Law: Civil Procedure Code (V of 1908)

Section: 115,O.XXIII,R.1(2)

Civil Procedure Code (V of 1908), O. XXIII, R. 1 (2)­--Withdrawal allowed with permission to institute a fresh suit, on payment of costs to defendant-Costs not paid before but after instituting fresh suit-Suit should be taken to have been instituted on date of payment of costs. A fresh suit shall be deemed to have been instituted on the day tine conditional costs for the withdrawal of the suit are paid. Gollapudi Seshayya v. Nadendla Subbayya A I R 1924 Mad. 877; Amir Hushen v. Abdul Bari A 1 R 1943 Cal. 560 and Jade Tell v. Mahboob Raza Khan A I R 1933 All. 810 ref. JUDGMENT M. A. SOOFI, J.---The facts giving rise to this Civil Revision are as follows. A declaratory suit was instituted by Ghulam Sarwar Khan plaintiff against Ghulam Akbar Khan for the declaration that the plaintiff was the owner of the land described in Schedule alif annexed to the plaint and that exchange by the defendant with the land in suit and the consequent mutations were void. The suit was instituted on the 26th May 1952. The plaint was amended on the 27th August 1952. On the 28th October 1952, the suit was withdrawn with the permission of the Court to institute a fresh suit conditional on payment of Rs. 10 as costs. A fresh suit was instituted. Costs were not paid either before or after the institution of the suit. On the 6th January 1953, written statement was put in by the defendants in which one of the preliminary objections taken was that the costs had not been paid, and the costs being conditional, the suit was barred. On the 19th January 1953, the plaintiff in his replication to the written statement offered to put in costs. On the 27th January 1953, the costs were deposited. . A preliminary issue was framed whether this suit was maintainable because of the non-payment of the costs prior to the institution of the suit. The learned Civil Judge by his order dated 13th March 1953, allowed the defendant Rs. 30 as costs on account of the plaintiff's failure to pay the stipulated costs on the with­drawal of the suit prior to the institution of a fresh suit. Those costs paving already been put in and further costs having been awarded, the plaintiff's suit was maintainable. It has been…

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