Dharmvir vs Radha Kishan

V.K. Jhanji, J.—This is defendant''s appeal directed against the order of the first Appellate Court by which appeal filed by the plaintiff was allowed and the suit was remanded to the trail Court for decision on merits.

One Tej Ram sold agricultural and measuring 74 K 12M to Dharmvir (appellant herein and the Sale Deed dated 20.1.1979 was executed in favour of the appellant, Radha Kishan (respondent herein) claims himself to be the adopted son of Tej Ram. He filled suit for declaration though his natural father Radhey Seam challenging the sale of land in dispute on the ground that the same was joint Hindu family property. The sale was also stated to be without consideration and without any legal necessity. When the suit No. 106 was pending, an application was filed on behalf of the plaintiff that since there was some format defect in the suit, the same be dismissed as withdrawn with liberty to file afresh one on the same cause of action under sub-rule (3) of Order 23 Rule I of the Civil Procedure Code. On his application, the following order was passed by the trial Court:-

Since there is a formal defect, so the present suit is allowed to be withdrawn with permission to file a fresh suit on the same cause of action. However, the Plaintiff is burdened with Rs. 100/- as costs. The costs shall be a condition precedent for bringing another suit on the cause of action.

Thereafter, on 22.11.1982, the plaintiff filed a frosh suit though his mother, namely Nihaldey. In the plaint, no mention was made with regard to order dated 17.7.1980. Plaintiff also failed to make my avernment with regard to deposit of payment of costs which was made a condition precedent from bringing another suit on the same cause of action. In the written statement, a preliminary objection was taken up by the defendant to the effect that the suit was not maintainable on the ground of non-payment of costs by the plaintiff Plaintiff, in his replication, just denied the averment. He did not choose to disclose the order dated 17.7.1990. At the same time, he did not even offer to make the payment of costs at that stage. Trial Court framed many issues and one them, i.e. Issue No, 9 was as to whether the suit is not maintainable because of non-payment to costs which were imposed upon him in the earlier suit? Trial court treated Issue No. 9 as a preliminary issue. On this issue, the trial Court found that the payment of costs was a condition precedent and since costs were not paid before filing the second suit, the same is not, maintainable and dismissed it. On appead learned District Judge, Bhiwani, relying on the case of Konkan Trading Company Vs. Suresh Govind Kamat Tarkar and Others, , set aside the order of the trial Court and remanded the case back to trial Court with a direction that the trial Court shall fix time for the payment of costs and if the plaintiff fails to pay the costs within such extended time, the trial Court shall proceed with the suit in accordance with law. The order is being challenged here in this appeal.

After hearing the Learned Counsel for the appellant. I am of the view that the order of the District Judge. Bhiwani, cannot be sustained.

Plaintiff, in this case, was allowed to withdraw the suit with liberty to file a fresh suit on payment of costs of Rs. 1000/-. In the order dated 17.7.1991, the trial Court specifically stated costs shall be a condition precedent for brining another suit on same cause of action." "In view of the order dated 17.7.1980, plaintiff was entitled to file a fresh suit of the same cause of action on payment of Rs. 100/- as costs. Plaintiff, without depositing or payment the costs'' filed fresh suit. In the plaint, he did not even disclose the order dated 17.7.1990. On a preliminary objection taking by the appellant, he did not choose to deposit the costs. The case of M/s. Konkan Trading Company (Supra) is clearly distinguish� able on the facts of the present case. In that case, firstly the order vide which plaintiff therein was allowed to withdraw the suit with permission to file fresh suit, did not clearly indicate that the payment of costs was a condition precedent. Secondly, even if it was to be construed as a condition precedent, the defect could be cured by depositing in Court or paying to the defendant the costs within reasonable time fixed by the Court before second suit was filed. Non-compliance of the side direction, it was open to the Court to reject the plain. In the case before the Supreme Court, plaintiff filed application for depositing of the amount before the second suit was filed and deposited the amount within a reasonable time. However, this is not the case here. Plaintiff not only concealed the order dated 17.7.1980 but also failed to make any application or prayer to the Court before the seconded suit was filed, for depositing the amount. If such a prayer has been made, the Court would have probably granted time to the plaintiff. Since no such prayer was ever made, there was no occasion for the Court to call upon the plaintiff to deposit the amount before entertaining the second suit.

Consequently, the impugted order of the District Judge, Bhiwani is set aside and that of the trial Court is restored with no order as to costs. This appeal stands allowed.