JUDGMENT Boys, J.
1. This is a plaintiff's appeal arising out of a suit instituted in 1926 for possession of certain immovable property. The plaintiff had previously in 1924 brought a suit of exactly the same nature and against the same defendants, but in 1925 he had obtained permission under Order 23, Rule 1(2) to withdraw the suit with liberty to file a fresh suit, subject to the condition that he must pay the costs of the defendants in the first suit before filing any second suit. The record containing the actual proceedings and actual order embodying this permission is not before me, but it is not disputed that the order of the lower appellate Court sufficiently accurately quotes it where it says:
It was ordered that before filing a fresh suit the plaintiff should pay the costs of both the Courts.
2. The present suit was filed on the 14th May 1926, without the costs of the previous litigation having been paid. On 28th August 1926, the defendant Sheoratan Singh in his written statement and in a later written statement another defendant challenged the right of the plaintiffs to bring the second suit without having deposited the costs in both the Courts in the previous suit. On 27th November 1926, the date fixed for the final hearing, the plaintiff tendered the costs, but the defendants refused to accept them. Both Courts have dismissed the suit on the ground that the condition on which the plaintiff had succeeded in obtaining permission to file a second suit had not been fulfilled. The plaintiff appeals.
3. Mr. Shambhu Nath Seth, to whom I am indebted for his careful collection of the authorities, has drawn my attention to a number of decisions of other Courts in which the effect of the failure of the plaintiff to pay the costs in cases of this type has been considered. There appears to be no decision of this Court.
4. I will first make some general observations:
5. Firstly, Order 23, Rule 1(2), reads: Where the Court is satisfied on certain points:
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 **
6. It is of course manifest, as pointed out in G. Seshayya v. N. Subbayya A.I.R. 1924 Mad. 877 that the permission given does not really apply to the withdrawal at all but to the right to file a second suit. A plaintiff can always withdraw without permission (and this is expressly stated in Sub-rule (1), Rule 1, Order 23) if he is prepared to submit to the consequences set out in Sub-rule (3).
7. When he is not prepared to submit to those consequences, he can, before he withdraws, intimate to the Court his desire to withdraw provided that he is given permission to file a fresh suit. The Court will then intimate whether it is willing at all to give permission to file a fresh suit and if so on what, if any, terms. If the plaintiff accepts those terms, the order passed will be:
The suit is withdrawn and permission is given to file a fresh suit on such and such terms being fulfilled.
8. The suit, therefore, ceases to be a pending suit and has been finally disposed of.
9. Secondly, I am unable to see any reason why if permission to file a second suit has been granted subject to a condition the plaintiff should not be held strictly to that condition, and his second suit dismissed if he attempts to file it without having fulfilled the condition on which he secured permission.
10. If, for instance, he has been ordered to pay the costs of the first suit before filing a second suit, and yet he is to be allowed, on the principle, I imagine, that he is only removing a bar, to pay the costs after he has filed the second suit, on what principle is it to be capable of determination at what stage of the second suit he can or cannot be allowed to pay the costs. Is he to be allowed to wait till he can forecast the probable result of the second suit, and pay or not as he thinks best.
11. Thirdly, it will be found that in the cases which have come before the Courts the exact nature of the orders has varied. The permission has been granted apparently subject to a condition sometimes (a) that "the plaintiff shall pay the costs", sometimes (b) that "the plaintiff shall pay the costs before a named date (specified in the order)," sometimes (c) that "the plaintiff shall pay the costs before filing a second suit."
12. The full wording of the order has not always been set out in the reports and it is probable that in the first class of cases there was a period named within which the costs were to be paid, the period being specified as in the second or third class of cases. It is clearly desirable that the order should specify a fixed date and an early date, if only because the defendant has been harassed unnecessarily and he may well be assisted to a speedy recovery of his costs. But whether the terms fix a named date or require costs to be paid before the filing of a fresh suit is immaterial. In either case failure to pay before the date fixed or, as the case may be, before the filing of the suit will equally amount to failure to comply with the condition on which alone permission was given.
13. Fourthly, it has been suggested: see Kuldip Singh v. Kuldip Choudhry [1918] 3 Pat. L.J. 63, that the order should conclude by saying that:
on failure to pay costs within that time the original suit shall stand dismissed with costs.
14. An order in this form was actually passed by the first Court in Gopi v. Naggu Lal [1911] 14 C.L.J. 105. If the view that I have expressed above is correct, the case has already been finally withdrawn and there is nothing left to dismiss and such an order is meaningless and improper.
15. I will now refer to the authorities.
16. The first is Abdul Aziz v. Ibrahim [1904] 31 Cal. 965, The report does not quote the exact words of the order giving the permission, but I think it may clearly be inferred that the condition was that the costs should be paid before filing the second suit. The costs were not so paid but were paid before the case came to trial. The case was decided under Section 373 of the old Code of 1882 which for all practical purposes appears to correspond to the present Order 23, Rule 1; para. 1, Section 373, broadly corresponding to Sub-rule (2), while para. 2 corresponds to Sub-rule (3), and para. 3 corresponds to Sub-rule (4). Sub-rule (1), permitting a plaintiff to withdraw suit or abandon a part of his claim, has been added. Their Lordships drew attention to the fact that para. 2 of Section 373, corresponding to Order 23, Rule 1(3), did not apply to the case before them as permission had been given. They then repelled the contention of the defendants that there was an express order that the plaintiff should pay the defendants' costs before filing the suit by qualifying that order in the light of Order 26, Rule 4 of the rules of the Supreme Court 1883. That order reads:
If any subsequent action shall be brought before payment of the costs of the discontinued action for the same, or substantially the same cause of action, the Court or a Judge may, if it or he thinks fit, order stay of such subsequent action, until such costs have been paid.
17. It will be noted that Order 26, Rule 4 makes no reference to any condition having been imposed by the Court which permitted the first suit to be withdrawn. I am not, therefore, able myself to hold that order is applicable, even as a guide to practice, in this country where provision is made for the first Court imposing conditions and a definite condition has been imposed, a condition which, as I have said, I can see no reason for not strictly enforcing. How far their Lordships may have been influenced by the fact that defendant's pleader had actually accepted the costs in the course of the second suit it is not possible to say.
18. In Robert Fischer v. Nagappa [1910] 23 Mad. 258, there was a withdrawal with permission to file a second suit, if costs of the first suit were paid before a certain date. The costs were not paid before that date. Both the lower Courts dismissed the suit as unsustainable. Their Lordships distinguished Abdul Aziz v. Ibrahim [1904] 31 Cal. 965, on the ground that in that case there was no time specified and that the condition of payment of costs had been performed before the case "came for trial." The appeal was dismissed. I am unable to appreciate the reasons for distinguishing Abdul Aziz v. Ibrahim [1904] 31 Cal. 965. It is true that in the earlier case no calendar date was mentioned, but the date, that of the filing of the suit, was a date which was capable of definite ascertainment; and as to the distinction that the condition in the earlier case was performed before the case came on for trial, it does not seem to me to touch the real point in the case, namely, whether the plaintiff was to be penalised for his failure to comply with the condition before the date on which he ought to have complied with it.
19. But the decision appears to have proceeded on the simple ground that the first case was withdrawn and finished with and that as to the second suit there was a condition accepted and failure to fulfil it and that there was no room for argument. I agree.
20. In Gopi v. Lala Nagan [1918] 3 Pat. L.J. 63, the order was that the plaintiff be permitted to withdraw from the suit with leave to bring a fresh suit subject to limitation and paying the costs before filing a fresh suit "or else this suit shall stand dismissed with costs. "
21. The suit was withdrawn and a fresh suit was instituted on 28th July, without payment of the costs having been made. Payment was made in the course of the trial. Their Lordships held that the plaint might be treated as having been filed on 23rd August, as it was immaterial so far as limitation was concerned whether the suit was taken as instituted on 22nd August or 28th July. They further followed the decision in Abdul Aziz v. Ibrahim [1904] 31 Cal. 965. It does not appear whether any proceedings had taken place between the filing of the plaint and the deposit of the costs. If any such proceedings of any sort had taken place it is difficult to see how the suit could be treated as having been instituted on the later date for there would be no basis in any existing suit for the intervening proceedings, or on what principle the plaint could be treated as having been instituted on the later date if there had been no intervening proceedings and not so treated if there had been such proceedings; or what would be the position if in a common plaint one plaintiff was fettered and the other not by the condition.
22. In Shital Prasad v. Gaya [1914] 19 C.L.J. 529 (the same case is reported as Sadhu Charan v. Baikuntha Nath in 23 I.C.), the order was that the suit be allowed to be withdrawn with liberty to bring a fresh suit on condition of paying costs.
23. No costs were paid before the fresh suit was filed. Their Lordships said:
The condition of such permission in this case was the payment of costs. Until the costs were paid the permission was not operative and so there was no withdrawal with liberty to bring a fresh suit. The result was that until there was such withdrawal the former suit was still pending..." Where a plaintiff has obtained leave to withdraw upon payment of costs it is his duty to pay the costs at once for until they are paid there is no withdrawal with the permission of the Court.
24. It was held that the Munsif was wrong in dismissing the second suit when the costs were tendered, and that all that he could have done would be to hold that as the other suit was still pending, Section 10 was a bar to the present suit. The decision proceeds on the assumption that the first case had not been finally withdrawn. I am unable to accept this.
25. Kuldip Singh v. Kuldip Choudhry [1918] 3 Pat. L.J. 63, was a case in which the condition was payment of costs before filing a fresh suit. Costs were not so paid. Their Lordships agreed generally with the view expressed in Abdul Aziz v. Ibrahim [1904] 31 Cal. 965, and also agreed very specifically with the view expressed in Shital Prosad v. Gaya Prosad [1914] 19 C.L.J. 529, that the first case must be regarded as pending until the costs were paid and that the second suit must be stayed under Section 10. I would note that the two cases were apparently decided differently; in the former it was held that the second case could go on if the costs were paid. Their Lordships continued:
The difficulty which has arisen in the present case is due to the incompleteness of the order passed in the first suit. The order in such circumstances should limit the time within which costs should be paid and should go on to direct that on failure to pay costs within that time the original suit shall stand dismissed with costs.
26. I have agreed in the view that I have already expressed that a time for payment should be fixed for payment, but I have already stated my reason for holding that such an order as that suggested in the second part of this last quotation would be meaningless and improper.
27. In G. Seshayya v. N. Subbayya A.I.R. 1924 Mad. 877, the first suit was withdrawn with leave to bring a fresh suit "on condition of paying the costs" (p. 500 of 82 I.C. Col. 1) and this was interpreted as a condition not specifying any date for payment (p. 500 of 82 I.C. Col. 2). Costs were actually paid "after the close of the trial" in the second suit (p. 500 of 82 I.C. Col. 1). Their Lordships relying on Sub-rule (1), Order 23, Rule 1, held that Inasmuch as the withdrawal of the suit does not require the permission of the Court, it must be taken that the first suit is withdrawn when the order is passed and that the permission granted refers only to the filing of the subsequent suit on certain conditions.
28. Their Lordships gave as a further reason for the view:
If the first suit is still pending as held in the above cases, it would be open to the plaintiff to obtain permission under Order 23 and instead of complying with the conditions of that permission, to go to the Court and demand that the trial of his first suit should be proceeded with and this could be done however long the interval might be.
29. The force, however, of this second reason would be gone if the Court fixed, as it obviously should do, a reasonably short time for fulfillment of the condition. The first reasoning remains and I agree with it.
30. In view of what I have said above I am of opinion that once the plaintiff has accepted the terms imposed by the Court the case is declared to be withdrawn and is no longer pending and the plaintiff must comply with those terms strictly or take the consequences by being barred from filing a second suit. The order should declare that the case has been and stands withdrawn and, as the Court sees fit, that permission is given to the plaintiff to file a fresh suit, either unconditionally or on such terms as the Court sees fit, and, if terms are imposed for the payment of costs, a date should be fixed for such payment and it is desirable in the interests of the defendant already once harassed, though not necessary, that an early date for the payment should be fixed.
31. Applying this to the present case I hold that the suit was rightly dismissed and the appeal is dismissed with costs.
32. In view of the fact that this is the first decision of this Court so far as the reports indicate, I am prepared to give my consent to a Letters Patent appeal being filed against my decision.