1. The respondent in both these appeals is one Subbayya, the adopted son of Ramachandrudu. He was dissatisfied with his father's misconduct and spendthrift ways and, consequently, wanted to file a suit for partition of the family property. As he had not sufficient funds to finance this litigation, he entered into relations with the appellant Seshayya who is a private vakil. On the 1st of November, 1916, Subbayya executed a sale deed in favour of Seshayya for Rs. 1,000, under which he sold one-half of his share in the family properties. Admittedly the consideration was fixed at a low figure on the ground that Subbayya's father was wasting the family property and alienating the same and that consequently the properties that would be recovered for Subbayya's share might be considerably less than what he really ought to have. It is found that Seshayya paid a sum of Rs. 600 towards the consideration for the sale deed, and a suit was filed by Subbayya and Seshayya jointly in 1918. A decree was obtained under which Subbayya was to get as his half share of the property all the properties which had not been alienated by his father, leaving the validity of the alienations undetermined. Before the decree was passed Subbayya agreed to certain items being decreed in favour of Seshayya and the remainder was to fall to his share. Subsequently Subbayya appears to have thought that he had been defrauded and he filed a suit, O.S. No. 641 of 1919, to set aside the sale deed in favour of Seshayya. That suit was withdrawn with leave to bring a fresh suit on condition of Subbayya paying the costs of the suit. Subbayya then filed his present suit, O.S. No. 195 of 1921, in which he again seeks to set aside the sale deed. Seshayya has also filed a suit O.S. No. 505 of 1921 in which he seeks to recover the property decreed to him in the prior litigation alleging that he obtained delivery through Court of the property decreed to him but that subsequently the plaintiff has obstructed his enjoyment. Subbayya's suit has been decreed and at the same time Seshayya has been given a charge upon the properties for Rs. 600 with interest. Seshayya's suit for possession has been dismissed. Hence these two appeals.
2. The first point for consideration is whether Subbayya's suit is not barred by reason of Order 23, Civil Procedure Code, for it is admitted that he did not pay the costs of his first suit until after the close of the trial in the present suit; and it is contended that he is precluded from filing a fresh suit until he has complied with the condition imposed. In Fischer v. Nagappa Mudali ILR (1909) M 258 it was held, that when an order had been made giving permission to bring a fresh suit on condition of paying the costs before a specified date, a subsequent suit was barred if the costs had not been paid by that date. That case differs from the present in that the date was specified for payment of costs, whereas the order in the case under consideration does not specify any date. Without expressing any opinion as to the correctness of the decision in Abdul Aziz Molla v. Ebrahim Molla ILR (1904) C 965 that case was distinguished. In that case it was held that subsequent payment of costs was sufficient to warrant the reception and trial of a fresh suit which had been allowed to be brought on condition of those costs being paid. In that case the costs were paid before the suit was tried. This has been followed in a later case reported in Shital Prosad v. Gaya Prosad (1914) CriLJ 529 where the question is discussed somewhat fully and the reasoning adopted for the conclusion is as follows:-'It is said that, inasmuch as permission to withdraw and bring a fresh suit is made conditional on a certain payment, the original suit cannot be deemed to be withdrawn until those costs have been paid and it must, therefore, be deemed to be a pending suit which becomes disposed of as soon as payment is made.' This case was followed in Kuldip Singh v. Kuldip Choudhuri (1917) 3 Pat. L.J. 63 and also in Deb Kumar Roy v. Debnath Barnes 64 IndCas 738, but I can find no authority in this Court for holding this view which, with all respect, appears to me to be incorrect. These cases all assume that the permission granted by the Court is not only permission to bring a fresh suit but also permission to withdraw the first suit, and that consequently until the condition is fulfilled the first suit is pending. This seems to me to overlook the provisions of Order 23, Rule 1(1) which gives a plaintiff power to withdraw his suit at any time without the permission of that Court. Consequently, I think that we must read the latter part of Clause 2 (b) as referring not to permission to withdraw a suit as well as permission to institute a fresh suit, but merely as allowing the Court to give permission to institute a fresh suit in place of the one which has been withdrawn. Inasmuch as the withdrawal of the suit does not require the permission of the Court, 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. If the first suit is still pending as held in the above cases, it would be open to the plaintiff to obtain permission under Order 23, and instead of complying with the conditions of that permission, to go to the Court and demand that the trial on his first suit should be proceeded with and this could be done however long the interval might be. For these reasons I am unable to accept the view that the first suit is still pending, for it has been withdrawn and that withdrawal, in my opinion, takes effect from the date of the Court's order. If the Calcutta view were to be applied in the present case, it would appear, as observed in those judgments, that the trial of a second suit is barred under Section 10, Civil Procedure Code, until the first suit is disposed of by performance of the condition imposed by the order granting leave. In the present case, therefore, the whole of the trial of the suit which took place, before the costs were paid, would be bad under Section 10, Civil Procedure Code, for want of jurisdiction and the whole suit would have to be tried again. There is another case in the Calcutta High Court reported in Sajjad Hossain v. Ram Lal Sahu 15 IndCas 159 where it was held that payment might be made after the institution of the suit but that suit would not be deemed to be validlv instituted until the date of such payment. In the view that I take, I would follow Fischer v. Nagappa Mudali ILR (1909) M 258) and hold that it extends, as was held in Hari Nath Dass v. Syed Hossain Ali 3 CriLJ 480 and Subal Chandra v. Mosaraf Ali 38 IndCas 476, to cases where no time is fixed for fulfilling the condition.
3. In support of the view held by the Calcutta High Court, reference has been made to other cases in which similar conditions were held not to be mandatory, Ramayyangar v. Krishnayyangar ILR (1886) M 185 with reference to the provisions of Section 539, Civil Procedure Code, Ammukutty v. Manavikraman ILR (1920) M 793 with reference to the permission necessary to bring a suit against a receiver and Mahomed Azmat Ali Khan v. Lalli Begum ILR (1881) C 422 with reference to the certificate requisite for bringing a suit under the Pensions Act. I do not attach much importance to these cases, for in all of them the Court prima facie has jurisdiction to try such suits; and, beyond imposing a condition precedent, none of the provisions referred to take away the jurisdiction of the Courts; whereas under Order 23, Rule 2(3) a Court is definitely precluded from entertaining a second suit when no permission has been granted. Unless, therefore, permission has been given, a Court is specifically forbidden to entertain a second suit.
4. In this view, Subbayya's suit is barred under Order 23 and must be dismissed. Second Appeal No. 203 must, therefore, be allowed and the suit dismissed with costs throughout to be paid by 1st respondent.
5. As regards Second Appeal No. 204, the Subordinate Judge has found that the sale deed in favour of Seshayya is 'vitiated by undue influence and fraud and cannot be enforced' and, consequently, has dismissed the suit ' which is based upon it. ' I may observe here that the suit is not based upon the sale deed but upon the decree obtained in pursuance of that sale deed, namely, the decree in O.S. No. 12 of 1918. In giving his finding the Subordinate Judge does not definitely specify the facts which he finds to be sufficient to prove undue influence and fraud. In the plaint the plaintiff stated that the sale deed was brought about owing to several misrepresentations specified in paragraph 4, but there is no finding by the Subordinate Judge that these misrepresentations were made, and apparently the statements set out in the plaint are substantially correct. The cases relied upon by the Subordinate Judge for holding that the sale deed is invalid are merely cases in which the transactions were set aside as being hard, unconscionable and opposed to public policy. Chunni Kuar v. Rup Singh ILR (1886) A 57, Loke Indar Singh v. Rup Singh ILR (1888) A 118 and Husain Bakhsh v. Rahman Husain ILR (1888) A 128. It has been held that in this country champerty is not necessarily opposed to public policy; and in considering whether champertous agreements should be set aside, it has to be considered whether such an agreement is extortionate and unconscionable, or one made for the purpose of gambling in litigation or of injuring or oppressing others by encouraging unrighteous suits, in which case it would be contrary to public policy and unenforceable. These facts do not seem to have been considered by the Subordinate Judge. He has not found what the facts were which made the bargain unconscionable or otherwise opposed to public policy. He finds that property worth Rs. 2,000 was sold for Rs. 1,000 and that Rs. 600 cash was actually paid as consideration. The properties which have passed under the sale deed are, no doubt, worth Rs. 2,000, but it was by no means certain that the plaintiff's suit would be successful, or, at any rate, successful to such a large extent. Half of the family property had been alienated and, if those alienations had been found to be valid, Subbayya's share would have come to Rs. 1,000 or less, the consideration agreed to be paid, to which must be added additional compensation for Seshayya's trouble and knowledge of litigation. Here agasin I must note that the Subordinate Judge has not discussed the question whether the decree in pursuance of the sale deed was obtained by fraud. There is no such allegation in the plaint, but the Subordinate Judge seems to hold in paragraph 7 of his judgment that the undue influence exercised in the suit was that of the plaintiff's vakil, who is not a party to this litigation, and not the influence of Seshayya; and he has also omitted to notice that Subbayya did not pray to have the decree set aside, although an amendment was asked for but refused by the District Munsif. There are other points to be considered also in the appeal which have not been dealt with by the Subordinate Judge, one of these being whether Seshayya's remedy was by suit or by execution proceedings. It was on this latter ground that the District Munsif dismissed his suit without giving him an opportunity of treating the suit as an execution petition. It would also be necessary to consider what effect the dismissal of Subbayya's suit will have upon Seshayya's suit, for in execution proceedings a claim by Seshayya to these properties was allowed (vide Ex. VI); and it has to be considered whether that was not a final adjudication of the rights of the parties. Appeal No. 99 of 1922 will accordingly be remanded for fresh disposal in the light of the above remarks. Costs in this Court will abide the result.
6. Court-fee in S.A. No. 204 of 1923 will be refunded.