bench. It has now been fixed before us for decision.

(2.) THE only point that requires determination in this appeal is, whether or not the third suit is competent when it is filed after complying with the condition imposed upon the plaintiffs under Order 23, Rule 1 (2) (b), Civil Procedure Code, although the second suit filed without complying with the condition had been previously dismissed.

(3.) NOW Order XXIII Rule I reads-