JADU TELI Vs. MAHBOOB RAZA KHAN

JUDGEMENT

(1.) This is a defendants appeal from, an order remanding a suit, ft appears that the plaintiff at first brought a suit in July 1930 and then applied to withdraw the suit with liberty to file a fresh suit. The Court granted the application in the following terms: The suit be withdrawn and be filed afresh. But before filing fresh suit costs of defendant amounting to Rs. 20 will be deposited in the Court if the same have not been recovered by the defendant earlier.

(2.) In August 1930, the plaintiff filed a fresh suit without having first deposited the costs of the previous suit. Some written statements were filed in which no objection as to this effect was taken. On 3 December 1930, the plaintiff deposited the amount in Court. Then a written statement was filed on 5th December 1930, in which the point was raised that the amount not having been deposited before the institution of the suit, the suit was not maintainable. The Court however did not dismiss the suit forthwith. On this objection it framed issues and recorded evidence. Later on in May 1931, the plaintiff's vakil on seeing a case of this Court reported in , Rachhpal Singh V/s. Sheo Ratan Singh, applied to the Court that the suit had been filed under the impression that the costs could be deposited after the institution, but in view of that reported case there was an apprehension that the suit would fail. It was therefore prayed that permission should be granted to withdraw the suit with liberty to bring a fesh suit. On 23rd May 1931, the Court passed the following order: I therefore allow the plaintiff to withdraw the suit with permission to bring a fresh suit on payment of Rs. 20 that had been already ordered the Court in a previous suit and on payment also of Rs. 50 as costs before filing the fresh suit.

(3.) Next day the plaintiff replied that he was unable to pay all these costs and prayed that the suit be tried on its merits. The Court ordered that the case be put up in the presence of the vakils for the parties on the 8 June. On that date the defendants vakil said that they had no objection to the case being restored and disposed of on its merits. The case was then restored. The Court of first instance however dismissed the suit on the ground that the costs had not been deposited before filing the suit. On appeal the learned Judge remanded the case for trial on the merits. He was under the impression that he had power to extend the time inasmuch as no date for payment of the costs had been fixed in the first suit. Accordingly he fixed the 3 November, as the date by which the deposit should have been made. The defendant comes up in appeal before us and it is urged on his behalf that the suit is not maintainable.