1. On the second day of the hearing of this case learned Counsel on behalf of the plaintiff said that on further consideration it appeared that want of jurisdiction in this Court was a fatal objection and he therefore asked under Order 23, Civil P.C., for leave to withdraw the suit with liberty to institute a fresh suit. Learned Counsel of course was prepared on behalf of his client to submit to an order that his client should pay the costs, and an order in those terms was made.
2. Mr. Khaitan on behalf of the defendant asked that it should be a term of the order that payment of the costs of this suit should be a condition precedent to the filing of a fresh suit on the same cause of action. In support of his contention he referred me to Shital Prosad v. Gaya Prosad  19 C.L.J. 529, but I was not convinced that there were grounds for making an order in the terms desired and I refused so to do.
3. My attention was not then drawn to Rule 26, Chap. 16, of the rules of this Court which provides that in circumstances such as these the order shall be drawn up so as to make the payment of the costs of the suit a condition precedent to the plaintiff bringing a fresh suit unless the Court or Judge otherwise directs. It appears that in drawing up the order this rule has not been overlooked, and it has been pointed out that in the absence of any direction to the contrary, a provision to that effect must be inserted in the final order. The matter has therefore now been set down to be mentioned for the point to be further considered.
4. It has been argued on behalf of the plaintiff that it was not intended that this rule should apply to cases of the withdrawal of a suit in this Court with liberty to institute a fresh suit, where that has to be done in the mufassil. Without going so far as to say that it was not intended that the rule should ever apply to such circumstances, I apprehend that it is probable that what was primarily in contemplation was the withdrawal of a suit: in this Court and the filing of a fresh suit also in this Court. If this Court were not a chartered High Court, but a Court to which the Civil Procedure Code applied in full, what would have happened would have been that upon it appearing that this Court had no jurisdiction an order would have been made under Order 7, Rule 10 directing that the plaint be returned to the plaintiff to be presented to the Court in which the suit should have been instituted. In those circumstances, no question under Order 23 or the making of an order such as Sir Lawrence Jenkins referred to in the case cited would have arisen. But inasmuch as Order 7, Rule 10 does not apply to a chartered High Court, when it appears that this Court has no jurisdiction and it is desired to file a suit in the Court which has jurisdiction, the plaintiff can only proceed under Order 23, whereby the difficulty is got over indirectly.
5. In those circumstances, it is argued that Rule 26, Chap. 16 of the Rules of this Court, is attracted. I agree that prima facie that is so, but having regard to the circumstances to which I have referred, it appears to me that whore this Court has not jurisdiction and the case is withdrawn on that ground, unless there are some other special reasons for applying the rule, the payment of costs should not be made a condition precedent to the filing of a fresh suit.
6. It is not necessary to determine what would be the effect of such an order, but I can see that it might give rise to difficulties, though I do not say they would be insuperable, if this Court were to make an order simply in the terms of Rule 26, Chap. 16, and a plaintiff without complying with that order were to institute proceedings in a mufassil Court, in this instance it has been pointed out, in a mufassil Court, which is not subordinate to this Court. This is not an aspect of the matter which I need pursue, nor do I base my order upon it.
7. For the reasons stated I direct that the order should be drawn up without making the payment of costs a condition precedent to the plaintiff instituting a fresh suit. The defendant must pay the costs of this application.