AMBUBAI HANMANTRAO Vs. SHANKARSA NAGOSA

JUDGEMENT

(1.) The plaintiff file ft Suit No. 143 of 1917 in the Subordinate Judge's Court of Hubli on a certain cause of action. Ho withdrew that suit with permission of the Court under Order XXIII, Rule 1, alleging that on account of the mis-reading of one of the issues framed by the Court he was not refuly with his evidence on the day fixed for trial of the case. The Court made the following order :- on condition that plaintiff pays defendants costs and bears his own costs and pays defendants costs before filling a fresh suit, ho is under the circumstances mentioned in the application, permitted to withdraw with permission to file a fresh suit.

(2.) Therefore the condition precedent to his being allowed to tile a fresh suit was that he should pay defendants costs. However, without paying the defendants costs, he filed fresh Suit No. 92 of 1919. He paid the costs three days before the day fixed for the hearing of the evidence in the ease. The Court dismissed the suit on the ground that the suit being filed without, previous costs having been paid was bad ab initio. This order was confirmed in appeal. The plaintiff, however, considering that the permission given him by the Court in Suit No. 143 of 1917 was still surviving in spite of the second suit being dismissed, filed this third suit on the same cause of action.

(3.) It was argued that the dismissal of the previous suit amounted to rex judicata, and if that argument did not succeed, it amounted to a withdrawal without permission under para 1 of Order XXIII, Rule 1, Civil Procedure Code. Both these arguments failed to convince the Subordinate Judge who held that the present suit was maintainable, and dealing with the further issues, passed a decree in favour of the plaintiff for possession.