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Rahim Ali and ors. Vs. Yehia Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1928All402a; 114Ind.Cas.910
AppellantRahim Ali and ors.
RespondentYehia Khan and ors.
Excerpt:
- .....where a suit was withdrawn by a plaintiff under order 23, rule 1, with permission to bring a... fresh suit. this was followed by a bench of two judges of the madras high-court-in-arunachallam v. lahshmana [1916] 39 mad. 936. both courts relied upon the specific provisions of rule 2, order 23 that if any fresh suit is instituted with permission granted under rule 1, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. in the present case arrears of rent for rabi 1325 fasli and 1326 fasli were sued for on 17th july 1922, i.e., more than three years after the accrual of the cause of action. the period of limitation was sought to be extended according to the provisions of section 14, lim. act, on the ground that these.....
Judgment:

Dalal, J.

1. The question of law arising in this second appeal is covered by authority. In Varaj Lal v. Someshar [1905] 29 Bom. 219 a Bench of two Judges of the Bombay High Court held that the provisions of Section 14 were not applicable where a suit was withdrawn by a plaintiff under Order 23, Rule 1, with permission to bring a... fresh suit. This was followed by a Bench of two Judges of the Madras High-Court-in-Arunachallam v. Lahshmana [1916] 39 Mad. 936. Both Courts relied upon the specific provisions of Rule 2, Order 23 that if any fresh suit is instituted with permission granted under Rule 1, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. In the present case arrears of rent for Rabi 1325 Fasli and 1326 Fasli were sued for on 17th July 1922, i.e., more than three years after the accrual of the cause of action. The period of limitation was sought to be extended according to the provisions of Section 14, Lim. Act, on the ground that these claims were included in a previous suit filed on 27th April 1921 in which suit it was not possible to recover them because the suit included a claim for the recovery of rent due on another holding. Under the terms of the Tenancy Act there ought to be a separate suit for the recovery of rent of every separate holding. The argument would have been sound if the Court itself, where the first suit was instituted, had dismissed this claim on account of misjoinder of causes of action. Unfortunately for the plaintiff he withdrew his claim under Order 23, Rule 1, with permission to bring a fresh suit on the same cause of action. This proceeding attached to his action the disability of Rule 2, Order 23. The Full Bench ruling of this Court in Mathura Singh v. Bhagwan Singh [1900] 22 All. 248 dealt with a case where the Court itself in which the first suit was instituted dismissed it by reason of misjoinder of causes of action. That is not a withdrawal under Order 23.

2. Another argument was raised that one of the respondents had died prior to the passing of the decree of the lower appellate Court, and so the trial Court's decree could not be reversed. There were, however, other defendants who could appeal and the reasoning of the lower appellate Court is common to all the appellants. When the appellate Court reversed the decree of the trial Court the reversal would enure to the benefit of all the defendants even if one of them dropped out during the appeal to the lower appellate Court.

3. I dismiss this appeal with costs.


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