1. This revision application is filed by the plaintiff in a suit for a declaration that certain property was not liable to be sold in execution of a decree obtained by the defendant, who is the opponent here, against one Bapuji.
2. After issues were framed the plaintiffs applied to the Court for permission to withdraw the suit with liberty on the ground that the property was in possession of the receivers in another suit filed by the other creditors of Bapuji, that in their absence this suit might fail for want of necessary parties and that a fresh suit was, therefore, necessary impleading all proper parties. The application was presented on February 15, 1940, and on the same day the learned Judge passed an order to the effect that he was satisfied that in the ends of justice, the plaintiffs may be allowed permission to withdraw the suit with liberty to institute a fresh suit in respect of the subject-matter on condition that the plaintiffs pay in cash full costs of the defendant in' this suit before the institution of a fresh suit.
3. On the next day, i.e., the 16th, the plaintiffs applied to the Court that the condition of paying the full costs imposed by the Court was not legal or in any case equitable, as even if the suit failed for want of necessary parties, i.e., on a preliminary ground, without being decided on merits, the costs payable to the other side would be only one-fourth of the full costs. The plaintiffs further stated that the condition being very heavy, they had not withdrawn the suit and that they would do so after it was revised. After hearing the other side, the Court dismissed that application on April 6. It appears that in the meanwhile, on February 21, the learned Judge had signed the bill of costs which was drawn up in pursuance of the order of the 15th. The defendant's pleader countersigned it, but the plaintiffs' pleader did not.
4. After the dismissal of their application on April 6, the plaintiffs on the same day applied again that the dismissal of their application was wrong, they had not withdrawn the suit which was still pending and that the Court should proceed with its further hearing. The Court dismissed that application also on the ground that the suit had been already withdrawn and had, therefore, come to an end on February 15 when the plaintiffs' first application for leave to withdraw was granted and that the bill of costs was also signed on February 21. The learned Judge relied on the decision in Shidramappa v. Mallappa (1930) 33 Bom. L.R. 278, for holding that once the suit had been withdrawn, it was no longer pending, that it must be taken to have been withdrawn when the order for withdrawal was passed and that the permission granted referred only to the filing of a fresh suit on certain condition. It is this order which is challenged by the plaintiffs in this revision application.
5. Order XXIII, Rule 1, of the Civil Procedure Code, provides:-
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 .... it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit ... with liberty to institute a fresh suit in respect of the subject-matter of such suit....
6. It is clear that if the plaintiff simply wishes to withdraw from a suit, he can do so without asking for any permission from the Court. But if he wishes to withdraw it with liberty to institute a fresh suit in respect of the same subject matter, he has to ask for permission from the Court, and it could be given on such terms as it thinks fit. It is further clear that the permission relates not to the withdrawal from the suit but to the filing of another suit.
7. There is a difference of opinion among the High Courts as to whether, after the Court grants permission to withdraw with liberty on certain conditions, the suit must be regarded as pending till the second suit is brought So far as our High Court is concerned, the view taken in Shidramappa v. Mallappa is that when once a suit has been withdrawn, it is no longer pending, and the permission given by the Court relates to the bringing of the fresh suit. A suit should be regarded as having been withdrawn when an order is made by the Court on the application to withdraw: see Jaimala Kunwar v. Collector of Saharanpur (1933) I.L.R. 55 All. 825 and Seethai Achi v. Meyyappa Chetti (1934) I.L.R. 57 Mad 892. This order, therefore, terminates the suit, although it is not a decree within the meaning of the Civil Procedure Code as held in Patloji v. Ganu (1890) I.L.R. 15 Bom. 370. and Kulandaivelu Nachier v. Ramaswami Pandia Thalvan (1927) I.L.R. 51 Mad. 664. It, therefore, follows that after the order is made permitting the withdrawal of the suit on certain conditions, it is not open to the plaintiff to ask the Court to modify or annul those conditions, because the suit has already ended when the order is made.
8. It is, however, contended on behalf of the petitioner that the Allahabad High Court has held in Rachhpal Singh v. Sheo Raton Singh : AIR1929All692 , that a suit is withdrawn after the plaintiff has accepted the terms imposed by the Court, and that it is, therefore, open to the plaintiff to ask for a modification of the terms or even to withdraw the application for the withdrawal of the suit even after the order of withdrawal is made by the Court. It is further contended that this decision has been quoted with approval in the case of Shidramappa v. Mallappa. It is true that this decision is referred to both by Patkar J. as well as Baker J. in Shidrappa's case. It is observed by Patkar J. as follows (p. 284):-
The question has been considered in the case of Rachhpal Singh v. Sheo Ratan Singh : AIR1929All692 , in which the view of the Calcutta High Court in Shital Prasad's case (1914) 19 C.L.J. 529, was not accepted, and it was held that once the plaintiff has accepted the terms imposed by the Court, the case is declared to be withdrawn and is no longer pending, and the plaintiff must comply with those terms strictly or take the consequences of being barred from filing a second suit.
9. Baker J. observes as follows with regard to that decision (p. 288):-
That judgment refers to all the authorities, and his conclusion, with which I agree, is that once the plaintiff has accepted the terms imposed by the Court the case is declared to be withdrawn and is no longer pending, and the plaintiff must comply with those terms strictly or take the consequences by being barred from filing a second suit.
10. These passages do not, in my opinion, indicate that our Court took the view that even after the order permitting the withdrawal of the suit on certain conditions was passed, it was open to the plaintiff to apply to the Court to modify the conditions or to proceed with the suit on the ground that he did not wish to accept the conditions imposed. On the contrary this view would be inconsistent with the decision in Shidramappa's case that the withdrawal takes place and the suit ceases to be pending when the order for its withdrawal is made. In fact, another passage in the judgment of the Allahabad High Court in Rachhpal Singh v. Shea Ratan Singh is to the effect that the Court will intimate to the plaintiff whether it is willing at all to give permission to file a fresh suit and if so on what, if any, terms; if the plaintiff accepts those terms, the order of withdrawal with those terms will be passed and the suit will cease to be a pending suit. It would thus appear that even according to that decision the non-acceptance of the terms by the plaintiff should take place before and not after the order of withdrawal is passed. In my opinion, therefore, once the order of permission to withdraw is made and the suit has ceased to exist, it is not open to the plaintiff to ask the Court to revive the suit on the ground of non-acceptance of the terms. No doubt cases may occur where it would be a hardship on the plaintiff if the Court imposes such terms for withdrawal as would be very difficult to fulfill, and the plaintiff might prefer to proceed with his suit in spite of its defect rather than to comply with the terms which he feels very hard. To obviate this result the plaintiff, while applying for withdrawal, might request the Court to acquaint him with the terms which it wishes to impose, before the final order is made. It is also open to the Court, without any such request to indicate such terms to the plaintiff, and after hearing the plaintiff it may modify them or even allow him to withdraw his application for withdrawal and proceed with the suit. But all this must be done before the order of withdrawal is formally made.
11. The order of the lower Court is, therefore, correct, and the rule is discharged with costs.