Judgment

HEGDE, J.:- One Prem Sukh was the owner of the suit properties. Parvatibai was his wife. They had no children, Prem Sukh gifted some of his properties to his wife on June 14, 1943. Dr. Madan Lal s (1st respondent in this appeal) case is that Prem Sukh adopted him on July 12, 1943. Thereafter it is said that Prem Sukh adopted on April 10, 1946, the appellant Vallabh Das. On April 29, 1946, Dr. Madan Lal instituted a suit for a declaration that he is the adopted son of Prem Sukh and partition and possession of his share in the family properties. Prem Sukh denied the adoption pleased by Dr. Madan Lal. On the other hand he alleged that Vallabh Das was his adopted son. In view of that allegation, Vallabh Das was added as a supplemental defendant in that suit. No relief was claimed against him. During the pendency of that suit Prem Sukh died. Thereafter Dr. Madan Lal moved the Court to withdraw the suit. He was permitted to withdraw the same with liberty to file a fresh suit on the same cause of action on condition that he pays the defendants costs of that suit before instituting a fresh suit. Thereafter Parvatibai bequeathed her properties to Dr. Madan Lal and died soon after. The suit from which this appeal arises was brought on November 29, 1951 even before the costs of Vallabh Das (the appellant herein) in the previous suit had been paid. Vallabh Das resisted the suit on various grounds. He contended that Dr. Madan Lal was not adopted by Prem Sukh; even if he had been adopted, that adoption was not valid under the Benaras School of Hindu law by which the parties were governed as Madan Lal was a married man on July 12, 1943 and lastly the suit as brought is not maintainable as Dr. Madan Lal had not paid the costs due to him under the order in the previous suit before instituting the present suit. Both the trial Court as well as the High Court in appeal rejected every one of the contentions taken by Vallabh Das and decreed the suit as prayed for. Thereafter this appeal was brought after obtaining special leave from this Court.

2. The factum of the adoption has been upheld both by the Trial Court as well as by the High Court. There is evidence to support that finding. No convincing circumstances was brought to our notice requiring us to review the evidence over again. This Court ordinarily does not interfere with concurrent findings of fact. We see no justification to disturb the concurrent finding of fact arrived at by the Trial Court and the High Court.

3. As regards the validity of the adoption, the contention of Vallabh Das that the adoption was invalid rests on the plea that on July 12, 1943, Dr. Madan Lal was a married man. This plea has been negatived by the Trial Court as well as by the High Court. They have come to the conclusion that Dr. Madan Lal was not a married man on that date and that he was married subsequently. Here again there is no good ground for us to interfere with the finding of fact reached by those Courts.

4. The only contention that was seriously pressed before us on behalf of the appellant was that the suit under appeal is not maintainable as the condition precedent imposed by the Court in the earlier suit, namely the payment of defendant s costs by the plaintiff before bringing a fresh suit on the same cause of action has not been complied with. We do not think that his contention is well founded.

5. Rule 1, Order 23, Code of Civil Procedure entitles Courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of the subject-matter of that suit on such terms as it thinks fit. The term imposed on the plaintiff in the previous suit was that before bringing a fresh suit on the same cause of action, he must pay the costs of the defendants. Therefore we have to see whether that condition governs the institution of the present suit. For deciding that question we have to see whether the suit from which this appeal arises is in respect of the same