BHAGABAN DAS MAHESRI Vs. PROSANNA DEV RAIKOT

JUDGEMENT

(1.) This appeal has been preferred by defendant 4 in a suit which was instituted against him and some other defendants for recovery of khas possession of certain lands, it being alleged in the suit that the other defendants were tenants-at-will under the plaintiff and that defendant 4 was a subtenant under them. The order from which this appeal has been preferred is an order passed by the Subordinate Judge of Jalpaiguri by which the learned Judge, having set aside the decision of the Munsif dismissing the suit has remanded the suit for decision on the merits on the evidence in the record and on such further evidence which the parties might like to produce in the suit. The Subordinate Judge has also given a direction that if an opportunity was asked for by any of the parties to adduce any further evidence the trial Court should give him that opportunity. In order to understand the contentions which have been put forward in this appeal it is necessary to set out a few facts.

(2.) In 1922, the plaintiff of the present suit had instituted another suit against the present defendants or rather against three of them and the predecessors of the others. That suit was instituted on service of notice on all the defendants who were made parties to the suit, with the exception of the heirs of one Kissen Chand, who had been served with notice but had died before the suit has been instituted. On this defect being found, application was made for withdrawing, the suit with liberty to institute a fresh one. This application was granted sometime in July 1923, when an order was-. made and permission to withdraw with liberty to institute a fresh suit was given on condition that the plaintiff would pay the costs of the defendant within 15 days from the date when such costs-would be notified in the order sheet. It was further ordered that on default of such payment the suit would be considered as dismissed with costs. On 14 July 1923, it was noted in the order sheet and notified to the parties that the costs of defendant 3 amounted to rupees-16-11-6. On 28 July 1923, the plaintiff deposited Rs. 16-9-3; that is to say, the amount deposited was short by 2 annas 3 pies. Thereafter, the plaintiff in July 1927 served fresh notices upon the defendants and on the basis of those notices instituted the present suit on 25 April 1929. The reliefs claimed in, both the suits were the same, namely, the relief in the shape of recovery of khas possession. One of the grounds taken in defence in the present suit was-that by reason of the order which the Court had made in the previous suit and which was not fully complied with as stated above, the present suit was not maintainable. This matter formed the subject of an issue, namely, issue 2, which however was worded in these words: "Is the suit barred by resjudi- cata?" Upon the other points that were taken several other issues were-framed.

(3.) The Munsif dismissed the suit holding that it failed on the ground that the-condition upon which liberty was reserved to the plaintiff to institute a fresh suit after his withdrawal of the previous one not having been complied with, the previous suit must be regarded as having been dismissed without any liberty reserved and that consequently the present suit was not maintainable. The Munsif did not consider it necessary; to deal with the other issues which had been framed. The plaintiff thereupon preferred an appeal. The Subordinate Judge who dealt with that appeal held. that the dismissal of the previous suit was no bar to the institution of the present one and overruling the decision of the Munsif on issue 2 as stated above be set aside the decree which the Munsif had made and remanded the case for trial by the Munsif with the directions to which we have already referred. From this decision, as already stated, defendant 4 has preferred the present appeal.