JUDGMENT - 1. The original plaintiff has come here in appeal from an order, passed by the District Judge, Bhandara, summarily dismissing his appeal and confirming the order passed by the Civil Judge, Senior Division, Bhandara, that the suit filed by the plaintiff was not tenable because of failure of the payment of the costs of the previous suit which was withdrawn by him with the permission of the Court on condition that he would pay the costs before the institution of the second suit.

2. The plaintiff had filed a suit for a declaration of a right of way over, the Dhura between the fields of the plaintiff and the defendant and for a consequential permanent injunction restraining the defendant from obstructing him from the exercise of that right. At first the plaintiff had filed Civil Suit No. 113 of 1964 against the defendant for these reliefs. The plaint was defective and, therefore, he sought permission of the Court under Order 23, Rule 1, Civil Procedure Code to withdraw the suit with liberty to bring a fresh action on the same cause of action. The trial Court, therefore, passed an order permitting him to withdraw the suit but directed him to pay the costs of the defendant with

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