1. The question raised in this Revision Petition is whether plaintiff (appellant) can be permitted by the appellate Court to withdraw from his appeal with liberty to bring a fresh suit, his suit having been dismissed in the lower Court and his appeal having been against that dismissal. The District Judge of Kistna states in his judgment that on the hearing of the appeal, the appellant wished to file a number of fresh documents, that he declined to give him permission and that, then, the appellant made the application referred to, which application was granted by the court on payment of costs. It is contended before us that the lower appellate Court had no power to allow him to do so.
2. The question turns on the construction of O. XXIII, Rule 1 and the respondent who was appellant in the lower Court relies, on Section 107 C.P. C, as vesting this power in the appellate Court. Admittedly, this power has frequently been exercised and we are referred to two cases, one Tirupati v. Muttu I.L.R. (1888) M. 322 and the other Chidambara Mudali and Ors. v. Kozhandavelu Mudali and Ors. (1912) M.W.N. 1003 where the High Court permitted it to be done in Second Appeal. The point, however, was not argued in those cases and we have therefore, to see whether on the true construction of the Civil Procedure Code, the power exists. The language of the Order is as follows:
Order XXIII, Rule 1, Clause (1):--'At any time after the institution of a suit the plaintiff may withdraw his suit or abandon part of his claim.
Clause (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, it may grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit.
(3) Where the plaintiff does so without the permission above referred to, he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit.
3. Considering Clauses (1) and (3) first, it must be apparent that they cannot refer to a suit that has already terminated in a decree, because Clause (3) covers the whole of the ground covered by Clause (1). That is to say, Clause (3) applies to every case where a plaintiff withdraws his suit or abandons part of his claim.
4. It is to be noted in passing, that the language of Clause (3) varies slightly from that of Clause (1), the words in Clause (3) being 'withdraws from a suit,' while in Clause (1) it is ' withdraws his suit', and that the word 'from' also occurs in Clause (2). Some argument might be based on this change of language in Clause (2) were it not apparent that Clause (3) which is couched in the same language, has reference entirely to Clause (1). The variation must, we think, be purely accidental. The language of Section 373 of the Old Code was 'withdraw from' all through. As, therefore, Clause (3) applies entirely to Clause (1), it necessarily follows that in all suits withdrawn without permission the Court has power to award costs after the withdrawal. This power clearly cannot exist in a case where the suit has terminated in a decree against the plaintiff, because costs have already been provided for in the decree and cannot be awarded after the withdrawal. Further, it has never been suggested that a party whose suit has been dismissed with costs has power apart from Clause (2) to have the decree set aside. The suit has terminated and the claim has merged in a decree. If a party does not wish to execute his decree he need not do so, and if he desires to abandon part of the amount which has been decreed to him, it is open to him to certify satisfaction of that part. It must follow therefore that clauses 1 and 3 do not include suits which have terminated in a decree.
5. We now come to Clause (2). It is obvious that Clause (2) does not give the permission to withdraw and abandon, that permission being unnecessary under Clause (1). What it does is to authorise the Court in certain circumstances where a party wishes to withdraw, to give him liberty to institute a fresh suit. It seems to follow from this that the liberty to institute a fresh suit can only be given in circumstances in which the applicant is entitled under Clause (1) to withdraw. Further, paragraph (a) of Clause (2) of the rule is, in terms, only applicable to a pending suit and if paragraph (b) is to be read as limited to a case where a suit must fail, then that language would negative the construction asked for. But it is certainly open to argument that the words 'there are sufficient grounds' are alternative to the words 'a suit must fail', and not to the words ' by reason of some formal defect', and it is on reliance on this reading that some argument can be based. Whatever meaning, however, is to be given to that language, it cannot we think, alter the basis of the clause and extend the right of withdrawal or rather be read to give the Court power to 'permit' withdrawal. The language of this sub-clause being the same as that in Clause (1) the same meaning should, primarily be applied to it. As to one part of the sentence, the position is quite clear. The words 'abandon such part of a claim' are not applicable to a suit which has terminated and therefore, the clause cannot possibly apply where the plaintiff, against whom a decree has been given, wishes to bring a fresh suit abandoning part of the claim and we should therefore, be driven to this position if we were to accept the respondents' contention, that no leave can be given in a terminated suit where part of the original claim is sought to be abandoned but that leave can be given after decree, where the fresh suit is to be otherwise than for a part of a claim. There is however, a fatal answer to this in the last words of the clause, because the fresh suit to be permitted is specifically stated to be a fresh suit in respect of such part of the claim as well as 'the subject-matter of such suit.' The reading therefore would require the excision of the words 'such part of the claim'' from the sentence permitting the institution of a fresh suit. That not being permissible, it necessarily follows that the fresh suit must be in circumstances applying both to the ' subject-matter of the suit ' and ' the part of a claim ' : and as it cannot apply in respect to a ' part of a claim' after a decree has already been pronounced, it seems to follow necessarily that it cannot apply in respect of the ' subject-matter of a suit ' after a decree has already been passed. Applying the same chain of reasoning to paragraph (b) of Clause (2) we get this position, first that the words ' part of a claim ' cannot apply after a decree; next that the ' fresh suit ' must have the same meaning for both parts of the sentence; and finally, that the ' fresh suit 'cannot be one to be brought after decree with the result, that, whether the words ' other sufficient grounds' are alternative to ' a suit must fail ' or ' some formal defect', they are alike subject to the limitation that no decree has been passed in the suit sought to be withdrawn. It may well be that during a pending suit leave may be given to withdraw on grounds other than that ' the suit must fail.' It may be that proper relief cannot in some cases be given by way of amendment, such as would give the plaintiff all that the circum-stances entitle him to claim and that therefore he may be given permission to bring a fresh suit on withdrawal of the pending suit. But it is not necessary to decide that question here. All we have consider is, whether the language of this Clause (2) is to be confined to a pending suit, as Clauses (1) and (3) must necessarily be, or can be read as extending to a suit in which a decree has already been passed; and for the reasons given we are of 'opinion that it cannot be so extended.
6. The further argument remains however that the appellate Court can do what the first Court cannot do. One argument is that reconsidering the powers of the appellate Court the word ' appeal ' is to be substituted for the word ' suit 'and so the appellate Court got the power. The answer to this contention is this that if the word ' appeal ' is to be substituted for the word 'suit' it must be substituted all through the Order. The Order as made applicable to the appellate; Court would then run as follows.--' At any time after the filing of an appeal the plaintiff may withdraw his appeal or abandon part of his claim, etc.
7. There are obvious objections to this reading of the Order. In the first place the words 'abandon part of a claim' are no more applicable to an appeal than they are to a suit that has terminated in a decree; and secondly, there are ample powers to be found in the code for dealing with the merits of an appeal without the necessity for giving leave to file a fresh appeal. This, however, is not the construction sought for by the respondent, for it will not assist him. What he wishes to do is in effect, to alter the word ' suit ' into ' appeal' in the first line, Rule 1, Clause (1) and read it ' at any time after the filing of an appeal ' and then leave the rest of the rule as it stands. This of course, cannot be a proper application of the Order to an appellate Court. The other method by which he would arrive at the powers he seeks to establish is by taking the whole rule en bloc and saying that the appellate Court could do it by reason of the words 'at any time after the institution of a suit, ' his argument being that, although the first court having passed a decree cannot alter it, the appellate Court can do so, as the whole case is re-opened by the appeal.
8. It was this contention that made it necessary to examine the language of the rule minutely, and if the order is to be read as suggested above, that is to say, as limited to suits which have not terminated in a decree, it is obviously impossible to read the order otherwise when the suit is before the appellate Court. The language of the order cannot be construed, as to its subject matter, differently according to the Court which is construing it. The Code can apply the procedure of an Original Court to the appellate Court with the necessary variation in the terms. This is done specifically in Order XXII, Rule 11; and Section 107 generally provides for the exercise, by the appellate Court, of the same powers and the same duties as are conferred and imposed on Courts of original jurisdiction. Section 107 will, however, not avail the respondent in the manner he seeks to apply it, for, as shown above, the Court of original jurisdiction has no power to permit the institution of a fresh suit after decree. The Respondent is, therefore in this difficulty, that if he wishes to apply Order XXII, Rule I, to the Court of appeal by virtue of Section 107 it can only be done by substituting the word ' Appeal' for ' Suit ' all through the rule which will not give him the remedy that he requires. No other construction is possible because, with regard to the suit itself the Original Court has no such power.
9. The view that we have taken is in accordance with the decision in Eknath v. Ranoji I.L.R. (1911) B. 261 where the Court lays down that the language of Order XXIII, implies that a suit has not yet been disposed of. For the reasons given above, we are of the same opinion. The petition will be allowed with costs; The order of the lower appellate Court will be set aside and the lower appellate Court will take the appeal on its file and dispose it according to law.