1984 PLP 3118 (CLC)

‑‑O. XXIII, rr. 1 & 2 & S. I t 5‑‑Withdrawal of suit‑Costs, payment of‑Court allowing petitioner to withdraw their declara tory suit against respondent and to file fresh suit on same cause of action on payment of costs‑Suit so filed decreed by trial Court but on appeal appellate Court dismissing same on objection raised first time by respondent that cost having not been paid by petitioner their suit was not maintainable‑Held, respondents having neither taken this objection before trial Court nor mentioning same in memorandum of appeal, it was essential for appellate Court to have given an opportunity to petitioner to establish his stand‑Accept ance of respondent's appeal way held, to be illegal by High Court in revision and treated as pending before said Court for disposal in accordance with law. The facts are that the petitioner and respondent No. 2 instituted a declaratory suit against the respondent No. I and one Mst. Rasool Bibi and on the plaintiffs' move, the learned trial Court. on 9th January, 1979 allowed them to withdraw it and file a fresh suit, on the same cause of action, subject to the payment of Rs.30, as costs. The petitioner and respondent No. 2 brought such a suit, which was decreed by the learned trial Court. The respondents went in appeal. Before the learned first appellate Court, for the first time they raised an objection to the maintainability of the suit, on the ground that costs were not paid. This argument prevailed with the learned Additional District Judge. He maintained that the factum of payment of costs was not mentioned in the plaint and that there was nothing on the record to prove that the costs were paid before the institution of the suit. Thus, by his judg ment, dated 4th September, 1983, without going into the merits of the case, he allowed the appeal and dismissed the petitioner's suit with costs throughout. The plaintiff‑petitioner has now come to this Court under section 115, C. P. C.

2. I have heard the learned counsel for the petitioner and respondent No.

1. Respondents Nos. 2 and 3 have not appeared despite notice. They are proceeded against ex parte. The record has also been examined. It was argued on behalf of the petitioner, that the cost were paid by him, to the respondents' counsel in the lower Court and that is why, no objec tion in this connection was raised by them before the trial Court. He urged that such an objection could not have been entertained, at the appellate stage, without giving him an opportunity to prove that the costs bad been paid. He also brought to my notice an application, dated 4th September, 1979, filed by him and Bahawal before the learned Additional District Judge praying that though the costs were paid, yet they were willing to deposit the same again in the treasury. It was sub mitted that the disposal of the appeal ‑ without adjudication of this application was illegal.

3. In reply to these arguments, the stand taken up by the respon dents' learned counsel was, that the question as to whether or not without complying with the terms of the order, dated 9th January, 1979, as to the payment of cost, the second suit on the same cause of action was not maintainable, being a question of law, could validly be raised before the learned Additional District Judge. He went on to submit that it was incumbent upon the petitioner to have specifically stated in the plaint, that the costs had been paid, but no such recital was made therein. In his submission, costs could be paid subsequent to the institution of the suit, only if the period of limitation had not expired and as in the instant case. the limitation period was already over, it was idle on the part of the petitioner, to make an offer at the appellate stage, to deposit the costs in the treasury. In this respect, he heavily relied on Mst. Khairan v. Ata Muhammad and others (A 1 R 1939 Lah. 148) and Jadu Teli v. Mahboob Raza Khan (A I R 1933 All. 810).

4. From the perusal of the copy of the plaint I find that in Para. 2 thereof. it was clearly stated that the suit earlier filed was withdrawn under the trial Court's order, dated 9th January, 1979, with the permis sion to file a fresh suit. That copy of the said order was also appended with the plaint. This para. was admitted as correct, in the corresponding para of the written statement. I feel, that reference to the trial Court's order, dated 9th January, 1979, in the plaint, should have alerted the respondents on the question of payment Of costs but not that in the written statement, they did not raise any objection in this behalf, even subsequently no such plea was urged at any stage of the proceedings before the learned trial Court. In the memorandum of appeal as well, this ground was not taken up. It was only during the argument that the respondents pressed this point, which was accepted by the learned Addi tional District Judge, without affording the petitioner any opportunity to establish that the terms of the order: dated 9th January, 1979 had been fulfilled by him. It is correct that a pure question of law with the per mission of the Court, can be raised at any stage of the suit, but in the instant case the question of law posed by the respondents, upon the facts obtaining on the record, could not have been disposed of without deter mining the petitioner's contention. As argued by the respondents' learned counsel, the costs could be deposited even after the institution of the suit, provided the period of limitation had not expired. The law on this point, as laid down in Haji Abdul Rashid Sowdagar v. S. M. Lalita Roy and others (PLD 1959SC287) at p, 291 is that: "The answer can only be that unless the condition is complied with there is no proper suit before the Court. In such as case the defen dant 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 proceedings 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 It6~:;y 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 determin ing that question it has an inherent power to condone bona fide delays, omissions etc." It is clear to me that the impugned judgment does not march with these observations of the Supreme Court.

5. As regards the precedents cited by the learned counsel for the respondent, in the Lahore judgment, it has been laid down that when the permission to file fresh suit, is conditional the right under the permission cannot be said to have accrued unless the condition is fulfilled Likewise, under the Allahabad ruling, the Court can treat the plaint having been filed on the date when the deposit is made. I do not ‑ think that these rulings can justify the sustenance of the impugned judgment. The basic question which floats at the surface is that can the disposal of the appeal and the dismissal of the suit, in the manner as done by the learned Additional District Judge be upheld. My answer is in the negative. In case he deemed it fit to entertain the respondents' plea that costs were not paid, the ground not having been taken up in the memorandum of appeal, or urged before the trial Court, it was essential for him to have given an opportunity to the petitioner, to establish his stand and dispose of the application, before proceeding with the decision of the appeal. The acceptance of the respondents' appeal was thus illegal and the impugned judgment, therefore, cannot be upheld.

6. As a result of this discussion, this appeal sic is allowed and the judgment and decree of the learned first appellate Court set aside. with the result that the respondents' appeal shall be treated as pending and decided afresh in accordance with law. The petitioner's application, dated 4th September, 1979 shall be disposed of first, after allowing him to prove their contentions that costs bad already been paid. The parties are left to bear their own costs. M. Y. H. Petition accepted‑