Kuppuswami Ayyar, J.
1. The defendant is the appellant. The appeal arises out of a suit filed by the wife for recovery of separate maintenance due to her from her husband. Her case was that there was neglect and ill-treatment. The first Court found that the plaintiff had not made out a case for separate maintenance and dismissed the suit. When the matter came up before the appellate Court, it was proposed by both the parties that they would try to settle between themselves and that some time might be given to see if it would be possible for them to live together happily. Some time was given and after that, they reported that they could not live together with the result that the learned District Judge gave a decree for maintenance at Rs. 15 a month. He has not considered the question whether the plaintiffs entitled to a separate maintenance. The case in the first Court has been disposed of on the ground that the plaintiff has not made out a case for separate maintenance and it is on that ground that the suit was dismissed. Without considering the evidence on that point and without coming to a conclusion whether the plaintiff was entitled to separate maintenance, the learned District Judge proceeded to ascertain what the assets of the family were and on that basis he gave a decree for maintenance. He was certainly not entitled to do so. He must first decide whether the plaintiff has made out a case for separate maintenance and then ascertain what the income will be and on the basis of that income, arrive at a figure as regards the rate of that maintenance, taking into consideration the other liabilities and burden on the husband in respect of the other members of the family.
2. It is now urged before me for the appellant that since the parties have gone and lived together for some time, the suit cannot be decreed as a fresh cause of action had not arisen. I do not think I can accept it. It is only an attempt for settlement without prejudice. With the permission of the Court both the parties went and lived for some time to see if the dispute between them could be settled, on the distinct understanding that the parties would be able to proceed with the appeal in case they were not able to have a success with the experiment which they wanted to try. It will be improper to a party to take advantage of this friendly offer and say that the suit has come to an end and that the cause of action, if any, has disappeared by reason of their living together subsequently. Further, my attention was drawn to a ruling in Venkataramaraju v. Rajagopalaraju : AIR1944Mad173 where it was held that the previous cause of action was wiped out as the husband and wife had resumed cohabitation. But we have no such evidence on that point. In these circumstances I do not think it will be open to the lower Court to come to any conclusion against the plaintiff on the ground that there was an attempt for settlement and the parties with the permission of the Court lived for some time and both of them have reported that it was not possible for them to live together. 1 n these circumstances the decree of the lower appellate Court is set aside and the appeal is remanded to the lower appellate Court to be disposed of on all the points raised in the appeal in the light of the observations made above.
3. The costs of this second appeal shall abide and follow the final result of the appeal in the lower appellate Court. The court-fee paid on the memorandum of the second appeal shall he refunded.