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Subal Chandra Chowdhury Vs. Mosaraf Ali and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in38Ind.Cas.476
AppellantSubal Chandra Chowdhury
RespondentMosaraf Ali and ors.
Cases Referred(Sadhu Charan Tewan v. Baikuntha Nath Madak
Excerpt:
civil procedure code (act v of 1808), order xxiii, rule (1) - leave to withdraw with liberty to bring fresh twit--order to pay costs of defendant, construction of. - .....follows: 'the appeal is accordingly decreed and the plaintiff given the permission to institute a fresh suit and that he should pay the defendant-respondent the costs of this appeal and of the original suit with interest at six per cent, as a condition precedent to his instituting a fresh suit.' it is found by both the lower courts that the plaintiff had not complied with the condition precedent before he instituted the fresh suit. it is said that the plaintiff had a right to pay the money after the institution of the suit and reliance is placed upon the decision of this court in the case of shital prosad mondal v. gaya prosad dingal (sadhu charan tewari v. baikuntha nath madak) 23 ind. cas. 210 : 19 c.l.j. 529. but the permission granted in each particular case must be construed in.....
Judgment:

1. This is an appeal from a decision of the learned District Judge of Chittagong, daled the 15th December 1914, affirming the decision of the Officiating Munsif of Hathhazari. The plaintiff brought the present suit for ejectment. He brought former suit arid the leave of the Court had been obtained to withdraw that former suit. This appeal turns solely upon the construction to be placed upon the order in the previous suit giving leave to withdraw. The words of the order are as follows: 'The appeal is accordingly decreed and the plaintiff given the permission to institute a fresh suit and that he should pay the defendant-respondent the costs of this appeal and of the original suit with interest at six per cent, as a condition precedent to his instituting a fresh suit.' It is found by both the lower Courts that the plaintiff had not complied with the condition precedent before he instituted the fresh suit. It is said that the plaintiff had a right to pay the money after the institution of the suit and reliance is placed upon the decision of this Court in the case of Shital Prosad Mondal v. Gaya Prosad Dingal (Sadhu Charan Tewari v. Baikuntha Nath Madak) 23 Ind. Cas. 210 : 19 C.L.J. 529. But the permission granted in each particular case must be construed in accordance with the wording of the order giving leave to withdraw from the suit and in that case which is reported as Shital Prosad Mandal v. Gaya Prosad Dingal (Sadhu Charan Tewan v. Baikuntha Nath Madak) 23 Ind. Cas. 210 : 19 C.L.J. 529 Sir Lawrence Jenkins, C.J., pointed out that the wording of the leave to withdraw in that case was in unfortunate terms and gave the plaintiff a right to pay the money even after the institution of the suit. In this case, we have got a distinct statement that the payment of costs in the former suit was a condition precedent to entitle the plaintiff to institute a fresh suit. It. was found that the plaintiff did not comply with that condition and, therefore, he was not entitled to institute a fresh suit. The appeal, therefore, fails and must be dismissed with costs.


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