GOLLAPUDI SESHAYYA Vs. NADENDLA SUBBAYYA

JUDGEMENT

(1.) The respondent in both these appeals is one Subbayya, the adopted son of Ramachandrudu. He was dissatisfied with his father's misconduct and spendthrift ways and, consequently, wanted to file a suit for partition of the family property. As he had not sufficient funds to finance this litigation, he entered into relations with the appellant Seshayya who is a private vakil. On the 1 of November, 1916, Subbayya executed a sale deed in favour of Seshayya for Rs. 1,000, under which he sold one-half of his share in the family properties. Admittedly the consideration was fixed at a low figure on the ground that Subbayya's father was wasting the family property and alienating the same and that consequently the properties that would be recovered for Subbayya's share might be considerably less than what he really ought to have. It is found that Seshayya paid a sum of Rs. 600 towards the consideration for the sale deed, and a suit was filed by Subbayya and Seshayya jointly in 1918. A decree was obtained under which Subbayya was to get as his half share of the property all the properties which had not been alienated by his father, leaving the validity of the alienations undetermined. Before the decree was passed Subbayya agreed to certain items being decreed in favour of Seshayya and the remainder was to fall to his share. Subsequently Subbayya appears to have thought that he had been defrauded and he filed a suit, O.S. No. 641 of 1919, to set aside the sale deed in favour of Seshayya. That suit was withdrawn with leave to bring a fresh suit on condition of Subbayya paying the costs of the suit. Subbayya then filed his present suit, O.S. No. 195 of 1921, in which he again seeks to set aside the sale deed. Seshayya has also filed a suit O.S. No. 505 of 1921 in which he seeks to recover the property decreed to him in the prior litigation alleging that he obtained delivery through Court of the property decreed to him but that subsequently the plaintiff has obstructed his enjoyment. Subbayya's suit has been decreed and at the same time Seshayya has been given a charge upon the properties for Rs. 600 with interest. Seshayya's suit for possession has been dismissed. Hence these two appeals.

(2.) The first point for consideration is whether Subbayya's suit is not barred by reason of Order 23, Civil Procedure Code, for it is admitted that he did not pay the costs of his first suit until after the close of the trial in the present suit; and it is contended that he is precluded from filing a fresh suit until he has complied with the condition imposed. In Fischer V/s. Nagappa Mudali (1909) ILR 33 M 258 it was held, that when an order had been made giving permission to bring a fresh suit on condition of paying the costs before a specified date, a subsequent suit was barred if the costs had not been paid by that date. That case differs from the present in that the date was specified for payment of costs, whereas the order in the case under consideration does not specify any date. Without expressing any opinion as to the correctness of the decision in Abdul Aziz Molla V/s. Ebrahim Molla (1904) ILR31C 965 that case was distinguished. In that case it was held that subsequent payment of costs was sufficient to warrant the reception and trial of a fresh suit which had been allowed to be brought on condition of those costs being paid. In that case the costs were paid before the suit was tried. This has been followed in a later case reported in Shital Prosad V/s. Gaya Prosad (1914) 19 CLJ 529 where the question is discussed somewhat fully and the reasoning adopted for the conclusion is as follows:-"It is said that, inasmuch as permission to withdraw and bring a fresh suit is made conditional on a certain payment, the original suit cannot be deemed to be withdrawn until those costs have been paid and it must, therefore, be deemed to be a pending suit which becomes disposed of as soon as payment is made." This case was followed in Kuldip Singh V/s. Kuldip Choudhuri (1917) 3 Pat. L.J. 63 and also in Deb Kumar Roy V/s. Debnath Barnes (1920) 64 IC 738, but I can find no authority in this Court for holding this view which, with all respect, appears to me to be incorrect. These cases all assume that the permission granted by the Court is not only permission to bring a fresh suit but also permission to withdraw the first suit, and that consequently until the condition is fulfilled the first suit is pending. This seems to me to overlook the provisions of Order 23, Rule 1(1) which gives a plaintiff power to withdraw his suit at any time without the permission of that Court. Consequently, I think that we must read the latter part of Clause 2 (b) as referring not to permission to withdraw a suit as well as permission to institute a fresh suit, but merely as allowing the Court to give permission to institute a fresh suit in place of the one which has been withdrawn. Inasmuch as the withdrawal of the suit does not require the permission of the Court, it must be taken that the first suit is withdrawn when the order is passed and that the permission granted refers only to the filing of the subsequent suit on certain conditions. If the first suit is still pending as held in the above cases, it would be open to the plaintiff to obtain permission under Order 23, and instead of complying with the conditions of that permission, to go to the Court and demand that the trial on his first suit should be proceeded with and this could be done however long the interval might be. For these reasons I am unable to accept the view that the first suit is still pending, for it has been withdrawn and that withdrawal, in my opinion, takes effect from the date of the Court's order. If the Calcutta view were to be applied in the present case, it would appear, as observed in those judgments, that the trial of a second suit is barred under Section 10, Civil Procedure Code, until the first suit is disposed of by performance of the condition imposed by the order granting leave. In the present case, therefore, the whole of the trial of the suit which took place, before the costs were paid, would be bad under Section 10, Civil Procedure Code, for want of jurisdiction and the whole suit would have to be tried again. There is another case in the Calcutta High Court reported in Sajjad Hossain V/s. Ram Lal Sahu (1911) 15 IC 159 where it was held that payment might be made after the institution of the suit but that suit would not be deemed to be validlv instituted until the date of such payment. In the view that I take, I would follow Fischer V/s. Nagappa Mudali (1909) ILR 33 M 258) and hold that it extends, as was held in Hari Nath Dass V/s. Syed Hossain Ali (1905) 3 CLJ 480 and Subal Chandra V/s. Mosaraf Ali (1917) 38 IC 476, to cases where no time is fixed for fulfilling the condition.

(3.) In support of the view held by the Calcutta High Court, reference has been made to other cases in which similar conditions were held not to be mandatory, Ramayyangar V/s. Krishnayyangar (1886) ILR 10 M 185 with reference to the provisions of Section 539, Civil Procedure Code, Ammukutty V/s. Manavikraman (1920) ILR 43 M 793 with reference to the permission necessary to bring a suit against a receiver and Mahomed Azmat Ali Khan V/s. Lalli Begum (1881) ILR 8 C 422 at 434 with reference to the certificate requisite for bringing a suit under the Pensions Act. I do not attach much importance to these cases, for in all of them the Court prima facie has jurisdiction to try such suits; and, beyond imposing a condition precedent, none of the provisions referred to take away the jurisdiction of the Courts; whereas under Order 23, Rule 2(3) a Court is definitely precluded from entertaining a second suit when no permission has been granted. Unless, therefore, permission has been given, a Court is specifically forbidden to entertain a second suit.