1. This appeal is on behalf of defendant 1, and it arises out of a suit commenced by the plaintiff for recovery of possession of the lands in suit on establishment of his jote right to the same. The plaintiff's case was that the disputed land appertained to Sikimi Taluk Rastum Khan which was at the material time owned by one Rangu Mia. The plaintiff took settlement of the land from Rangu Mia on 17th Kartick, 1326 B.S., and was in possession of the same till Falgun 1348 B.S., when he was dispossessed from it by defendant 6 in collusion with the other defendants. The defence was that the plaintiff had no title to or : possession of the land in suit and he never took settlement of the same Rangu Mia's interest in the taluk was sold on 25th July 1922 and was purchased by the Das's who were represented by defendants 4 to 7 in the suit. Defendant 1, it is alleged, took settlement of the land from defendant 4 and his cosharers on 25th Bhadra, 1333 B.S., and was in possession of it since then. A further point raised, was that the plaintiff instituted a previous suit claiming identical reliefs against the defendants; he was allowed to withdraw the suit with liberty to institute a fresh suit on the same cause of action, and payment of costs to the defendants was made a condition precedent to the institution of the fresh suit; these costs not being paid prior to the institution of the suit or even before the suit came on for trial, the condition upon which the leave was granted was not complied with and consequently it became inoperative and barred the present suit.
2. The trial Court decided the suit in favour of the defendant. It held that the plaintiff failed to establish his title to the disputed property and it was further of opinion that the suit was barred under Order 23, Rule 1(3), Civil P.C. On appeal the judgment was reversed and the plaintiff's suit was decreed. It is against this decision that the present second appeal has been preferred. The first question for our consideration in this appeal is as to c whether the present suit is barred by reason of the plaintiff's failure to comply with the condition upon which the previous suit was allowed to be withdrawn and leave was given to institute a fresh suit on the same cause of action. It appears from the records that the plaintiff had instituted an earlier suit namely, Title Suit No. 105 of 1938, against these defendants and the suit was based on identically the same cause of action. The suit was withdrawn with liberty to institute a fresh suit on 13th December 1938. The order made by the Court stands as follows:
That the plaintiff be permitted to withdraw from the suit with liberty to sue afresh in respect of the same cause of action, if not otherwise barred by limitation. The contesting defendants do get costs which are made condition precedent to the institution of a fresh suit.
3. The present suit was filed on 18th January 1939 and was fixed for hearing on 9th May 1939. On that day the hearing commenced and both parties adduced whatever evidence they had to adduce. The further hearing of the suit was adjourned till the day following when the arguments were to be heard. On that day, that is to say, on 10th May 1939 the plaintiff deposited the costs in Court. It is argued by the learned advocate for the appellant that the non-payment of costs prior to the institution of this suit made the suit incompetent under the provisions of Order 23, Rule 1(8), Civil P.C. On the question as to what is the legal effect of non-compliance with the order relating to payment of costs in cases of this description, there is unfortunately a divergence of judicial opinion and the decisions of our Court itself cannot be said by any means to be uniform. In Shital Prosad v. Gaya Prosad ('14) 1 A.I.R. 1914 Cal. 207 which is one of the leading decisions of our Court on the subject, it was laid down by Sir Lawrence Jenkins that if a suit was allowed to be withdrawn by a; party with liberty to bring a fresh suit on the same cause of action on condition of paying costs to the defendant, the second suit could not be dismissed for non payment of costs, and that inasmuch as the permission to withdarw the suit and bring a fresh suit was made conditional on payment of costs, the old suit must be held, to be still pending and undisposed of so long as the costs were not paid. In that case there was no time limit specified by the Court within which the costs were to be paid, nor was it ordered that the suit would stand dismissed in case of default. As there was no final order deter.mining the suit, his Lordship was of opinion that the first suit must be held to be still pending. This view was followed by the Patna High Court in Muhammad Afzal v. Laohman Singh ('26) 13 A. I. R. 1926 Pat. 409 In the Patna case, a period was specified within which the payment of costs was to be made and it was held by the learned Judges that the Court had power under Section 148, Civil P. C., to extend the prescribed time.
4. The decision of Mookerjee A. C. J. and Pletcher J. in Deb Kumar Roy v. Debnath ('20) 7 A.I.R. 1920 Cal. 897 follows the reasoning in Shital Prosad v. Gaya Prosad ('14) 1 A.I.R. 1914 Cal. 207 In Abdul Khaleque v. Susil Chandra ('35) 39 C. W. N. 330 our learned brother, Mitter J., felt constrained to follow the principle enunciated in these cases though his own opinion was different. On an appeal being taken against the judgment of Mitter J. under Clause 15, Letters Patent, his decision was affirmed but the learned Judges who heard the Letters Patent Appeal preferred to lay down the law in a somewhat different manner. What they held was that, when the plaintiff is given liberty to withdraw a suit with permission to institute a fresh suit and costs are directed to be paid to the defendant as a condition precedent to the institution of such suit, but no directions are given as to the consequences of non-compliance with the condition, the condition applies to the withdrawal of the suit and not to the bringing of the fresh one; consequently, as there was no withdrawal of the previous suit till the costs were paid, the first suit must be held to be still pending. I must say that this view taken by the learned Judges is not strictly in accordance with the principle enunciated by Sir Lawrence Jenkins in Shital Prosad v. Gaya Prosad ('14) 1 A.I.R. 1914 Cal. 207, though in a sense they purported to follow that decision. In that case the learned Chief Justice pointed out that what the Court allows in such circumstances is not the withdrawal of the old suit and institution of the fresh suit separately, but both withdrawal and institution together on certain conditions. The whole is one order and no part of it can be separated from the other : it is, therefore, not possible to say that the condition attaches to one part of the order and not to the other.
5. I may notice here three other cases decided by this Court where the view taken is somewhat at variance with that taken in Shital Prosad v. Gaya Prosad ('14) 1 A.I.R. 1914 Cal. 207. The first is the case in Harinath Dass v. Syed Hossein Ali ('05) 2 C.L.J. 480, where it was held by Sir Francis Maclean C. J. and Pratt J. that when the plaintiff did not pay the costs which was the condition upon which the withdrawal was obtained, he must be taken to have withdrawn without the permission of the Court and would be precluded from instituting a fresh suit for the same matter. There was no discussion of any principle in the judgment and no reason was assigned. The second case is that in Abdul Aziz v. Ebrahim ('04) 31 Cal. 965. Here the plaintiff was allowed to withdraw the suit with liberty to bring a fresh suit on payment of costs. There was no time specified, nor was there an order of dismissal consequent on default. The costs were not paid prior to, the institution of the suit, but they were paid before the suit came on for trial. It was held that the suit was not bad ab initio and although it was irregularly instituted, the payment of costs with the permission of the Court after the suit was instituted, would cure the defect. This decision could certainly be supported on the principle enunciated in Shital Prosad v. Gaya Prosad ('14) 1 A.I.R. 1914 Cal. 207 though that was not the ground upon which the learned Judges purported to base their judgment. The last case I desire to notice in this connation is that in Shubal Chandra v. Musaraf Ali ('18) 5 A.I.R. 1918 Cal. 749. The learned Judges who decided this case, did not follow the principle in Shital Prosad v. Gaya Prosad ('14) 1 A.I.R. 1914 Cal. 207, although that authority was referred to in the judgment. It was held that whether the earlier suit was pending or not would depend upon the order made in that particular case, and when the order was that the payment of costs was a condition precedent to the institution of the second suit, failure to pay the costs before the second suit was brought would be fatal to the plaintiff's case.
6. We now come to another class of cases decided by the other High Courts in India where the question has been approached from a different standpoint. One of the most illuminating judgments in this series of cases is that of Phillips J., in Seshayya v. Subbayya ('24) 11 A.I.R. 1924 Mad. 877. The view taken by Phillips J. is, that for mere withdrawal of a suit no permission of the Court is necessary. It is only when the plaintiff applies for leave to bring a fresh suit on the same cause of action that an order of the Court is required. The Court can attach any condition to that order and this condition must be taken to be attached to the permission for instituting a second suit and not to the withdrawal of the earlier one. If the first suit was considered as pending, in would be open to the plaintiff instead of complying with the condition to come to the Court and demand trial of the suit, however long the interval might be. This decision was followed by the Bombay High Court in Shidramappa v. Mallappa ('31) 18 A.I.R. 1931 Bom. 257 and practically the same view has been taken by the Allahabad High Court in Eachhpal Singh v. Sheo Ratan : AIR1929All692 . According to these decisions, the withdrawal of the first suit is completed as soon as the order of withdrawal is made and the second suit is bad unless the condition regarding the payment of costs is complied with. It has been held however in some of these cases that the Court has jurisdiction to extend time for payment if sufficient cause is made out :vide Peria Muthirian v. Karappanna Muthiran ('06) 29 Mad. 370
7. Speaking for myself, the principle enunciated in these cases seems to be sound though it is opposed to the view taken by Sir Lawrence Jenkins C. J. in Shital Prosad v. Gaya Prosad ('14) 1 A.I.R. 1914 Cal. 207. As I have already shown, the cases of this Court are far from being uniform on this point. The decision in Harinath Dass v. Syed Hossein Ali ('05) 2 C.L.J. 480 takes a view quite different from the one enunciated in Shital Prosad v. Gaya Prosad ('14) 1 A.I.R. 1914 Cal. 207 and the learned Judges in Shubal Chandra v. Musaraf Ali ('18) 5 A.I.R. 1918 Cal. 749 were inclined to lay stress upon the form of the order made in each individual case; it is according to them a question of construction as to whether the condition is to be attached to the institution of the second suit or the withdrawal of the earlier one. This also seems to be the view underlying the decision of the Letters Patent Appeal Bench in Abdul Kkaleque v. Susil Chandra Chaudhuri : AIR1938Cal13 As there is fundamental difference as regards the standpoint from which this question has been approached by different Judges, it is not possible to attempt at any reconciliation of the conflicting views, and the conflict is further aggravated by reason of the fact that the form of the order varies in each individual case. It may be necessary at some time or other to try to solve this tangle by reference to a larger Bench.
8. We think, however, that for the purpose of this case reference to the Full Bench is not necessary, and whatever view we may choose to adopt, the plaintiff's suit is bound to fail. The language in which the order in the present case has been expressed makes it perfectly clear that the withdrawal was allowed unconditionally. The order says that the plaintiff would be permitted to withdraw from the suit with liberty to institute a fresh suit if not otherwise barred by limitation. Then follows a provision relating to payment of costs, and it is directed that the defendants would get costs of the suit, and the payment of these costs would be a condition precedent to the institution of the fresh suit. Admittedly, the costs were not paid not only before the institution of the suit but not even before it came up for trial, and there was no order of the Court granting further extension of time or any waiver by the defendants of their rights. Leaving aside the view taken by the Madras and the Bombay High Courts, I think that none of the Calcutta decisions referred to above is of any assistance to the plaintiff. The decision in Abdul Aziz v. Ebrahim ('04) 31 Cal. 965 is not directly applicable as the money was paid here after the trial of the suit commenced and there was no order of the Court granting extension of time. The plaintiff cannot derive any comfort from the decisions in Shubal Chandra v. Musaraf Ali ('18) 5 A.I.R. 1918 Cal. 749 or Harinath Dass v. Syed Hossein Ali ('05) 2 C.L.J. 480. Even if he takes his stand entirely upon the pronouncement of Sir Lawrence Jenkins in Shital Prosad v. Gaya Prosad ('14) 1 A.I.R. 1914 Cal. 207, we do not think that it is of any real assistance to him. We may take it that so long as the costs were not paid, the earlier suit was pending. The costs were paid here on 10th May 1939, and the position in law would be that on that day the previous suit was disposed of and the new suit was instituted. The case in Gopilal v. Lala Naggu Lal ('12) 15 C.W.N 998 makes the position clear, and it was held in that case, the new suit must be taken to be instituted only on the day when the condition of the payment of costs was complied with. Now, on the face of the allegation contained in the plaint, the plaintiff's suit was time barred on 10th May 1939. The plaintiff instituted this suit for recovery of possession of the land in suit on establishment of his title as a raiyat. There is a distinct allegation in the plaint that he was dispossessed from the land in Palgoon 1343 B.S. (February 1937) by defendant 6 who is the landlord, in collusion with the other defendants. More than two years had already elapsed from the date of dispossession when the suit could be deemed to have been filed in the present case and consequently it was clearly barred under Article 3, Schedule 8, Ben. Ten. Act. In our opinion, therefore, even if the suit is otherwise competent, it is on the face of the plaint barred by limitation. The result, therefore, is that this appeal is allowed. We set aside the judgment and decree of the lower appellate Court and restore those of the Court of first instance. The appearing defendant will be entitled to his costs throughout.
9. I agree.