Judgment

VENKATARAMIAH, J. :- Has justice become the lip-aim of Courts instead of their life aim? Instead of dispensing justice is justice being dispensed with? Is it a fact that only the spelling of the word (justice) is remembered and the content of the concept is forgotten? Were it not so, would a Court in its professed anxiety to do justice, dismiss a suit. as incompetent on the ground that a sum of Rs. 100/- ordered to be paid as costs whilst granting leave to withdraw the earlier suit with liberty to file a fresh suit was deposited after the institution of the fresh suit and not before the institution thereof?

2. Appellant firm instituted a suit against the respondents. On the date of the institution of the said suit the appellant-firm had not been registered under section 69 of the Indian Partnership Act, 1932, and the suit was liable to fail on this technical ground. The appellant firm, therefore, prayed for permission to withdraw the said suit with liberty to file a fresh suit on the same cause of action under sub-rule (3) of rule 1 of Order XXIII of the Code of Civil Procedure, 1908. That application was, granted by the Court. The operative part of the Order dated September 4, 1984 passed on that application read as under :-

"Under such circumstances this application is granted but on payment of costs of Rs. 100/-by the plaintiffs to the defendants. Suit is dismissed as withdrawn, with liberty to file a fresh suit."

3. The present suit, out of which this appeal by special leave arises, was filed subsequently on October 5, 1984. The appellant filed an application in that suit for an order of temporary injunction against the respondents. When that application came up for hearing it was pointed out that the appellant had failed to pay the costs of Rs. 100/- before filing the suit and so the suit was not maintainable. At that stage the appellant offered to pay the costs of Rs. 100/- which it was liable to pay under the order of the Court dated September 4, 1984. On the respondents refusing to receive the costs an application was made before the trial court for permission to deposit it in the Court by extending the time up to that date. The appellant deposited the costs of Rs. 100/- in the trial court on that date. That application was allowed by the trial court on April 12, 1985 by extending the time till January 16, 1985 and holding that the suit was maintainable. Aggrieved by the said just and fair order passed by the trial court, the respondents filed a revision petition before the High Court of Bombay, Panaji Bench (Goa) in Civil Revision Application No. 87, of 1985 questioning its correctness. The High Court exercising revisional jurisdiction, after hearing both the parties allowed the petition holding that the suit was void ab initio since the costs of Rs. 100/- which had to be paid under the order dated September 4, 1984 had not been deposited before its institution.. This appeal by special leave is directed against the said order of the High Court.

4. We have heard the learned counsel for the parties. Parties have cited before us a number of decisions : Gollapudi Seshayya v. Nadendla Subbaya, AIR 1924 Mad 877, Shidramappa Mutappa Biradar v. Mallappa Ramachandrappa. Biradar, AIR 1931 Bom 257, Ramakrishna Timmappa Shetti v. Hanumant Patgavi, AIR 1950 Born 113, Mast Ram Ram Charan v. Dy. Commr., Bahraich AIR 1968 All 321, Binod Naik v. Chandrasekhar Padhi, AIR 1969 Orissa 134, Chikkahanuma v. Smt. Venkatamma, AIR 1971 Mys 167 and Raja Traders v. Union of India, AIR 1977 Madh Pra 54. We have carefully considered all the above decisions. Sub-rule (3) of rule 1 of Order XXIII of the Code of Civil Procedure, 1908 provides that where a Court is satisfied that a suit must fail by reason of some formal defect or that there are 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 withd