P L D 1959 Supreme Court, (Pak (PLP)

"The plaintiff be permitted to withdraw from the suit with the right reserved to sue afresh on the same subject‑matter if not otherwise barred. The appearing defendants shall get full costs of the suit and additional costs of Rs. 50 to each set of contesting defendants. These costs shall be con dition precedent." This order was passed on 26th February 1955, and on the 4th March 1955, the costs on calculations were ordered to be paid as follows: ‑ "The defendant No. 1 to get Rs. 81/8/ and defendants Nos. 2 and 3 to get Rs. 65/10/0 costs from the plaintiff." In calculating these costs the sum of Rs. 50 awarded as additional costs to each set of contesting defendants was not included. The respondents paid the sum of Rs. 81/8/0 and thereafter on the 26th September 1955, instituted a fresh suit in terms of the order of 26th February 1955. The appellant objected to the maintainability of the suit on the ground that it had been insti tuted without paying the additional costs and that therefore it was barred. The Munsif tried this question as an issue and after taking evidence held that the omission to pay the additional costs was bona fide and ordered the respondents to pay the additional costs within ten days. The costs were accordingly paid within the limited time. The appellant moved the High Court on the revision side but failed. Thereafter he obtained special leave to appeal in view of the divergence of judicial opinions on the question of com petency of a fresh suit in similar circumstances. In the cases cited in the course of arguments the question has been approached from different angles. In some decisions it has been held that where a suit is permitted to be withdrawn with liberty to bring a fresh suit if costs are paid within a specified period, a suit instituted without the payment of costs is incom petent and must be dismissed. In others the view taken is that if any of the conditions on which permission to withdraw with liberty to bring a fresh suit was given has not been complied with, the second suit cannot be said to be in compliance with the conditions imposed, with the result that such suit is to be ignored and the original suit has to be tried. In the third set of cases sections 115 and 148 of the Civil Procedure Code have been applied to extend the time for payment and to make the second suit valid from the date of payment of costs. In the fourth category of cases the fresh suit instituted without complying with the condi tions has been held to be incompetent under sub‑rule (3) because in such circumstances the previous suit is considered to have been withdrawn under rule 1 (i) of Order XXIII of the Civil Procedure Code. Among the cases cited there is one from the High Court of East Punjab viz., Mela v. Labhu (A I R 1955 Pb. 97) where Bishan Narain, J., adopts an entirely new approach, which substantially coincides with our own view. The basic principle in bar of a party's right to sue is that he is not barred from suing unless the suit is barred by some provisions of the Civil Procedure Code. Such provisions are found in scattered places in the Civil Procedure Code, and the most important of them are section 11, Order II, rule 2, Order IX, rule 9, Rule 1 of Order XXIII, is as follows: ‑ "1. (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject‑matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject‑matter of such suit or such part of a claim. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub‑rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject‑matter or such part of the claim. Rule 2 provides that in any fresh suit instituted on permission granted under rule 1, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. It will be noticed on a perusal of sub‑rules (1) and (2) that whereas under sub‑rule (1) the plaintiff may withdraw his suit at any stage of the proceedings and without an order of the Court, under sub‑rule (2) he has to obtain the permission of the Court for withdrawal and the Court's own power to permit withdrawal is limited to the instances specifically mentioned in clauses (a) and (b). Again, whereas the result of a withdrawal without permission under sub‑rule (1) is that the plaintiff by sub -rule (3) is precluded from instituting a fresh suit, no such con sequence is stated in sub‑rule (2) as following from the withdrawal of the suit and not complying with the conditions on which the per mission to withdraw was given. It is, therefore, incorrect to apply sub‑rule (1) to cases like this and to invoke the consequence stated in sub‑rule (3) by holding that where a plaintiff to whom a permis sion to institute a fresh suit was given does not comply with the conditions on which he obtained the permission, he must be deemed to have withdrawn his suit under sub‑rule (1). Nor is it correct to state that since the conditions on which the permission to ` institute a fresh suit was given has not been complied with the original suit must be deemed to be pending. The withdrawal is complete the moment an order to that effect is recorded and the right to bring a fresh suit follows from the withdrawal so permitted. But sub‑rule (2) expressly states that in granting the permission the Court may impose "such terms as it thinks fit." If such terms have been imposed by the Court then the right to bring a fresh suit is curtailed because the fresh suit can be brought only if the conditions imposed by the Court are fulfilled. The question then is what would be the consequence if any of the leans on which permission to withdraw with liberty to institute a fresh suit was given is not fulfilled. The answer can only be that unless the condition is complied with there is no proper suit before the Court. In such a case the defendant is entitled and the Court has the power to demand that if the plaintiff wishes to proceed with the suit he must comply with the terms on which permission to withdraw was given. And leaving the question of limitation aside, the plaintiff may at any time comply with the terms and on proof that he has so complied may demand the Court to proceed with the suit: To put it in a different way, unless the plaintiff satisfies the Court that the terms on which he had received the permission have been satisfied there is no proper plaint before the Court, with the result that no pro ceedings on the plaint can be taken. The order of dismissal of the suit can, therefore, be passed only after it is found that the plaintiff, on an objection taken, is not willing to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh suit. Whether the condition has or has not been fulfilled is for the Court to determine in each case and in determining that question it has an inherent power to condone bona fide delays, omissions, etc. Applying the above principle to the present case it must' be held that the respondent s complied with the condition when on an objection being taken by the appellant they expressed their willing ness to deposit the additional costs and in compliance with the Court's order actually deposited the costs. The appeal, therefore, fails and is dismissed with costs. K. B. A./A. H. Appeal dismissed.