Skip to content

Abdul Khaleque Vs. Susil Chandra Chaudhury and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in164Ind.Cas.603
AppellantAbdul Khaleque
RespondentSusil Chandra Chaudhury and ors.
Cases ReferredMohant Biharidasji v. Parshotamdas
evidence act (i of 1872), sections 11, 13, 35, 36 - chitta produced by zemindar in prior suit and found to be genuine and corroborated by other evidence--whether comes under sections 35 or 36--admissibility under sections 11 or 13--civil procedure code (act v of 1908), order xxiii, rule 1(2)--withdrawal of suit with permission to bring fresh one on payment of cost within specified time--order not mentioning that suit will be dismissed if costs are not paid within time--fresh suit filed--costs paid after one year but before hearing--such payment, held sufficient. - be a binding authority on me and to dismiss the appeal giving the defendant appellants leave to appeal under the letters patent. the appeal is accordingly dismissed without costs but leave to appeal under the letters patent is granted.

R.C. Mitter, J.

1. This appeal is directed against the judgment and decree of the learned Additional Subordinate of Sylhet affirming the decree for possession passed by the learned Munsif, Second Court, Sylhet, in favour of the plaintiffs-respondents. The plaintiffs fall into 3 groups, the second and third groups claiming as tenants and sub-tenants, respectively of the plaintiffs of the first group.

2. The root of the title of the plaintiffs of the first group, according to them, is a purchase by their predecessors from one Rajani Kanta of the lands in suit which they say are specific lands of taluq Ram bullav Nij Hissya. They also claim title by adverse possession. The learned Additional Subordinate Judge has held that the plaintiffs have failed to prove the title set up by them, but they have acquired title by adverse possession.

3. It appears from the record that the defendants instituted a suit in the year 1927 against the plaintiffs for possession under Section 9 of the Specific Relief Act and succeeded therein. The plaintiffs thereupon instituted a suit being No. 1467 of 1928 asking for the same reliefs as in this suit, based on the same cause of action. That suit was not proceeded with but was permitted to be withdrawn. The order for withdrawal dated November 14, 1929, is Ex. H. It 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 the fresh suit. This order is quoted at p. 12 of the paper book but there is a slight mistake as to punctuation. These costs were not paid before the institution of the suit out of which the appeal arises nor within one month of the date of Ex. H. The present suit was instituted on January 23, 1930, and in the written statement which was filed shortly after an objection was taken as to its maintainability on the ground that the costs had not been paid in terms of Ex. H. An issue was framed on the said objection, but both the lower Courts have decided that issue in favour of the plaintiffs but on different grounds. It is only at the time of the hearing before the Munsif, about a year after the institution of the suit, that the plaintiff paid in Court the costs of the suit of 1928. The date of payment into Court is January 5, 1931. The Munsif pronounced his judgment eight days later. On March 10, 1931, a payment order was passed in favour of the defendants and I take it that the defendants received the amount thereafter. They filed the appeal to the learned District Judge on March 11, 1931.

4. Two points have been urged before me by the learned Advocate for the appellant. The first is that the terms of the order Ex. H not having been complied with this suit cannot be entertained and the second is that the finding relating to the possession of the plaintiffs has been based partly on inadmissible evidence, namely on a chitta prepared by the zemindar in the year 1294. I do not consider the second point to be of any substance, but the first requires serious consideration.

5. The chitta of 1294 was prepared by the predecessors of the plaintiffs of the first group and recorded the lands in suit in the possession of their tenants, that is of the predecessors of the plaintiffs of the second group and of one Keramat, the landlord of plaintiffs, of the third group. In corroboration of the chitta the plaintiffs of the first group proved collection papers for a series of years to show realisation of rent from the persons recorded as tenants in the chitta and examined witnesses to prove such realization and the possession of the said person as their tenants. I do not see why the chitta under these circumstances would not be admissible in evidence either under Sections 11 or 13 of the Evidence Act. No doubt the chitta being one not prepared by a public servant in the discharge of his duty or under the authority of the government cannot come in under Sections 35 or 36, of the Evidence Act. In Ekcowrie Singh v! Heeralal Seal 11 WRPC 2 : 12 MIA 136 : 2 BLR 4 : 2 Suther 171 : 2 Sar. 399 (PC), their Lordships of the Judicial Committee ruled that it would be dangerous to admit in evidence a chitta prepared by a private person as against a third person without further 'account, introduction or verification.' In the case before me the chitta in question was produced in a suit of 1901, has been found to be genuine and corroborated by a mass of documentary and oral evidence. The view I take is justified by the observations made by Hobhouse, J. in Sudukhina v. Raj Mohan 3 BLRAC 381. I accordingly overrule this contention of the appellant.

6. Regarding the first point, the High Courts of India have taken divergent views and the views taken by this Court on different occasions are hardly consistent with each other. I am bound by the decision of Mukherjee, A. C.J. and Fletcher, J. in the case of Deb Kumar Roy Chaudhury v. Deb Nath Barna Bipra 64 Ind. Cas. 738 64 Ind. Cas. 738 : AIR 1920 Cal. 897. which is on all fours with the case before me and on that ruling I am bound to dismiss this appeal, but my own inclination is that this suit would not be maintainable. In making my observations I have in view that limited class of cases where a time limit is placed for the payment of the costs in the conditional order made under Order XXIII, Rule 1 (2) of the Code, for those cases in which no time limit is fixed may possibly stand on a different footing. In the case of Hari Nath Dass v. Syed Hossain Ali 2 CLJ 480 : 10 CWN 8, it was held without assigning practically any reason that if the costs were not paid within the time limit prescribed in such an order of withdrawal, the withdrawal must be taken as without permission to bring a new suit on the same cause of action and new suit would be barred under O XXIII, Rule 1 (3). The cases decided by the High Courts of Allahabad, Madras and Bombay take the view that where the payment of costs is made a condition precedent whether a time limit for the payment is prescribed or not, the costs must be paid before the new suit is instituted, and the Court would have no jurisdiction to entertain the new suit in such a case. The matter being treated as one of jurisdiction, payment at a subsequent stage would not confer jurisdiction on the Court and it would follow that no question of waiver by acceptance of the costs by the defendant paid after the institution of the new suit or out of time can arise. I do not consider the institution of the new suit without fulfilling the conditions to be an irregular institution only as was the view expressed in Abdul v. Ebrahim 31 C 965 (See Shidramappa v. Malappa 55 B 206 : 133 Ind. Cas. 256 : 33 Bom. LR 278 : AIR 1931 Bom. 257 : Ind. Rut (1931) Bom. 368, Rachpal Singh v. Sheo Ratan : AIR1929All692 , Robert Fischer v. Nagappa 33 M 258 : 6 Ind. Cas. 288 : 7 MLT 225 and Seshayya v. Subhayya 47 MLJ 646 : 82 Ind. Cas. 499 : AIR 1924 Mad. 877 : 20 LW 642 : 35 MLT 62 : (1924) MWN 887. The judgment of Mukherjee, A.C.J., Fletcher J. in Deb Kumar Roy Chaudhury's case, 64 Ind. Cas. 738 64 Ind. Cas. 738 : AIR 1920 Cal. 897 proceeds upon the principle formulated by Sir Lawrence Jenkins in the case of Shital Prosad v. Gaya Prosad 19 CLJ 529 : 23 Ind. Cas. 210 : AIR 1914 Cal. 207. In the last mentioned case no time limit was fixed for the payment of costs, but the principle formulated by Sir Lawrence Jenkins would cover such a case. The learned Chief Justice holds that where there is no express order for dismissal of the suit on non-performance of the condition attached to the order made under Order XXIII, Rule 1 (2), there is no final order determining the suit. He says in effect that the order for withdrawal with leave must be taken as one order, it is not an order for withdrawal with a separate order granting leave to institute a new suit conditional on the payment of costs, either before the new suit is instituted or before the fixed date, as the case may be, (See Mullick, J. in Syed Qazi Muhammad v. Lachman Singh 5 Pat. 306 : 96 Ind. Cas. 942 : AIR 1926 Pat. 409 : 7 PLT 491. I consider that the reasons advanced by Philips, J. in Seshayy's case 47 MLJ 646 : 82 Ind. Cas. 499 : AIR 1924 Mad. 877 : 20 LW 642 : 35 MLT 62 : (1924) MWN 887, against this view is cogent. A plaintiff can withdraw from the suit at any moment he likes. He does not require the permission or an order of the Court to do so (See Jenkins, C.J., in Mohant Biharidasji v. Parshotamdas 32 B 345 : 10 Bom. L.R 293. It is only when he applies for leave to institute a new suit on the same cause of action that an order of the Court granting such leave is necessary. The Court can attach any condition, and the condition must be taken to be attached to the leave to sue that is prayed for. An order of the character I have in this suit, which does not specifically state that on default of payment of costs within the time fixed, the suit will stand dismissed, must be construed in terms of Order XXIII, Rule 1, para. 2. When an application for withdrawal with leave to sue again is made and the Court attaches a condition the plaintiff is at liberty to say then and there that he does not accept the condition. In that case the Court has to proceed with the suit dismissing the plaintiffs application for withdrawal with leave to sue again. But if after such an order the plaintiff takes no further steps for the prosecution of his suit, he must be taken to have accepted the conditional order. He cannot be heard to say afterwards that an order which he accepted but the terms of which he has not or could not comply with later on must be taken to be wiped off from the record. The intention of the Court to put a time limit for the payment of costs is to settle the position of the parties within a reasonable time and not to keep the defendant in suspense of a further attack on him, which, according to the view taken in the later cases of this Court which I have noticed above, may be launched many years later, may be till the last date of limitation for the suit. In this view of the matter my opinion is that the view taken by the Allahabad, Bombay and Madras High Court are sound. At one time I thought of sending the case to the Division Bench so that the matter may, if that Court thought fit, be referred to a Full Bench, but as a great deal of time had already been taken up before me, I have thought it best to consider Deb Kumar Roy Chaudhury's case 64 Ind. Cas. 73864 Ind. Cas. 738 : AIR 1920 Cal. 897, to be a binding authority on me and to dismiss the appeal giving the defendant appellants leave to appeal under the Letters Patent. The appeal is accordingly dismissed without costs but leave to appeal under the Letters Patent is granted.

Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //