P L D 1953 Lahore 597 (PLP)

Mian Muhammad Shafi for Respondents. M. A. SOOFI, J.‑--The facts giving rise to this Civil Revision are as follows. A declaratory suit was instituted by Ghulam Sarwar Khan plaintiff against Ghulam Akbar Khan for the declaration that the plaintiff was the owner of the land described in Schedule alif annexed to the plaint and that exchange by the defendant with the land in suit and the consequent mutations were void. The suit was instituted on the 26th May 1952. The plaint was amended on the 27th August 1952. On the 28th October 1952, the suit was withdrawn with the permission of the Court to institute a fresh suit conditional on payment of Rs. 10 as costs. A fresh suit was instituted. Costs were not paid either before or after the institution of the suit. On the 6th January 1953, written statement was put in by the defendants in which one of the preliminary objections taken was that the costs had not been paid, and the costs being conditional, the suit was barred. On the 19th January 1953, the plaintiff in his replication to the written statement offered to put in costs. On the 27th January 1953, the costs were deposited. . A preliminary issue was framed whether this suit was maintainable because of the non‑payment of the costs prior to the institution of the suit. The learned Civil Judge by his order dated 13th March 1953, allowed the defendant Rs. 30 as costs on account of the plaintiff's failure to pay the stipulated costs on the with drawal of the suit prior to the institution of a fresh suit. Those costs paving already been put in and further costs having been awarded, the plaintiff's suit was maintainable. It has been argued that in view of the decision in Gollapudi Seshayya v. Nadendla Subbayya (A I R 1924 Mad. 877), where a suit was withdrawn with leave to bring a fresh suit on condition of paying costs to the defendant but the costs were not paid, it was held that the second suit was barred, the present suit is not maintainable. The learned counsel for the parties placed a large number of rulings before me, but the leading case on the subject is Amir Hushen v. Abdul Bari (A I R 1943 Cal. 560) in which, after a review of a large number of authorities on the subject, a Division Bench of the Calcutta High Court observed as follows:‑ "The plaintiff was 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 to get costs which were made condition precedent to the institution of a fresh suit. The second suit was filed on the 13th January 1939 and both parties adduced whatever evidence they had to adduce on 9th May 1939. On 10th May 1939, the plaintiff deposited the costs in Court when the argu ments were heard: Held: that the new suit must be taken to be instituted only on the day when condition of the payment of costs was complied with". A similar view was taken by a Division Bench of the Allahabad High Court in Jadu Teli v. Mahboob Raza Khan (A I R 1933 All. 810). The Madras view in A I R 1924 Mad. 877, a Single Bench ruling, was not approved either by the Division Bench of the Calcutta High Court or of the Allahabad High Court. It is, therefore, not good law. Agreeing with Allahabad and Calcutta views, I hold that a fresh suit shall be deemed to have been instituted on the day the conditional costs for the withdrawal of the suit are paid. The` costs having been paid within the period of limitation, the second suit is competent. The revision is dismissed with costs. A. H. Revision dismissed.