Bishen Narain, J.
1. This second appeal raises a question as to the effect of non-observance of the conditions under which a suit is allowed to be withdrawn with liberty to bring a fresh suit.
2. Mela and Ganda instituted a suit on I5-I-1949 for a declaration that the entries in the revenue papers are wrong and that in fact the plaintiffs are the owners and are as such in possession of the disputed land and the defendants have no rights therein. This suit was, however, withdrawn under Order 23, Rule 1, Civil P.C.. and the trial Court on 30-11-1949 passed an order granting permission to the plaintiffs to withdraw the suit and they were allowed to institute a fresh suit in respect of the same subject-matter. The plaintiffs were, however, ordered to pay costs of the suit to defendant 1 and counsel's fee was assessed at Rs. 10/-. But it was ordered that the plaintiffs will not have the right of filing a fresh suit without first paying the costs of the present suit. The plaintiffs after three days instituted the present suit on 3-12-1949. The next date fixed in the case was 3-2-1950 when, the defendants filed their written statements and objected to the competency of the suit on the ground that the costs of the previous suit had not been paid.
A preliminary issue was framed by the trial Court on the same day and at about the sametime the plaintiffs made a written application for permission to deposit the costs of the suit and this permission was granted and the amount was deposited the next day. All these above facts are admitted by the parties to be correct, and the ' learned counsel for the defendants respondents has also admitted that if the suit had been filed on 4-2-1930 after deposit of the costs, no objection like the present one could have been raised 011 any ground whatsoever. Both the lower courts have dismissed the suit on the ground that the present suit was not competent inasmuch as the costs had not been paid in accordance with the-order dated 30-11-1919 before institution of the present suit, and the plaintiffs have come to this Court in second appeal, and I have heard Mr. Shamair Chand, the learned counsel for the appellants in support of it.
3. Order 23, Rule 1, Civil P. C., reads as far as it is relevant in the present case, as follows--
'23.1. (1) At any time after the institution ofa suit the plaintiff' may, as against ail or any of the defendants, withdraw his suit or aban- don part of his claim.
(2) Where, the Court is satisfied--(a) that a suit must fail by reason of someformal defect, or
(b) * * * * *
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.'
Order 23, Rule 2 lays down that the plaintiff shall be bound by the law of limitation in the same manner as the first suit had not been instituted on permission granted under Order 23, Rule 1, Civil P. C. The Civil Procedure Code does not deal at any place with the consequences of the with- drawal of a suit excepting under Order 23, Rule 1, and this Rule does not specifically lay down that if a suit is withdrawn with liberty to file a fresh suit, then the fresh suit will not be competent unless the terms on which the suit is allowed to be withdrawn are performed previously, and it is obvious that this could not have been provided in the statute because the terms need not necessarily lay down any condition precedent which must be fulfilled before a fresh suit can be filed. It is, however, clear from the wording of Order 23, Rule 1(2) that the terms on which the plaintiff is allowed to withdraw the suit must be complied with. If the Court allowing withdrawal of the first suit merely orders that the costs are to be paid, then there is no doubt in my mind that the fresh suit can be filed leaving the defendants to realise their costs in accordance with law. Therefore there is no want of inherent Jurisdiction in' the Courts to entertain the fresh suit.
When a suit is allowed to be withdrawn with leave to bring a fresh suit under Order 23, Civil P. C.. it should be regarded as never brought. It is available for no purpose. It dons not save or give a fresh start to limitation, nor does it afford a fresh cause of action (vide observation of Suhra-wardy J. in -- 'Becharam Choudhuri v. PurnaChandra', AIR 1925 Cal 845 at pp. 851-852 (FB) (A)). Civil Courts entertain a suit under Section 9, Civil P. C. Therefore, Order 23, Rule 1, does not affect the Jurisdiction of civil Courts to entertain a suit, and it neither confers nor takes away any jurisdiction vested in them. Order 23 does not even lay down that the jurisdiction vested in law will not be exercised unless certain statutory conditions are fulfilled. It is true that the conditions imposed by the Court allowing the plaintiff to institute a fresh suit are binding on the parties, but the statute does not provide consequences which must follow if those conditions are not fulfilled and one must look to some other provision of law for that purpose.
If the legislature intended to bar a fresh suit in case the conditions imposed by Court under Order 23, Rule 1(2) are not fulfilled, it could have done so particularly when it proceeds to provide in Sub-clause (3) that if a suit is withdrawn without permission, then a fresh suit in respect of the same subject-matter is barred. I may here state that in my opinion a suit withdrawn with per-mission subject to a condition precedent tan never amount to a withdrawal of a suit without permission even if the terms imposed by the Court are not fulfilled. Once an order is passed under Order 23, Rule 1(2) the provisions of Order 23, Rule 1(3) can never become applicable to that case. 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 therefore it cannot try it unless the statutory condition subject to which jurisdiction is conferred on the Court must be previously fulfilled. The principles applicable to cases where Courts have no jurisdiction unless the statutory conditions are fulfilled are not applicable to cases like the present one and therefore decisions under Section 80, Civil P. C., or under Clauses of Letters Patent giving jurisdiction to High Courts on the original side are not applicable.
At this stage I may refer to the decision by their Lordships of the Privy Council in -- 'Ohene Moore v. Akesseh Tayee', AIR 1935 PC 5 (B), wherein it was observed--
'It is to be remembered that all appeals in this country and elsewhere exist merely by statute and unless the statutory conditions are fulfilled no jurisdiction is given to any Court of Justice to entertain them.'
In my opinion this decision has no application to the present case because no such statutory condition has been enacted in Order 23, Rule 1(2) which must be fulfilled before Court gets jurisdiction to entertain the fresh suit. Another aspect of the matter is that this Court has ample power under Section 115, Civil P. C., or Article 227 of the Constitution of India to amend the terms imposed under Order 23, Rule 1(2), whether a High Court calls for the record 'suo motu' or otherwise before or after the institution of the fresh suit in the interests of justice. If this be so the fresh suit filed without fulfilling the conditions imposed by the Court when granting leave must be considered to be validly instituted If the terms are amended by the High Court subsequently removing the conditions precedent Imposed. This result could never be achieved in cost like the case reported in AIR 1935 PC 5 (B).
4. Therefore, if a suit is filed without payment of costs when liberty to file it has been given under Order 23, Rule 1(2), then, in my opinion 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, the non-payment oi costs in a case where such payment has been made condition precedent for tiling a fresh suit, merely has a consequence of the suit being barred by law in terms of Order 23, Rule 1(2), Civil P. C., and all that a Court, can do is to apply Order 7, Rule 11(d), Civil P. C. and reject the plaint. It is not clear to me, however, now the Court can dismiss a suit under such circumstances as distinct from rejecting a plaint. It has been laid down in -- 'Bachchu Singh v. Secy. of State', 23 All 107 (C), that non-compliance with the; provisions of Section 80, Civil P. C., involves rejection of the plaint and not dismissal of the suit. If the plaint is rejected then a fresh suit can always be filed after fulfilling the required conditions.
I am therefore of the opinion that in such circumstances the Court should exercise its discretion and stay the proceedings till the plaintiff fulfils the required conditions instead of rejecting the plaint immediately. Of course if the plaintiff fails to fulfill the conditions within a reasonable; time, then the Court must reject the plaint leaving it open to the plaintiff to file a fresh suit within limitation if so advised alter fulfilling the conditions but the Court cannot dismiss the suit which would bar a fresh suit.
It was held in a case similar to the present one in -- 'Abdul Aziz Molla v. Ebrahim Molla', 31 Cal 965 (D), that such a suit is not void 'ab initio' and that subsequent payment of costs will cure the irregularity in filing the suit and it was suggested in that judgment that the suit should be stayed till costs are paid subject of course to any question of limitation that the defendant might raise as contemplated under Order 23, Rule 2, Civil P. C. A similar view was taken in the Calcutta High Court in cases reported as -- 'Gopi Lal v. Naggu Lal', 10 Ind ' Cas G (Cal) (E);
-- 'Sajjad Hossain v. Ram Lal Shahu', 15 Ind Cas 159 (Cal) (F) , and -- 'Amir Hushen v. Abdul Bari Khan', AIR 1943 Cal 560 (G).
5. The Allahabad High Court in. -- 'Jadu Tell V. Mahboob Raza Khan', AIR 1933 All 810 (H), has also taken the same view after overruling
-- 'Rachhpnl Singh v. Sheo Ratan Singh', AIR 1929 All 692 (I), that if the non-payment of costs before the institution of the suit is considered to be a defect as to make the suit premature, then the plaintiff can file another suit after he has made the deposit. It was further observed in that case that in any ca.se the Court can certainly treat the plaint as having been filed on the day on which dppmit was made. The Patna and the Naspur High Courts have also taken a similar view, vide -- 'Dindayal Rai v. Indrasan Rai', AIR 1926 Pat 472 (J), and -- 'Narsingh v. Nathuji, AIR 1929 Nag 135 (K).
6. The learned counsel for the respondents, Mr. K.C. Nnyar, has drawn my attention to two Bombay cases in which, according to him apposite view has been taken. In -- 'Shidramappa Mutappa v. Mallappa Ramchandrappa', AIR 1931 Bom 257 (L) Baker J. following AIR 1929 All 692 (I), expressed himself in these terms:
'There is no reason why it the permission to file a second suit bad been granted subject to a condition, the plaintiff should not be held strictly to THAT condition and his second suit dismissed if be attempus to the it without having ruff lied the condition on which he secured permission.'
The facts in that case were that the plaintiffs after withdrawing their trust sun, on terms filed a second suit without, irulfilling the conditions and withdrew it and then filed a third suit without paying costs of the first and the second suns and under these circumstances the learned Judge relied on AIR 1929 AU 692 (i) which it will be observed has been overruled by the Allahabad High Court in AIR 1933 All 810 (H). It is correct that the plaintiff must fulfil conditions imposed on him under Order 23, Rule 1(2), but failure to do so entails at the most rejection of the plaint and not dismissal of the suit. In -- 'Ramkrishna Tim-mappa v. Hanumant Patgavi', AIR 1950 Bom 113 (M), this question was left open by observations :
'We do not wish to express any opinion as to the effect of the payment of costs after the institution of the suit.'
And therefore this decision is of no assistance at the present case and it cannot be said that the view of the Bombay High Court is opposed to the view I have taken above.
In -- 'Ma San Myint v. U Tun Sein', AIR 1939 Rang 378 (N), a Single Judge of that Court held in circumstances similar to those in the present case that if the suit is filed before payment of costs, then the second suit- is void 'ab initio'. For this conclusion Ba U.J. has relied on -- 'De Souza v. Coles', 3 Mad HCR 364 (O), but that decision relates to construction of Clause 10 of Letters Patent from which it is obvious that the Court on the original side had no jurisdiction at all to entertain the suit unless leave is previously obtained for entertainment of such a suit, and as I have already stated that principle has no application to a case like the present one.
The learned counsel, for the respondents has drawn my attention to a Single Bench decision in 'G. Seshayya v. N. Subbayya', AIR 1924 Mad 877 (P), where it was held that the Court has no jurisdiction to entertain a fresh suit if costs are not paid prior to its institution and in that case reliance was placed on Order 23. Rule 2(3), which precludes a Court from entertaining a second suit when no permission has been granted. With sue respect to the learned Judge I am of opinion as stated above that Order 23, Rule 2(31 can never come into operation once leave to file a fresh suit is granted although certain conditions have been imposed by the Court while granting the necessary leave. I am, therefore, of the opinion that the cases cited by the learned counsel for the respondents are of no assistance to him.
7. I am fortified in my view by the consideration that leave to withdraw a suit is to be granted by the Court under Order 23, Rule 1(2) (a) on ground of some formal defect or under Rule 1 (2) (b) on some sufficient grounds which have been construed by the Courts as on grounds of the same nature as specified in Sub-clause (a), vide observations of Mookerjee J. in -- 'Kharda Co. Ltd. v. Durga Charan Chandra', 5 Ind Cas 187 (CaD (Q). , Thus the leave is to be granted on grounds of formal defect or on analogous grounds. In such circumstances it would be extremely inequitable that the plaintiff should lose valuable rights or claim by merely filing a suit without complying with the conditions which in the very nature of things cannot bear any proportion to the stake involved in the litigation. In the present case the costs have been assessed to be Rs. 20/-, while the suit involved a claim relating to 3 kanals 10 marlas of land. It appears to me to be extremely inequitable that in such circumstances the plaintiff should be precluded from asserting his claim to this area of land.
I can visualize cases where costs to be paid before institution of the suit may not amount to more than a few hundreds of rupees while the claim involved may extend to lacs. The object of all rules of procedure is to advance Justice and mitigate hardship. After all Courts of law are -not meant for enforcing discipline but their aim is to do substantial justice between the parties and therefore construction should be placed on a statute if at all possible which advances this aim.
8. A similar provision is found in Order 33, Rule 15, Civil P. C., which reads:
'An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by Mm in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs (if any) incurred by the State and by the Opposite Party in opposing his application for leave to sue as a pauper.'
I am not called upon to construe this provision of law, but I am of the opinion that decisions under Order 33. Rule 15, are relevant for the decision of the question involved in the present case. It will be observed that there is a marked distinction in the language of the first part of the rule and the latter port. Dismissal of a pauper application is to be a bar to a similar application, but it is not provided in terms that non-payment of the costs of pauper application is to be a bar to an ordinary suit.
It was laid down in -- 'Abdul Rahman v. Arm-nabi Syed Lal', AIR 1943 Bom 409 (R), that under Rule 15 the payment of costs of a pauper application directed to be paid is not a condition precedent to the institution of an ordinary suit and can be waived, and it was further laid down that the costs, however, must be paid and if they are not paid and the matter is brought to the notice of the Court, then the Court should reject the plaint on presentation, or subsequently stay the suit pending their payment but the Court is not bound to dismiss the suit. The order of the Court in the previous suit by the present appellants is almost in the same terms as a second portion of Order 33, Rule 15, and therefore the construetion placed thereon is helpful in deciding the present appeal. A similar view was taken in -- 'Rama-krishna Nadar v. Thirumalai Vandaya Thevar', AIR 1936 Mad 24 (S).
I am conscious of the fact that a different view was taken in -- 'Sham Sundar Lal v. Mt. Savitri Kunwar', AIR 1935 All 723 (FB) (T), where it has been laid down that the suit was not competent unless the costs were paid before institution and their Lordships of the Allahabad High Court based their decision on the case reported in AIR 1935 PC 5 CB), but with due respect to the Judges of the Allahabad High court I am of the opinion that the principles laid down in AIR 1935 PC 5 IB), as stated above, have no application to Order 23, Rule 1(2), Civil P. C. Moreover, it is not open to Courts of law to amend the conditions laid down under Order 33, Rule 15, Civil P. C., but the High Courts can always amend the conditions laid down under Order 23, Rule 1(2), and for this reason also I am of the opinion that the strict interpretation which found favour with the Allahabad High Court cannot be applied to the present case.
9. Another similar provision is to be found in Section 17, Provincial Small Cause Courts Act, the relevant portion of which reads as follows:
'Provided that an application for an order to set aside a decree passed 'ex parte' or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give Such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.'
Thus, this section contemplates that costs must be said or security must be given at the time of presenting the application, and it was held in -- 'Jeun Muchi v. Budhiram Muchi', 32 Cal 339 (U), that when the applicant did not comply with all the formalities required under this section even then it must be considered that the application was pending on the day when the security was actually deposited and the application therefore might well be treated as having been perfected on that day; the position of the applicant ought not to be worse than what it would have been, if he had presented the application along with the security subsequently 'and to hold otherwise would lead to the conclusion that the petitioner ought to be punished for his diligence in presenting the application earlier than he need have done under the law.' The underlined (here in ' ') passage fully applies to the facts of the present case.
A similar view was taken in -- 'Assan Mohamad Sahib v. Rahiman Sahib', AIR 1920 Mad 562 (PB) (V) and -- 'Mohan Lal v. Firm Muni Ram Nand Lal', AIR 1940 lah 62 (W), which follows
-- 'Tarachand Hirachand v. Durappa Tavanappa, AIR l943 Bom 237 (X), which is also to the same effect.
10. For the reasons given above, I am of the opinion that the lower Courts were wrong in dismissing the present suit and that at best the plaint could have been rejected. The consequenceof the rejection of the plaint, however, would have been that a fresh suit could have been filed on 4--2-1950 and therefore in the circumstances the Courts would have been well-advised to have stay-ed the proceedings till the defect in the filing of I the suit was cured. The costs were deposited on 4-2-1950 and therefore no defect exists in the pre-sent suit at the present time. (11) I therefore accept this appeal, set aside the orders of both the Courts and remand the case to the trial Court for decision on merits in accordance with law. There will be no order as to costs' of these proceedings. The parties have been directed to appear before the trial Court on 1-11-1954.
12. Court-fee paid on this appeal be refunded.