ABDUL KHALEQUE Vs. SUSIL CHANDRA CHAUDHURI

JUDGEMENT

(1.) The only point for determination in this Letters Patent Appeal by the defendants is whether the suit out of which this appeal arises is maintainable in view of the fact that the plaintiff. respondents did not pay the costs of the defendants in a previous suit instituted by them on the same cause of action on which the present suit is based as directed by the Court in its order dated 14 November 1929. That order is in these terms: The plaintiff be permitted to withdraw the suit with liberty to bring a fresh one unless barred as prayed for. Defendant will get costs which must be paid within one month as a condition precedent to a fresh suit.

(2.) Plaintiffs did not pay the costs of the defendants within the time specified in the order. Neither did they pay the costs before they instituted the present suit on 23 January 1930. The appellant in his written statement did not object to the maintainability of the suit on the ground that his costs were not paid as directed by the Court in November 1929. Before the commencement of the hearing of the suit, the plaintiff applied to the Court for permission to deposit the costs. This prayer was not opposed and was allowed. The costs were then deposited by the plaintiffs. The suit was then heard and decreed. Defendant thereafter withdrew the costs deposited from Court. The decree of the trial Court was affirmed on appeal by the lower Appellate Court. Defendants preferred a second appeal to this Court. R. C. Mitter J. heard this second appeal. The learned Judge was inclined to hold that the suit was not maintainable and to allow the appeal, but in view of the decision of a Division Bench of this Court in Deb Kumar Roy V/s. Deb Nath Barna AIR 1920 Cal 897 which is on all fours with the present case, he dismissed the appeal and gave leave to the defendant to appeal under Section 15, Letters Patent. The order of 14 November 1929 allowing the plaintiffs to withdraw from the previous suit with liberty to institute a fresh suit on the same cause of action and directing them to pay the costs of the defendant within one month as a condition precedent to a fresh suit was made on the application of the plaintiffs under Order 23, Rule 1 (2), Civil P.C. The question is whether the condition about the payment of costs is attached to the permission to withdraw with liberty to institute a fresh suit or to the permission to bring a fresh suit. If the condition attaches to the permission to withdraw until the costs are paid, the permission is not operative. There is no withdrawal with liberty to institute a fresh suit and the suit must be taken to be pending. If the condition attaches to the permission to bring a fresh suit, the suit is withdrawn and ceases to be pending immediately with order of withdrawal and the permission to bring a fresh suit is not operative until the coats are paid.

(3.) The reasons in support of the first view are : (1) The Clause "on such terms as it think fit" in Sub-rule (2) of Rule 1, Order 23 of the Code grammatically refers to the verb "may grant" and the terms imposed by the Court therefore refer to the permission to withdraw from suit with liberty to institute a fresh suit. (2) What the Court orders is not a withdrawal and institution separately, but a withdrawal and institution on certain conditions, the whole is one order and the one part cannot be severed from the other when the plaintiff obtains leave to withdraw upon payment of costs, until they are paid there is no withdrawal with the permission of the Court and the suit remains pending.