1. This appeal arises out of the judgment and decree dated 17-8-1979 passed by Shri N. C. Barua, Assistant District Judge, Barpeta in Title Suit No. 4 of 1974 dismissing the plaintiff's suit on the grounds, (a) that in respect of the same causes of action the plaintiff had instituted Title Suit No. 7 of 1973 but he withdrew from the suit under Order 23 of the Civil P. C. for short 'the Code', without obtaining liberty to institute a fresh suit in respect of the subject matter of the suit; (b) the plaintiff did not make any averment in his plaint that he had withdrawn the suit with the permission of the Court with liberty to institute a subsequent suit and, (c) the plaintiff did not pay the cost of Rs. 50/- awarded by the Court while permitting the plaintiff to withdraw 'from Title Suit No. 7 of 1973, a condition precedent for institution of the subsequent suit.
2. Order 6 deals with 'pleadings' generally. The term 'pleadings' means formal allegations by the parties of their respective claims and defences, for the judgment of the Court The terra 'pleadings' has a technical and well defined meaning. Pleadings are written allegations of what is affirmed on the one side or denied on the other disclosing to the Court having jurisdiction to try the cause, the real matter in dispute between the parties. A plaint must contain 'material facts' as to the cause of action and nothing more. No evidence need be stated. It is indubitable that in the instant case the defendants, in their written statements (pleadings), did not take up the plea that the subsequently instituted suit was not maintainable in view of the bar imposed by Order 23, Rule 1 (4) of 'the Code'. Therefore, no specific issue was framed as to the alleged violation of Order 23, Rule 1 of 'the Code'. It is well known the pleadings of the adversary in a civil action are meant for setting forth the controversies to enable the other side to meet the controversies. In the instant case the defendants could have taken up the plea of non-maintainability of the suit in view of the bar under Order 23. Rule 1 (4) of the Code. However, no such plea had been taken by the defendants nor any issue was framed apart from a general omnibus issue reading:
'Whether there is any cause of action in the suit?'
3. Consequently, the plaintiff had no opportunity to meet the controversy which was raised for the first time during the argument stage after the evidence of the parties had been recorded. Upon hearing oral arguments the learned Assistant District Judge held that the suit was not maintainable in view of the bar under Order 23, Rule 1 of the Code. The issue framed was to the existence of cause of action to sue. The question of want of cause of action cannot be equated with the question of bar of institution of a fresh suit in violation of Order 23, Rule 1 of the Code. As such, the learned Judge had no jurisdiction vested in him by law to determine the question as to whether the suit was barred or not maintainable in view of the prohibition contained in Order 23, Rule t of the Code, without framing a specific issue on the point, without affording opportunity to the plaintiff to meet the specific plea and without giving the plaintiff opportunity to adduce evidence on the plea. The learned Judge, could have called upon the defendant to amend his pleading to take up the plea, frame issue and decide the question whether the subsequent suit was barred under Order 23, Rule 1 of 'the Code'. He did neither. For the reasons we are constrained to hold that the learned Judge had no jurisdiction to enter into the controversy whether the suit was barred under Order 23, Rule 1 of 'the Code'.
4. Be that as it may, the plaintiff, by way of abundant caution, proved the order dated 4-1-1974 in Title Suit No. 7 of 1973 passed by the Assistant District Judge, Barpeta, whereby the learned Judge upon hearing the parties allowed the plaintiff to withdraw from the suit (T. S. 7/73) under Order 23, Rule 1 (3) of the Code with liberty to institute a fresh suit in respect of the subject matter of the suit. The learned Judge was satisfied that the suit would fail for formal defects as pointed out by the plaintiff. However, the plaintiff was saddled with cost of Rs. 50/- payable to the defendant. The certified copy of the order sheet produced before us clearly indicates that on 30-1-1974 the costs were deposited by the present plaintiff whereupon the learned Judge passed an order directing the defendant to receive the deposited amount. We quote the order dated 4-1-1974 in Title Suit No. 7 of 1973 which runs as follows:--
'4-1-1974: Considered the petition No. 476 filed by the plaintiff on 19-12-1973 for leave to withdraw the suit due to certain formal defects in the plaint. Considered also the reason as mentioned in the petition for the delay in taking steps for withdrawal of the suit.
Heard also learned lawyer for both parties, and I am satisfied that the suit may fail for the formal defects as pointed out by the plaintiff. The petition is accordingly allowed.
The suit is dismissed on withdrawal with cost of Rs. 50/- to the defendant.
The plaintiff is allowed to refile the suit But the cost shall be prepaid.'
5. As the condition precedent for filing the subsequent suit was duly and faithfully fulfilled by the plaintiff on 30-1-1974, there was no impediment for institution of the subsequent suit. In this view of the matter we are constrained to hold that the learned Judge was wrong in holding that the subsequent suit was not maintainable in view of the prohibition contained in Rule 1 (4) of Order 23 of the Code.
6. This was the only issue decided against the plaintiff and the plaintiff was non-suited. The main issues' were left over and the suit was dismissed. For the reasons set forth above we hold that the learned Judge was wrong in holding that the plaintiff was precluded from instituting the present suit under Order 23, Rule 1 (4) of the Code.
7. In the result we allow the appeal on setting aside the impugned judgment and decree and remit the suit to the Assistant District Judge, Barpeta, who shall cause notices to be served on the parties and upon hearing both the parties shall dispose of the suit in accordance with law. There will be no order as to costs.