AMIR HUSHEN Vs. ABDUL BARI KHAN

JUDGEMENT

(1.) This appeal is on behalf of defendant 1, and it arises out of a suit commenced by the plaintiff for recovery of possession of the lands in suit on establishment of his jote right to the same. The plaintiff's case was that the disputed land appertained to Sikimi Taluk Rastum Khan which was at the material time owned by one Rangu Mia. The plaintiff took settlement of the land from Rangu Mia on 17 Kartick, 1326 B.S., and was in possession of the same till Falgun 1348 B.S., when he was dispossessed from it by defendant 6 in collusion with the other defendants. The defence was that the plaintiff had no title to or : possession of the land in suit and he never took settlement of the same Rangu Mia's interest in the taluk was sold on 25th July 1922 and was purchased by the Das's who were represented by defendants 4 to 7 in the suit. Defendant 1, it is alleged, took settlement of the land from defendant 4 and his cosharers on 25 Bhadra, 1333 B.S., and was in possession of it since then. A further point raised, was that the plaintiff instituted a previous suit claiming identical reliefs against the defendants; he was allowed to withdraw the suit with liberty to institute a fresh suit on the same cause of action, and payment of costs to the defendants was made a condition precedent to the institution of the fresh suit; these costs not being paid prior to the institution of the suit or even before the suit came on for trial, the condition upon which the leave was granted was not complied with and consequently it became inoperative and barred the present suit.

(2.) The trial Court decided the suit in favour of the defendant. It held that the plaintiff failed to establish his title to the disputed property and it was further of opinion that the suit was barred under Order 23, Rule 1(3), Civil P.C. On appeal the judgment was reversed and the plaintiff's suit was decreed. It is against this decision that the present second appeal has been preferred. The first question for our consideration in this appeal is as to c whether the present suit is barred by reason of the plaintiff's failure to comply with the condition upon which the previous suit was allowed to be withdrawn and leave was given to institute a fresh suit on the same cause of action. It appears from the records that the plaintiff had instituted an earlier suit namely, Title Suit No. 105 of 1938, against these defendants and the suit was based on identically the same cause of action. The suit was withdrawn with liberty to institute a fresh suit on 13 December 1938. The order made by the Court stands as follows: That the plaintiff be permitted to withdraw from the suit with liberty to sue afresh in respect of the same cause of action, if not otherwise barred by limitation. The contesting defendants do get costs which are made condition precedent to the institution of a fresh suit.

(3.) The present suit was filed on 18 January 1939 and was fixed for hearing on 9 May 1939. On that day the hearing commenced and both parties adduced whatever evidence they had to adduce. The further hearing of the suit was adjourned till the day following when the arguments were to be heard. On that day, that is to say, on 10 May 1939 the plaintiff deposited the costs in Court. It is argued by the learned advocate for the appellant that the non-payment of costs prior to the institution of this suit made the suit incompetent under the provisions of Order 23, Rule 1(8), Civil P.C. On the question as to what is the legal effect of non-compliance with the order relating to payment of costs in cases of this description, there is unfortunately a divergence of judicial opinion and the decisions of our Court itself cannot be said by any means to be uniform. In Shital Prosad V/s. Gaya Prosad ( 14) 1 A.I.R. 1914 Cal. 207 which is one of the leading decisions of our Court on the subject, it was laid down by Sir Lawrence Jenkins that if a suit was allowed to be withdrawn by a; party with liberty to bring a fresh suit on the same cause of action on condition of paying costs to the defendant, the second suit could not be dismissed for non payment of costs, and that inasmuch as the permission to withdarw the suit and bring a fresh suit was made conditional on payment of costs, the old suit must be held, to be still pending and undisposed of so long as the costs were not paid. In that case there was no time limit specified by the Court within which the costs were to be paid, nor was it ordered that the suit would stand dismissed in case of default. As there was no final order deter.mining the suit, his Lordship was of opinion that the first suit must be held to be still pending. This view was followed by the Patna High Court in Muhammad Afzal V/s. Laohman Singh ( 26) 13 A. I. R. 1926 Pat. 409 In the Patna case, a period was specified within which the payment of costs was to be made and it was held by the learned Judges that the Court had power under Section 148, Civil P. C., to extend the prescribed time.