Girdhari Lal vs Krishan Datt

Teja Singh, C.J.—The question involved in this regular second appeal is very simple but in order to understand it, it is necessary to refer briefly to facts. Girdhari Lal instituted a declaratory suit against Krishan Datt in the Court of the Senior Sub-Judge, Ambala. After the suit had been going on for sometime Girdhari Lal applied to the Court under Order 23, Rule 1, C.P. Code for permission to withdraw the suit and to bring a fresh suit on the same cause of action. The Court by Its order dated 12-12-1941 accorded the permission. The order reads as follows:

Considering the facts set out in the application, it is but just and fair to permit the petitioner to withdraw from the suit He is consequently allowed to bring a fresh suit regarding the cause of action as disclosed by this suit without changing the nature of suit. Plaintiff shall of course pay coats of defendants, which must be deposited before the new suit is filed.

Knee Gtrdhari Lal had no property within the jurisdiction of the Punjab Courts and was a resident of the erstwhile Kalsla State Krishan Datt sued him for the recovery of Rs. 330/8/- on the basis of the above-mentioned order of the Senior Sub-Judge. The defendant resisted the suit only on two grounds, one, that according to the order of the Senior Sub-Judge he could be called upon to pay the costs only it he brought a fresh suit on the same cause of action on which was based the first suit and second, that the suit was barred by time. The question of limitation was found in the plaintiff''s favour by the trial Sub-Judge but he dismissed the suit on the ground that the plaintiff was not entitled to anything from the defendant by way of costs of the previous suit because he had not instituted a fresh suit so far. On appeal the District Judge set aside the judgment and the decree of the trial Sub-Judge and decreed the suit.

The appellant''s Counsel relies upon the words of Clause (2) of Rule 1 of Order 23 and urges that permission of the Court in which the previous suit was pending was required only for institution of a fresh suit in respect of the subject-matter or part of the claim of that suit and not for withdrawal of the suit. This contention appears to me to be well-founded. The words of Clause (2) are: Where a Court is satisfied:

(a) that a suit must fail by reason of some formal defect, or

(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim.

it may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim." Clause (3) reads as follows:

Where the plaintiff withdraws from a suit, or abandons part of a claim without the permission referred to in Sub-rule (2) he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

Reading clause (2) of the rule with Clause (3) it will be seen that where the plaintiff with draws from the suit or abandons a part of his claim without obtaining the permission of the Court he shall be precluded from instituting the fresh suit in respect of the subject-matter or a part of the claim of the previous suit. This means that permission is required with a view to bringing a fresh suit on the same subject matter or part of the claim. This, however, is not the matter with which we are concerned in the present case, because permission was granted by the Court and a fresh suit would be competent. All that, has to be determined is whether the order of the Court gave the present plaintiff a right, to recover the costs of the previous case even though no fresh suit was Instituted. It cannot be denied that the words of Clause (2) of Rule 1 are very wide and give the Court, before whom an application for permission to withdraw a suit with liberty to institute a fresh suit is made, power to impose any terms that it considers necessary for according the permission and such terms include costs This conclusion is further strengthened by the words of Section 35 of the CPC which deals generally with costs. The section says:

Subject to such conditions and limitations as may be prescribed and to the provisions'' of any law for the time being in force the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid.

Mr. Kishori Lal does not contend that the Senior Sub-Judge had no power to award costs of the suit to the defendant at the time he permitted the plaintiff to institute a fresh suit. What he argues is that the words of the Senior Sub-Judge''s order connote that costs had to be paid before the plaintiff instituted a fresh suit and not otherwise. On giving careful consideration to the matter I do not find it possible to agree with the Counsel. As will be seen the sentence relating to the costs is divisible into two parts. The first is ''that the plaintiff shall of course pay costs of defendants," and the second is that the costs must be deposited before the new suit is filed. I agree with the District Judge that both these parts are distinct and do not depend upon each other. The first part makes the plaintiff liable to the defendant''s costs and in my judgment this liability is not affected in any way by the institution of the fresh suit which the plaintiff may or may not bring. The second part merely lays down that it the plaintiff does not institute a fresh suit the same shall not lie before the costs are deposited in Court. Mr. Kishori Lal has cited a couple of authorities, viz., ''MA SAN MYINT v. U TUN SEIN'', AIR 1939 Rang 378 and ''JAIJIBAI PESTONJI V. BHIKHIBAI CHANDULAL'', AIR 1941 Bom 290, but neither of them deals with the question which has arisen in the present case. All that was held in those cases was that when a Court which accords permission for the institution of a fresh suit lays down that costs of the first suit shall be paid before the fresh suit is instituted the payment of the costs is a condition precedent for the institution of a fresh suit, but this does no; mean that the person in whose favour the costs are awarded is not entitled to them otherwise, that is to say, even if the fresh suit is not instituted. As I have already pointed out the powers of the Court in awarding costs are wide and there is no warrant for holding that when a Court accords permission for institution of a fresh suit it cannot award costs of the suit and it can only make the payment of such costs conditional upon the institution of the fresh suit. Such an interpretation would not only fetter the powers of the Court regarding costs but would also make it possible for a litigant to prolong the proceedings in a case for any length to the harassment and the detriment of the other party and when it finds that the suit must fail, to come forward with an application for permission to institute a fresh suit and after having obtained such permission to sit at home without bringing the suit and in this way get rid of his liability to pay the costs of the opposite party.

The result is that the appeal fails and is dismissed with costs.