A plaintiff who is permitted to withdraw a suit with the condition of paying costs before instituting a fresh suit must comply with that condition precedent in order for the second suit to be maintainable.

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filed by the plaintiff was not tenable because of failure of the payment of the costs of the previous suit which was withdrawn by him with the permission of the Court on condition that he would pay the costs before the institution of the second suit.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 within two months of the date of that order or, at any rate, before the institution of a fresh suit. The present suit, with which we are concerned, was then filed on the same cause of action but the costs were not deposited either within two months of the date of the order or before the institution of the second suit. It appears that these costs were deposited on 1-7-1965 pending the second suit. The second suit was disposed of on 17th of September 1965. It is also common ground that the defendants advocate Mr. Markandewar withdrew that sum on 24-12-65 pending the appeal before the District Judge, Bhandara. The defendant resisted the claim of the plaintiff stating that the suit was not tenable because he had no cause of action for this suit on account of his nonpayment of his costs before the institution of the suit or within two months after the permission, granted to him, to withdraw the first suit. According to him, the plaintiff had not complied with that order and, therefore, his suit should be dismissed.

3. The learned Civil Judge, Senior Division, framed a number of issues but dismissed the suit on the issue regarding the tenability of this suit. An issue "Is the suit not tenable without payment of costs of the previous suit No. 114/1964 withdrawn by the plaintiff as contended in para 10 of the written statement?" was framed, and the learned Civil Judge found that the suit was not tenable. He, therefore, dismissed it on this finding on the preliminary issue.

4. The matter went up in appeal before the learned District Judge, and the learned District Judge also agreed with the view of the trial Court. Both the Courts below relied on a ruling in Shidramappa v. Mallappa, AIR 1931 Bom 257, which lays down a proposition that when once a suit is withdrawn it is no longer pending and the permission given by the Court relates to the bringing of a fresh suit. If permission to withdraw is granted subject to payment of defendants costs before the institution of a second suit and if the plaintiff has brought the second suit without payment of the costs, then the second suit was barred as it was brought without fulfilling the conditions imposed in the first suit. Belying upon this proposition of law, both the lower Courts found that the second suit brought by the present appellant was not tenable.

5. The only point for determination therefore is to see whether the present suit was tenable without payment of the costs of the previous suit as was directed by the order passed by the first Court permitting the plaintiff to withdraw the first suit and file a second suit on the same cause of action. Now, it is, therefore, common ground that the plaintiff had filed a previous suit but because it was defective, therefore, he sought the permission of the Court to withdr

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