SHIDRAMAPPA MUTAPPA BIRADAR Vs. MALLAPPA RAMCHANDRAPPA BIRADAR

JUDGEMENT

(1.) This appeal raises an important question as to the effect of non-observance of the condition under which a suit is allowed to be withdrawn with liberty to bring a fresh suit under Order XXIII, Rule 1, of the Civil Procedure Code.

(2.) On August 28, 1920, a suit based on substantially the same cause of action as the present one in which the second appeal arises, was allowed to be withdrawn. The order was as follows:-- The plaintiff is allowed to withdraw from the suit with liberty to bring a fresh suit in respect of the same cause of action. The plaintiff to pay the defendants costs. The plaintiff will not be allowed to bring a fresh suit unless he pays the defendants costs of this suit.

(3.) On June 25, 1925, a second suit No. 354 of 1925 was brought on the same cause of action without payment of the costs, and, therefore, without fulfilling the condition attached to the permission given to bring a fresh suit. The order passed in that suit was as follows:-- The plaintiff is a minor. In view of this and the defects mainly formal which are apparent I order the plaintiff to withdraw with liberty to bring a fresh suit for the same cause of action, Plaintiff to pay the defendants costs, and bear his own. Three days after the suit was withdrawn, that is, on June 24, 1926, the costs in the first suit were paid to the defendants, and, on June 29, 1926, the present suit was instituted without paying the costs of the second suit.