Khudi Rai vs Lalo Rai and Others

Das, J.—I am unable to agree with the view taken by the learned Judicial Commissioner. The plaintiff instituted a suit for arrears of rent and the defence which found favour with the learned Judicial Commissioner, was that the suit was barred inasmuch as the plaintiffs instituted a previous suit in respect of the same cause of action, but withdrew it. It appears that in the previous suit the plaintiffs presented a petition for liberty to withdraw from the suit with permission to bring a fresh suit. The Court, however, gave the plaintiffs permission to withdraw from the suit, but did not in terms give them liberty to bring a fresh suit. The learned Judicial Commissioner takes the view that the order operated as a refusal of the permission. With this view I am unable to agree. There is a decision of the Calcutta High Court which is to the effect that where an application is made by a plaintiff to withdraw from a suit with liberty to bring a fresh suit on which an order is passed giving the permission to withdraw from the suit although nothing is said in the order as to the plaintiff''s liberty to institute a fresh suit on the same cause of action, that order ought to be read along with the petition and construed as granting permission to file a fresh suit; See Golam Mahamed v. Shibendra Pada Banerjee [1908] 35 Cal. 990 . This view was accepted by the Madras High Court in Keekangote Narayana Tantri Vs. Nagappa and Others, .

It appears that there were other points which were not dealt with by the learned Judge. It is true that the learned Judge says that this was the only point pressed before him, but the learned vakil for the respondent says that it was unnecessary to press other points because the learned Judicial Commissioner accepted the contention that the suit was barred.

I would allow the appeal, set aside the judgment and the decree passed by the learned Judicial Commissioner and remand the case to him to be disposed of according to law. The appellant is entitled to the costs of this appeal. Costs incurred in the Court below will be costs of the appeal which will be determined by the learned Judicial Commissioner.

Ross, J.

I agree.