KRISHNAN SOMAYAJIPAD Vs. VATAVATTE RAMAN NAIR

JUDGEMENT

(1.) THE plaintiffs have filed this Suit for the recovery of what is described as water cess from the defendants. THEy have based their claim on contract and usage and on both the points the findings of the lower Courts are against them. THEir learned Advocate, while conceding that he is not now in a position to dispute the correctness of these findings, desires to argue his case on the footing, that under the general law he is entitled to the relief, he claims. THE defendants answer that this may necessitate their raising new points and we think, on the facts of this case, the plaintiffs cannot at this stage be allowed to set up a new case. THE plaintiff's Advocate, realising his position, applies for permission to withdraw the suit under Order XXIII, Rule 1, Civil Procedure Code. In Balide Kamayya V/s. Pragda Papayya 37 Ind. Cas. 414 : 40 M. 259 : 21 M.L.T. 82 : (1917) M.W.N. 277 & 246 : 5 L.W. 508 : 32 M.L.J. 477 (F.B.) it has been held that such permission can be granted even by an Appellate Court. In Chidambara Mudali V/s. Kozhandavelu Mudali 17 Ind. Cas. 395 : (1912) M.W.N. 1003 permission was granted in similar circumstances by Sundara Iyer and Sadasiva Iyer, JJ. Though the suit is for the recovery of water-cess or co3t of water for certain particular Faslis only, the case raises questions of great importance affecting the right of the plaintiffs as well as several proprietors through whose land, the chal or channel passes. We shall be exercising our discretion by acceding to the request of the plaintiffs and we grant them permission to withdraw the suit with liberty to institute a fresh suit with respect to the subject-matter of this suit, on condition that they pay the 1 defendant or deposit in six weeks from this date, Rs. 250 which sum is fixed as representing the 1 defendant's costs of this litigation incurred up to date and we want to make it clear that this amount is exclusive of any costs the plaintiffs may have already paid or may be liable to pay under the decree of the lower Court passed in favour of the defendants. If the amount is not paid within the time limited the second appeal shall stand dismissed with costs.