P (PLP)

Mr. B. K. De, the learned Advocate for the appellants, contends that the learned Subordinate judge has erred in law in decreeing the plaintiff's claim for the years 1346 and 1347 B. S. and that the decree of the trial Court in that respect should be restored. The point for my consideration in this appeal is as to whether the present suit of the plaintiff regarding the claim for arrears of rent for the years 1346 and 1347 B. S. is barred by reason of the plaintiff's failure to comply with the condition upon which the previous suit was allowed to be withdrawn with liberty to bring a fresh suit on the same cause of action. It appears from the records that the plaintiff has instituted Rent Suit No. 533 of 1:941 in the Second Court of Munsiff at Habiganj against the defendants for realisation of arrears of rent for the years 1344 to 1347 B. S. and that suit is based on identically the same subject‑matter and that suit was‑allowed to be withdrawn with liberty to institute a fresh suit on the 12th September, 1941. The order made by the Court runs as follows : ``Plaintiff files a petition for permission to withdraw from the suit owing to formal defect in the plaint. It appears that there is formal defect. Hence ordered that the plaintiff be permitted to withdraw the suit with liberty to bring a fresh suit upon the same subject‑matter unless otherwise barred with Rs. 2 as cost to the defendant, C. P. It is admitted by all parties that the words "C P." mean "Condition Precedent." The present suit for realisation for 'arrears of rent for the years 1346 to 1349 B. S. was filed on the 16th April, 1943 and the suit was heard on the 4th September, 1943 and judgment was delivered on the 6th September 1943 dismissing the claim for arrears of rent for the years 1346 and 1347 B. S. A petition was filed on the 6th September, 1943 by the plaintiff praying for acceptance of the cost Rs. 2 payable to the defendants under the order of the Court in R. S. No. 533 of 1941 and for payment of the same to the defendants but the learned Munsiff rejected the said prayer. The learned Subordinate judge seems to think that the said cost was paid before the judgment but after the conclusion of the hearing. But such an assumption is apparently wrong. A perusal of the record will show that the said cost was not even offered before the judgment and this position has not been controverted before me by the learned Advocate for the respondent. The learned Advocate for the appellants contends that non‑payment of cost, which was made as a condition precedent, before the institution of this suit, has made this suit incompetent as regards the plaintiff's claim for the years 1.346 and 1347 . B. S. in view of the provisions of Order 23, Rule 1 (3) of the Code of Civil Procedure. On the question as to what is the legal effect of non‑com pliance with the order regarding non‑payment of costs in a case like the present one, there is divergence of judicial opinions in different. High Courts in India and the decisions in the Calcutta High Court itself cannot be said by any means to be uniform and reconcilable. There is no decision in this Court on this point. But before I deal with some of these decisions I may generally indicate the principles on which these various decisions are based. In the present case the order dated the 12th September, 1941, permitted the plaintiff to withdraw the suit with liberty to bring a fresh suit upon the same subject‑matter unless other wise barred with Rs. 2 as costs to the defendants "as" condition precedent and, this order was passed under Order 23, Rule 1 (2) of the Code of Civil Procedure. The question resolves itself into two parts, (i) whether the condition about the payment of costs is attached to the permission to withdraw with liberty to bring a fresh suit or (ii) to the permission to bring a fresh suit. The divergence of judicial decisions, in my opinion, is due to the different Courts taking either of the view, in deciding particular cases, to take up the first view namely, that the condition of payment of costs is attached to the permission to withdraw with liberty to institute a fresh suit. In my opinion if the con dition attaches to the permission to withdraw until the costs are paid, the permission cannot be said to be operative and final and there is no withdrawal and the suit remains pending and un-dispos ed of. The reasons in support of this view are (a) that the expres sion "on such terms as it thinks fit" in Order 23, Rule (1) (2) Civil Procedure Code refers to "may grant" and so the terms imposed by the Court refer to the permission to withdraw from the suit with liberty to institute a fresh suit, and (b) what the Court orders is not "a withdrawal and institution of fresh suit" but "a with drawal and institution on certain conditions" and when the plaintiff obtains permission to withdraw upon payment of costs, there is no withdrawal until the costs are paid and the suit remains pending. Next, to take up the second view, namely, the condition about the payment of costs is attached to the permission to bring a fresh suit, the reasons put forward are (a) that the latter ‑part of sub‑rule (2)'of rule (1) of Order 23 Civil Procedure Code is to be read as referring to the permission to withdraw a suit as no permission is needed to the withdrawal of a suit and the permission granted refers only to the filing of the suit on certain conditions and (b) that order allowing the withdrawal upon terms is separable in two parts, namely, one allowing the withdrawal and the other allowing the institution of a suit on compliance with a condition laid down by the Court. And therefore if the condition attaches to the permission to bring a fresh suit, the suit is withdrawn and cases be pending immediately with the order of withdrawal and the permission to bring a suit is not operative until the costs are paid. The next question to consider is what is the consequences of withdrawal of a suit. That is provided for in Order 23, Rule 1, Sub‑rule (3) Civil Procedure Code. That sub‑rule provides that when the plaintiff withdraws from a shit or abandons a part from of his claims without the permission referred to in sub‑rule (2) he shall be liable for costs and shall be precluded from instituting any fresh suit in respect of the subject‑matter or such part of the claim. That sub‑rule contemplates withdrawal without leave to bring a fresh suit on the same cause of action. If the first view is correct, there is no withdrawal at all when the condition is not fulfilled as the failure to withdraw with leave to bring a fresh suit does not put an end to the suit and the plaintiff is entitled to continue the suit in spite of failure and the result will be that two suits on the same cause of action would be pending and in that case the Court should stay the hearing of either suit under the provisions of the Code or law. If the second view is correct then on plaintiff's failure to deposit the costs as ordered by the Court, the withdrawal becomes withdrawal without leave of the Court and the subsequent suit becomes incompetent. Then there are classes of cases in which the terms of the order impose a time‑limit for payment of costs and the Courts from the cases in which no time limit has been imposed have distinguished them. The reasons for the distinction are (i) when Court directs payment of costs by a certain date and that date expires, the performance of the condition imposed by the Courts becomes impossible and a subsequent deposit does not become compliance with the condition, but if no time is fixed, as in the present case, the non‑payment of costs before the filing of the subsequent suit makes the suit premature and the Court can treat the plaint as having been filed on the date on which the deposit is made provided no question of limitation arises, (ii) the fixation of a date for payment of costs is to settle the position of the parties to the suit within a reasonable time in order that the defendants may not be kept in suspense of a future attack indefinitely and (iii) when Court fixes such a time‑limit the plaintiff 'can say then and there that he does not accept the condition and he may ask the Court to proceed with the suit, but if after such an order he does not take any further steps to proceed with the suit, he should be taken to have accepted the conditional order and must suffer the consequence flowing from the non‑compliance with the condition imposed by the order. So if the condition about payment of costs attaches to the withdrawal of the suit with liberty to institute a fresh suit, that is, the first view I, have indicated herein before, the distinction between cases where time‑limit is fixed and where no such time‑limit is fixed for payment of costs becomes immaterial for in either case the suit remains pending in spite of the order in default of payment of costs. But if the second view I have mentioned before is correct, namely, the condition attaches to the filing of the subsequent suit, after the date expires, the Court can extend the time under section. 148 of the Civil Procedure Code and thus can enable the plaintiff to comply with the condition imposed by the order and where the Court extends the time there is no difficulty but where time is not extended there is in law no permission to bring a fresh suit and the second suit must fail. Considering the matter from another stand‑point namely, that the Court fixing the date of payment intended to settle the position of the parties, the question becomes pertinent how does the Court settle the position, and when the order specifies a date there does not arise any difficulty but where nothing is stated the answer to the question depends again on the question whether the condition attaches to the permission to withdraw or to the permission to institute a fresh suit. Similarly when the condition is accepted, the consequences must depend on the answer to the aforesaid questions. Then again the decision in each case depends upon particular terms of the order in the case. So where the terms of the order show what will happen on default of payment within the time fixed, I am of opinion, no difficulty can arise ; but where there is no such direction, the decisions of other High Courts show sharp conflicting views, which I have tried to indicate generally herein before. I may point out, here that the difference in the two views is of fundamental nature. , I shall now discuss several cases of different High Courts in India, which have taken one or other of the two views, which I have tried to formulate at the beginning of my judgment. I am discussing only those cases to which, in my opinion, I should draw attention in order to show how divergent views prevailed in different Courts. One of the leading decisions is in the case of Shital Prasad v. Gaya Prasad (1914) 19 C. L. J.

529. That represents the first view. In that case Sir Lawrence Jenkins, the Chief Justice of the Calcutta High Court, held that if a suit was allowed to 'be withdrawn with liberty to bring a fresh suit on the same cause of action on ‑condition of paying costs to the defendants, the second suit could not be dismissed for non‑pay ment of costs and that suit should be held to be still pending and un-disposed 'of so long as the costs were not paid. In that case no date was fixed for payment of costs. It was held there 'that the first suit was still pending. That case is like the present case. In the case of Abdul Aziz Molla v. Ebrahim Molla (1904) I. L. R. 31 Cal." 965 the plaintiff was allowed to withdraw the suit with liberty to bring a fresh suit on payment of costs but no time was specified nor there was any consequential order and the costs were not paid before the institution of the second suit but were paid before the suit came on for trial and it was held that the suit was not incompetent although it was irregularly instituted and the payment of costs after the institution of the suit would cure the defect. This decision can be supported on' the principle laid down in Shital Prosad's case (ante) but the decision did not proceed on the ground mentioned in Shital Prosad's case (ante). The next Calcutta High. Court decision is in the case of Harinath Das v. Syed Hossain Ali (1905) 2 C. L. J. 480 where Sir Francis Maclean, C. J. and Pratt, , J. held when the plaintiff did not pay the costs which was the condition on which the order for with drawal depended, it must be taken to have been withdrawn without the permission of the Court and the plaintiff' must be precluded from instituting a fresh suit for the same subject‑matter. The view taken in that case appears to me at variance with that taken in Shital Prosad's case (ante). The next in point of time is the case of Shubal Chandra v. Mausraf (1917) 38 I. C. 476, where the learned Judges did not follow the principle in Shital Prosad's case, though it was referred to them and held that when the order for payment of costs was a condition precedent to the institution of the subsequent suit, failure to pay costs before the institution of that suit would be fatal to that case. In 1920 Sir Ashutosh Mukerjee, A. C. J. and Fletcher, J. followed the decision of Sir Lawrence Jenkins C. J. in Shital, Prosad's case (ante) in the case of Deb Kumar Roy Choudhury v. Debnath Barua Bipra (1920) 64 I. C.

738. The view propounded by Sir Lawrence Jenkins C. J. in Shital Prosad's case was followed by the Patna High Court in the case of Syed Gazi Muhammad Afzal v. Lachman Singh (1923) I. L. R. 5 Patna 306 and in that case a period was specified, as in this case, within which the payment of costs was to be made and. it was held there that‑the Court had power under section 148 of the Code of Civil Procedure to extend the time. In tile case of Abdul Khaleque v. Susil Chandra Choudhury (1934) 39 C. W. N. 330 R. C. Mitter, J. felt constrained to follow the decision of the Division Bench in Debnath (1920) 64 I. C. 738 though his own opinion was different. On appeal under clause 15 of the Letters Patent that decision was affirmed by Nasim Ali and Remfry, JJ. in the case of Abdul Khaleque v. Sushil Chandra Chaudhury (1937) 66 C. L. J. 275 41 C. W. N. 1336. In that case the suit was permitted to be withdrawn with liberty to bring a fresh suit on condition that the costs must be paid within one month as a condition precedent, but the plain tiffs did not pay, the costs ‑within the time specified in the order nor before the institution of the suit. No objection was taken by the defendants and before the hearing of the suit plaintiffs applied to the Court for permission to deposit costs and that prayer was allowed without objection and then the plaintiffs deposited the costs and the suit was heard and decreed and the defendants then withdrew the costs deposited from Court. The decree of the trial Court was affirmed on appeal and the defendants second appeal was affirmed by R. C. Mitter, J. (though he was inclined to hold that the suit was not maintainable) in view of the decision of the Division Bench in Deb Kumar Roy Choud hury's case (ante) and against that decision there Was a Letters Patent Appeal. The view taken in the Letters Patent Appeal reported in 66 C. L. J. 275 does not strictly follow the principle enunciated in Shital Prosad's case but it can be said that in some sense. Their Lordships followed that decision. In Shital Prosad's case Sir Lawrence Jenkins ruled that the Court allowed withdrawals and institutions together on certain conditions and so it could not be said that 'the condition attached to one part and not to the other. In another class of cases decided by Madras, Bombay, Patna and Allahabad High Courts the learned judges in those cases approached the question from a different standpoint. In A. I. R. (1924) Mad. 877 after referring to the cases of Abdul Aziz v. Ebrahim (1904)

1. L. R. 31 Cal. 965, Shital Prosad v. Gaya Prosad (1914) 19 C. L. J. 529 Kuldip Singh v. Kuldib Chaud hury (1917.) 3 Pat. L. J. 63 and Deb Kumar v. Debnath (1920)

641. C 738, Phillip, J. observed that all these cases assumed that the permission granted by the Court was not only permission to bring a fresh suit but also permission to withdraw the first suit and that consequently until the condition was fulfilled the first suit was pending. His Lordship goes on to observe that this seems to overlook the provisions of Order 23, rule (1) Civil Pro cedure Code which gives a plaintiff power to withdraw the suit at any time without permission of the Court and consequently we must read the latter part of Clause 2 (b) as referring not to permission to withdraw a suit and permission institute a fresh suit but merely as allowing the Court to give permission to institute a fresh suit in place of one which has been withdrawn. His Lordship proceeds to observe that for mere withdrawal of a suit no permission of the Court is necessary and it is only when the plaintiff applies for leave to bring a fresh suit on the same subject‑matter that an order of the Court is required. The Court can attach any condition to that order and this condition must be taken to be attached to‑ the permission for instituting a second suit and not to withdrawal of the first suit. If the first suit is considered to be pending it will be open to the plaintiff instead of complying with the condition to come to the Court and demand a trial of the first suit, however long the interval may be. In the Madras case the whole of the trial of the suit took place before the costs were paid and His Lordship held that the suit would be bad under) section 10 of the Code of Civil Procedure for want of jurisdiction and the whole suit would have to be tried again and the suit was held to be barred under Order 23 Civil Pro cedure Code. Phillip, J. holds that where no date is fixed for payment of costs, the second suit is barred if it is instituted without payment of costs. This decision has been followed by the Bombay High Court in Shidramappa v. Mallappa (1930) I. L. R. 55 B. 206 and in the Allahabad High Court practically the same view has been taken in the case of Rachhpal Singh v. Sheo Ratan A. I. R. (1929) All.

692. These decisions lay down that the withdrawal of the first suit is complete as soon as the order of the withdrawal is made and the second suit is not maintainable unless the condition regarding payment of costs is complied with. It appears to me that the view taken in the Madras, Bombay and Allahabad High Courts and by the Patna High Court in (1917) 3 P. L. J. 63 and in the Calcutta High Court in the cases of Harinath Das v. Syed Hossain Ali (1905) 2 C. L. J. 480, Shubal Chandra v. Musaraf (1917) 38 I. C. 476, Abdul Khaleque v. Susil Chandra Choudhury (1937) 66 C. L. J. 275, 41 C. W. N. 1336 and in the recent decision of that Court in Amir Hushen v. Abdul Bari Khan (1943) 47 C. W. N. 709 where the facts are on all fours with the case before me is sound. In the present case the order permitting to withdraw the suit is not unconditional. The order says that the plaintiff will be permitted to withdraw the suit with liberty to bring a fresh suit upon the same subject‑matter unless otherwise barred with Rs: 2 as costs to the defendant (as) condition precedent. Admittedly the costs were not paid before the institution nor even during the trial and not even before the judgment in the subsequent suit was delivered and the prayer to deposit the cost was rejected when it was made after the delivery of the judgment. In this case the Court did not grant any extension of time to pay the costs and there is no question of any waiver of the rights of the defendants. Even if it be assumed that the plaintiff's attempt to deposit the costs after the judgment on the 6th September, 1943 should have been granted, and that the costs be assumed to have been paid on that date, the second suit would be deemed in law to have been, in stituted on the 6th September, 1943 and on the face of the allegations in the plaint the plaintiff's claim for arrears of rent for the years 1346 and 1347 B. S. would be barred by limitation. I, therefore, hold on principle and also following the decision mentioned in the last foregoing paragraph that the learned Sub ordinate Judge has erred in decreeing the plaintiff's claim for arrears of rent for the years 1346 and 1347 B. S. and that the plaintiff's claim for arrears of rent for those two years is barred under Order 23 Civil Procedure Code and the suit for rent of 1346 and .1347 B. S'. is not maintainable. The result, therefore, is that the appeal is allowed and the judgment and decree of the lower appellate. Court are set aside and the judgment and decree of the trial Court are restored. In the circumstances of this case there will be no order as to costs: A. H. Appeal allowed.