Norman Macleod, Kt., C.J.
1. The plaintiff file ft Suit No. 143 of 1917 in the Subordinate Judge's Court of Hubli on a certain cause of action. Ho withdrew that suit with permission of the Court under Order XXIII, Rule 1, alleging that on account of the mis-reading of one of the issues framed by the Court he was not refuly with his evidence on the day fixed for trial of the case. The Court made the following order :-
on condition that plaintiff pays defendants' costs and bears his own costs and pays defendants costs before filling a fresh suit, ho is under the circumstances mentioned in the application, permitted to withdraw with permission to file a fresh suit.
2. Therefore the condition precedent to his being allowed to tile a fresh suit was that he should pay defendants' costs. However, without paying the defendants' costs, he filed fresh Suit No. 92 of 1919. He paid the costs three days before the day fixed for the hearing of the evidence in the ease. The Court dismissed the suit on the ground that the suit being filed without, previous costs having been paid was bad ab initio. This order was confirmed in appeal. The plaintiff, however, considering that the permission given him by the Court in Suit No. 143 of 1917 was still surviving in spite of the second suit being dismissed, filed this third suit on the same cause of action.
3. It was argued that the dismissal of the previous suit amounted to rex judicata, and if that argument did not succeed, it amounted to a withdrawal without permission under para 1 of Order XXIII, Rule 1, Civil Procedure Code. Both these arguments failed to convince the Subordinate Judge who held that the present suit was maintainable, and dealing with the further issues, passed a decree in favour of the plaintiff' for possession.
4. In appeal the decree was confirmed.
5. We think that both these decisions were wrong on this very simple ground that the permission granted by the Court in the original suit would only extend to the filing of one fresh suit, and not to the tiling of any number of fresh suits, which might be dismissed each in its turn, without any trial on the actual merits of the case between the parties, for failure to pay the costs of the first suit. When the plaintiff had refused to comply with the condition on which alone he could file a second suit, he could not avail himself of the original permission of the Court for filing a third suit. That permission no longer remained in force. IF we were to accede to the argument of respondent No. 1 and uphold the decision of the lower Courts, we would be illegally extending the provisions of Order XXIII, Rule 1, in favour of the plaintiff, who would thus be allowed to harass the defendants with a succession of suits. The appeal must be allowed and the suit must be dismissed with costs throughout.