MADHODIH COAL SYNDICATE Vs. JUGAL KISSORE ROY

JUDGEMENT

(1.) On the second day of the hearing of this case learned Counsel on behalf of the plaintiff said that on further consideration it appeared that want of jurisdiction in this Court was a fatal objection and he therefore asked under Order 23, Civil P.C., for leave to withdraw the suit with liberty to institute a fresh suit. Learned Counsel of course was prepared on behalf of his client to submit to an order that his client should pay the costs, and an order in those terms was made.

(2.) Mr. Khaitan on behalf of the defendant asked that it should be a term of the order that payment of the costs of this suit should be a condition precedent to the filing of a fresh suit on the same cause of action. In support of his contention he referred me to Shital Prosad V/s. Gaya Prosad [1914] 19 C.L.J. 529, but I was not convinced that there were grounds for making an order in the terms desired and I refused so to do.

(3.) My attention was not then drawn to Rule 26, Chap. 16, of the rules of this Court which provides that in circumstances such as these the order shall be drawn up so as to make the payment of the costs of the suit a condition precedent to the plaintiff bringing a fresh suit unless the Court or Judge otherwise directs. It appears that in drawing up the order this rule has not been overlooked, and it has been pointed out that in the absence of any direction to the contrary, a provision to that effect must be inserted in the final order. The matter has therefore now been set down to be mentioned for the point to be further considered.