1. The original plaintiff has come here in appeal from an order, passed by the District Judge, Bhandara, summarily dismissing his appeal and confirming the order passed by the Civil Judge, Senior Division, Bhandara, that the suit filed by the plaintiff was not tenable because of failure of the payment of the costs of the previous suit which was withdrawn by him with the permission of the Court on condition that he would pay the costs before the institution of the second suit.
2. The plaintiff had filed a suit for a declaration of a right of way over, the Dhura between the fields of the plaintiff and the defendant and for a consequential permanent injunction restraining the defendant from obstructing him from the exercise of that right. At first the plaintiff had filed Civil Suit No. 113 of 1964 against the defendant for these reliefs. The plaint was defective and, therefore, he sought permission of the Court under Order 23, Rule 1, Civil Procedure Code to withdraw the suit with liberty to bring a fresh action on the same cause of action. The trial Court, therefore, passed an order permitting him to withdraw the suit but directed him to pay the costs of the defendant within two months of the date of that order or, at any rate, before the institution of a fresh suit. The present suit, with which we are concerned, was then filed on the same cause of action but the costs were not deposited either within two months of the date of the order or before the institution of the second suit. It appears that these costs were deposited on 1-7-1965 pending the second suit. The second suit was disposed of on 17th of September 1965. It is also common ground that the defendant's advocate Mr. Markandewar withdrew that sum on 24-12-65 pending the appeal before the District Judge, Bhandara. The defendant resisted the claim of the plaintiff stating that the suit was not tenable because he had no cause of action for this suit on account of his nonpayment of his costs before the institution of the suit or within two months after the permission, granted to him, to withdraw the first suit. According to him, the plaintiff had not complied with that order and, therefore, his suit should be dismissed.
3. The learned Civil Judge, Senior Division, framed a number of issues but dismissed the suit on the issue regarding the tenability of this suit. An issue 'Is the suit not tenable without payment of costs of the previous suit No. 114/1964 withdrawn by the plaintiff as contended in para 10 of the written statement?' was framed, and the learned Civil Judge found that the suit was not tenable. He, therefore, dismissed it on this finding on the preliminary issue.
4. The matter went up in appeal before the learned District Judge, and the learned District Judge also agreed with the view of the trial Court. Both the Courts below relied on a ruling in Shidramappa v. Mallappa, AIR 1931 Bom 257, which lays down a proposition that when once a suit is withdrawn it is no longer pending and the permission given by the Court relates to the bringing of a fresh suit. If permission to withdraw is granted subject to payment of defendant's costs before the institution of a second suit and if the plaintiff has brought the second suit without payment of the costs, then the second suit was barred as it was brought without fulfilling the conditions imposed in the first suit. Belying upon this proposition of law, both the lower Courts found that the second suit brought by the present appellant was not tenable.
5. The only point for determination therefore is to see whether the present suit was tenable without payment of the costs of the previous suit as was directed by the order passed by the first Court permitting the plaintiff to withdraw the first suit and file a second suit on the same cause of action. Now, it is, therefore, common ground that the plaintiff had filed a previous suit but because it was defective, therefore, he sought the permission of the Court to withdraw. He was allowed to withdraw, subject to a condition, that he should pay the costs of the defendant in that suit within two months of the date of that order (12th February 1965) or, at any rate before the institution of the fresh suit on the same, cause of action. The fresh suit was filed on 18-2-1965. He had not paid the costs before 18-2-1965. It is also common ground that he had also not paid the costs of the defendant within two months of 12th February 1965, i.e. on or before 12th of April 1965. He, however, deposited the costs on 1-7-1965, when the second suit was pending. The second suit was disposed of on 17th of September 1965. It is also common ground that the defendant's lawyer withdrew that sum on 24-12-1965 pending the appeal by theplaintiff, before the District Judge, Bhandara, against the order dismissing his second suit on the ground that he had not fulfilled the conditions as directed by the Court which allowed him to withdraw his first suit. The point, therefore, that arises here for consideration is to see whether, in these circumstances, his second suit can be tenable.
6. Order 23, Rule 1, Civil Procedure Code, is as follows:--
'Rule 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 such 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.
(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.' It will be seen from this rule that the plaintiff is at liberty under Sub-rule (1) to withdraw his suit or abandon part of his claim. That is in the fitness of things if the plaintiff wants to withdraw from the suit or abandon part of his claim against all the defendants or against some of the defendants, he should be at liberty to do so, but this withdrawal of his claim or abandoning part of his claim will not allow him to again institute a fresh action against his abandoned claim. If he wanted to institute a fresh suit after withdrawing his suit or abandoning part of his claim, then he will have to do so under Sub-rule (2). In that case the Court will also have to be satisfied that the reason given by the plaintiff for withdrawing his suit is proper. The Court is also entitled to lay down some conditions as it thinks fit before permitting the plaintiff to withdraw from such suit or abandon such part of the claim. It is only after the satisfaction of the Court and it is onlyafter the permission of the Court that the plaintiff can withdraw from such suit with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. But if he with-draws from a suit or abandons part of a claim without the permission of the Court, then under Sub-rule (3), the plaintiff is precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Therefore, without getting the permission of the Court, the plaintiff is barred from instituting any fresh action. Now, so far as the present case is concerned, the order passed by the trial Court is under Rule 1(2). What are the true effects of the conditions laid down by the first Court are the subject-matter of the rulings in many High Courts. The learned advocate for the appellant relies on Mela v. Labhu. . It is a decision by a Single Judge. According to him, a suit withdrawn with permission subject to a condition precedent can never amount to a withdrawal of a suit without permission even if the terms imposed by the Court are not fulfilled. Once an order was passed under Order 23, Rule 1 (2), the provisions of Order 23, Rule 1 (3), can never become applicable to that case. He observed that it cannot, therefore, be said that a Court entertaining the fresh suit gets its jurisdiction from the order passed under Order 23, Rule 1 (2), and, that therefore, it cannot try it unless the statutory condition subject to which the jurisdiction is conferred on the Court must be previously fulfilled. If a suit is filed, according to him, without payment of costs when liberty to file it has been given under Order 23, Rule 1 (2), then it merely amounts to an irregularity in the initial procedure which does not affect the inherent jurisdiction and competence of the Court to entertain a suit. If that be so, according to him, the non-payment of costs in a case where such payment had been made condition precedent for filing a fresh suit merely has a consequence of the suit being barred by law in terms of Order 21, Rule 1 (2), and all that a Court can do is to apply Order 7, Rule 11 (d). Civil Procedure Code and reject the plaint. According to him, the Court cannot dismiss a suit under such circumstances as distinct from rejecting a plaint. The learned Judge's attention was drawn to AIR 1931 Bom 257, but he was not inclined to agree with that view. Now the point therefore Is whether I should agree with this view of the learned Single Judge of the Punjab High Court.
7. We have the rulings of this Court also. The first is cited hi AIR 1931 Bom 257. This is a Division Bench Case where both the learned Judges gave their opinion. It was an appeal in which a suit was allowed to be withdrawn andthe order passed was that the plaintiff was to pay the defendant's costs and that ha should not be allowed to bring a fresh suit unless he paid the defendant's costs of that suit. He filed a second suit on the same cause of action but without payment of the costs and therefore without fulfilling the condition attached to the permission given to bring a fresh suit. It appears there was some defect in the second suit also and three days later the plaintiff withdrew that suit also. According to the order, the plaintiff was to withdraw with liberty to bring a fresh suit on the same cause of action. The plaintiff was to pay the defendant's costs and bear his own. Three days after the second suit was withdrawn the costs in the first suit were paid to the defendant and after five days, the third suit was instituted without paying the costs of the second suit. The trial Court held that the third suit was not valid in law but the learned District Judge relying on Sital Prasad v. Gava Prasad (1914) 23 Ind Cas 210 thought that until there was such withdrawal by payment of costs the former suit was still pending and, according to him, the plaintiff fulfilled the condition precedent in the first suit. He therefore set aside the order of dismissal and remanded the case for trial according to law. This Court in this case discussed the conflict of decisions on the question as to the result of non-observance of the conditions attached to the permission to bring a fresh suit under Order 23, Rule 1, C. P. C. The learned Judges of this Court in that appeal discussed the view of the Madras High Court which dissented from the view taken by the Calcutta High Court. The learned Judges of this Court were inclined to agree with the view of the Madras High Court and they most respectfully dissented from the view of the Calcutta High Court. That view is that the withdrawal of the suit does not require the permission of the Court as laid down in Order 23, Rule 1(1). It must be taken that the first suit is withdrawn when the order is passed and that the permission granted refers only to the filing of the subsequent suit on certain conditions and that if the first suit was considered as pending, it would be open to the plaintiff instead of complying with the condition of the permission, to go to the Court and demand that the trial of the first suit should be proceeded with however long the interval might be. This Court agreed with the view taken by it in Ambubai v. Shankarsa : AIR1925Bom272 . This Court also thought that cases cited in AIR 1921 Cal 34, Hriday Nath Roy v. Ram Chandra Barna and in AIR 1922 Pat 44. Rai Kumar Mahtan v. Ram Khelawan Singh were not on the point under consideration. After considering all this case law, the learnedJudges of this Court in the appeal before them AIR 1931 Bom 257, found that the costs ordered to be paid in the first suit ought to have been paid before the institution of the second suit, and that it cannot be said that the condition imposed in the first suit was fulfilled by payment of the costs after the disposal of the second suit when the costs ought to have been paid before the institution of the second suit. But the learned advocate for the appellant here says that that is a case in which there was a condition precedent regarding the payment of the costs. According to him, that is not so in our case. It will be difficult for me to agree. The order in our case is that the plaintiff should pay the costs of the defendant within two months of the date of that order or, at any rate, before the institution of the fresh suit on the same cause of action. The order, in effect, according to me, is subject to a condition precedent.
8. We have also a later case of this High Court in Ramkrishna Timmappa v. Hanumant Patgavi : AIR1950Bom113 . That is also a Division Bench case. In that case also Order 23, Rule 1, C.P.C. was discussed at length. The learned Judges agreed with the view taken by this Court previously in AIR 1931 Bom 257 and also : AIR1925Bom272 . They did not agree with the Calcutta and the Patna High Court's view taken before. Accordingly, therefore, they observed that where a plaintiff is allowed to withdraw his suit with liberty to bring a fresh suit upon condition that he should pay the costs of the defendant before the institution of a fresh suit, the condition imposed must be strictly complied with and if the plaintiff brings a fresh suit without paying the costs, then the suit is not properly framed and is liable to be dismissed. But this was also a case where the pleader for the plaintiff had offered the payment of costs while the appeal against the suit was pending before the District Court and the pleader for the defendant accepted that payment of the costs. They filed a joint purshis to the effect that the plaintiff had fulfilled the conditions laid down as precedent to his being entitled to file the suit and therefore, the suit might be taken as competent as from that date. The Court considered the effect of this purshis which was jointly submitted to the Court by the pleaders of both sides. Confining themselves to the position as it arose in that case, they held that because the costs paid were accepted by the defendant in fulfilment of the conditions imposed for the institution of the second suit, this action on the part of the defendant removed the bar of the institution of the second suit, a bar which was imposed in his interest and for his benefit. According to thelearned Judges, it was open to a party to renounce the benefit that a law or a contract conferred on him provided such renunciation was not opposed to the principles of public policy as laid down in Graham v. Ingleby. (1848) 1 Ex. 651 = 74 R. R. 808. Now, therefore, the learned advocate for the appellant says that in so far as the instant case with which we are concerned is also more or less similar to the case in : AIR1950Bom113 .
9. According to the learned advocate for the appellant, the plaintiff had deposited all the costs of the defendant on 1-7-1965 a little before the disposal of the second suit. His contention is that because the learned advocate for the defendant had withdrawn the sum on 24-12-1965 pending the appeal it is as good as the acceptance by the defendant of the costs. The learned advocate therefore contends that this conduct on the part of the defendant's advocate shows that there was a waiver on his part and accordingly, therefore, the plaintiff had fulfilled the condition laid down in the order passed by the trial Court. On the contrary, the learned advocate for the respondent says that this is not so. After all, the defendant was entitled to costs and therefore he had withdrawn the costs but long after the plaintiff had deposited and without saying that the plaintiff had fulfilled the condition laid down in the order and that he had accepted so. Now what is 'waiver'? 'Waiver', according to Halsbury's Laws of England, Third Edition. Vol. 14 para 1175, is the abandonment of a right, and is either express or implied from conduct. A person who is entitled to the benefit of a stipulation in a contract or of a statutory provision may waive it and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted upon it is sufficient consideration. Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right. Now, can we say that because the defendant's lawyer had withdrawn this sum long after the plaintiff had deposited, the conduct of the defendant implied a waiver. The condition was that the plaintiff should pay the costs before the institution of the second suit or, at any rate, within two months from the passing of the order. He did not do so. It appears he slept over the matter until 1-7-1965. He deposited on that date perhaps at the fag end of the proceedings, although a preliminary issue was being tried on the tenability of the suit. In fact, the suit was dismissed on a finding on that preliminary issue. The defendant did not withdraw the costs at all till the disposal of the suit. This conduct clearly showsthat he could not have any intention to waive his right. If he wanted to waive, he could have withdrawn the deposited costs before the disposal of the suit perhaps with even the Purshis, as we find in AIR 19.50 Bom case; we do not see any such thing from the record. In fact, there is no record of the withdrawal by the defendant's lawyer in the record which has come to us here. Therefore, these circumstances, in my view, clearly show that there was no waiver on the part of the defendant. If that is so, then this Court's ruling in : AIR1950Bom113 will not be of any help to the learned advocate for the appellant. In that case, therefore, it is easy to find that the appellant having not fulfilled the condition this appeal should fail.
10. But the learned advocate for the appellant relies on certain observations in Mahantharam Das v. Ganga Das : 3SCR763 as well as Sangram Singh v. Election Tribunal : 2SCR1 . Their Lordships of the Supreme Court in : 3SCR763 were discussing sections 148 and 149 of the C. P. C. While dealing with orders passed, the Supreme Court observed that the orders with which they were concerned in that case, turned out, often enough to be inexpedient. According to the Supreme Court, such procedural orders, though peremptory (condition-al decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. The Supreme Court in AIR 1955 SC case above cited observed that a Code of Procedure must be regarded as such; that it is procedure something designed to facilitate justice and further its ends; that it is not a penal enactment for punishment and penalties and that it is not a thing designed to trip people up; that too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. According to the learned advocate therefore we have to very liberally construe the provisions of the Civil Procedure Code and not to take a very strict view. Now these observations were in the context of the facts and circumstances of that case and I do not think these observations will be helpful to the learned advocate in regard to the facts and circumstances and the provisions of the Civil Procedure Code with which we are concerned.
11. Therefore, this appeal should fail. I, therefore, confirm the order of the trial Court and dismiss the appeal with costs.
12. Appeal dismissed.