1. The only point for determination in this Letters Patent Appeal by the defendants is whether the suit out of which this appeal arises is maintainable in view of the fact that the plaintiff. respondents did not pay the costs of the defendants in a previous suit instituted by them on the same cause of action on which the present suit is based as directed by the Court in its order dated 14th November 1929.' That order is in these terms:
The plaintiff be permitted to withdraw the suit with liberty to bring a fresh one unless barred as prayed for. Defendant will get costs which must be paid within one month as a condition precedent to a fresh suit.
2. Plaintiffs did not pay the costs of the defendants within the time specified in the order. Neither did they pay the costs before they instituted the present suit on 23rd January 1930. The appellant in his written statement did not object to the maintainability of the suit on the ground that his costs were not paid as directed by the Court in November 1929. Before the commencement of the hearing of the suit, the plaintiff applied to the Court for permission to deposit the costs. This prayer was not opposed and was allowed. The costs were then deposited by the plaintiffs. The suit was then heard and decreed. Defendant thereafter withdrew the costs deposited from Court. The decree of the trial Court was affirmed on appeal by the lower Appellate Court. Defendants preferred a second appeal to this Court. R. C. Mitter J. heard this second appeal. The learned Judge was inclined to hold that the suit was not maintainable and to allow the appeal, but in view of the decision of a Division Bench of this Court in Deb Kumar Roy v. Deb Nath Barna AIR 1920 Cal 897 which is on all fours with the present case, he dismissed the appeal and gave leave to the defendant to appeal under Section 15, Letters Patent. The order of 14th November 1929 allowing the plaintiffs to withdraw from the previous suit with liberty to institute a fresh suit on the same cause of action and directing them to pay the costs of the defendant within one month as a condition precedent to a fresh suit was made on the application of the plaintiffs under Order 23, Rule 1 (2), Civil P.C. The question is whether the condition about the payment of costs is attached to the permission to withdraw with liberty to institute a fresh suit or to the permission to bring a fresh suit. If the condition attaches to the permission to withdraw until the costs are paid, the permission is not operative. There is no withdrawal with liberty to institute a fresh suit and the suit must be taken to be pending. If the condition attaches to the permission to bring a fresh suit, the suit is withdrawn and ceases to be pending immediately with order of withdrawal and the permission to bring a fresh suit is not operative until the coats are paid.
3. The reasons in support of the first view are : (1) The Clause 'on such terms as it think fit' in Sub-rule (2) of Rule 1, Order 23 of the Code grammatically refers to the verb 'may grant' and the terms imposed by the Court therefore refer to the permission to withdraw from suit with liberty to institute a fresh suit. (2) What the Court orders is not a withdrawal and institution separately, but a withdrawal and institution on certain conditions, the whole is one order and the one part cannot be severed from the' other when the plaintiff obtains leave to withdraw upon payment of costs, until they are paid there is no withdrawal with the permission of the Court and the suit remains pending.
4. The reasons advanced in support of the second view are: (a) The latter part of Order 23, Rule (1), Sub-rule (2) must be read as referring not to the permission to withdraw a suit as the withdrawal of the suit does not require permission but merely as allowing the Court to give permission to institute a fresh suit in place of the one which has been withdrawn. The permission granted under the sub-rule refers only to the filing of the subsequent suit on certain conditions. (b) The order allowing the withdrawal of a suit upon terms is separable in two parts : one allowing the withdrawal and the other allowing the institution of a suit upon complying with the condition laid down by the Court.
5. Now the consequences of withdrawal of a suit are laid down in Sub-rule (3) of Rule 1 of Order 23. If that Rule had not been in existence, there would have been no provision of law by which a plaintiff after withdrawing a suit would be precluded from bringing a fresh suit in respect of the same cause of action. That Rule contemplated withdrawal without leave to bring a fresh suit on the same cause of action. If the second view is correct, then on the plaintiff's failure to deposit the costs as directed by the Court the withdrawal becomes a withdrawal without leave and the second suit is hit by this sub-rule. If the first view is correct, there is no withdrawal at all when the condition is not complied with, as failure to withdraw with leave to institute a fresh suit does not put an end to the suit and the plaintiff is entitled to continue the suit in spite of his failure. The institution of the second suit would then be not hit by the sub-rule. The result would then be that two suits would be pending on the same cause of action. In such a case, either the Court should stay the hearing of the second suit under Section 10, Civil P.C., and direct the plaintiff to proceed with the first suit or direct the stay of the second suit until the costs are paid : see Order 26, Rule 4 of the Rules of the Supreme Court.
6. The cases in which the terms of the order impose a time limit for payment of costs have sometimes been distinguishes by Courts from the cases in which no such time limit is placed. The reasons for the distinction are these : (1) When the order of the Court directs payment of costs by a certain data and that data expires, it becomes impossible for the plaintiff to fulfil the condition imposed by the Court and a subsequent deposit would not comply with the conditions. Where no date is fixed, the non-payment of costs before the institution of the suit makes the suit premature and the Court can treat the plaint as being filed on the date on which the deposit is made provided no question of limitation arises. (2) The intention of the Court in fixing the time limit is to settle the position of the parties within a reason-able time and not to keep the defendant in suspense of a future attack on him indefinitely up to the last date of limitation. (3) When the Court attaches such a time limit to the permission, it is open to the plaintiff to say then and there that he does not accept the condition and to ask the Court to proceed with the suit. But if after such an order he takes no further steps for the prosecution of the suit, he must be taken to have accepted the conditional order with the consequences following from the non- compliance with the conditions mentioned in the order.
7. If the condition about the payment of costs attaches to the withdrawal of the suit with liberty to institute a fresh suit, the distinction between the oases in which time limit is fixed and those in which there is no such time limit is not of much consequence inasmuch as in either case on default of payment of costs the suit remains pending. If the condition attaches to the filing of the second suit, after the fixed date expires, the Court can extend the time for paying the costs under Section 148, Civil P. C, and therefore enable the plaintiff to comply with the condition imposed on him. Where the Court extends the time, there is no difficulty, but where time is not extended, there being no permission to sue afresh, the second suit must be dismissed. Assuming that by fixing a time limit the Court intended to settle the position of the parties, the question still remains, how did the Court settle the position? Where the order specifies the position, there is no difficulty. Where nothing is stated, the answer to the question depends on the answer to the question whether the condition attaches to the permission to withdraw or to the permission to bring a fresh suit.
8. Again, assuming that the conditional order is accepted by the plaintiff, what is the consequence of his acceptance? The answer here also depends on the answer to the same question. Again, it has been said that the decision in each case would depend upon the particular terms of the order in that case. Where the term of the order indicates what would happen on default of payment within the time fixed, no difficulty arises. Where no such directions are given, the occasion for the conflicting views indicated above arises. The difference in the two views is fundamental. The views taken by the Courts below are in accordance with the later decisions of this Court which seem to be supported by the grammatical sense of the words of Sub-rule (2) of Rule 1 of Order 23. Whether the condition about payment of costs attaches to the permission to withdraw with liberty to institute a fresh suit or to the permission to file a fresh suit, the position in the present case is this: the Court extended the time under Section 148 for payment of costs without any objection from the defendants in order to enable the plaintiff to comply with the conditions. The plaintiff then paid the costs. Even if the conditions are taken as attaching to the permission to bring a fresh suit, the conditional permission has now become final on payment of costs by the plaintiff. The first suit therefore must now be taken as withdrawn with leave. The defendants have with-drawn the costs without any protest; the suit has been fought out on merits and the plaintiffs have succeeded on the merits. In view of these facts and circumstances we dismiss the appeal. There will be no order for costs in this appeal.