The dismissal of a suit for want of prosecution does not preclude the plaintiff from bringing a fresh suit unless the first suit had been set down for trial, and it should be provided that no fresh suit shall be instituted until all costs incurred in the first suit have been paid by the plaintiff to the defendant.

JUDGMENT

Costello, J. - In this appeal from a judgment of Buckland, J., dated 24th January 1934, a point of considerable importance arises. The learned Judge himself said:

In this case a preliminary point of considerable importance has been raised, on behalf of the defendant, by the learned Advocate-General.

2. The suit was brought to recover a sum of Rs. 50,000 or such damages as the Court might allow, for breach of a covenant contained in a lease, whereby the defendant covenanted to return the property demised by the lease in good order and condition. It appears that a suit, which admittedly was precisely the same as the present suit (the previous suit being numbered 1771 of 1928) was instituted by the same plaintiff against the same defendant and on the same cause of action; that is to say, Shailabala Dasee was the plaintiff in Suit No 1771 of 1928 and she is the plaintiff in the present suit, and Gobardhandas Ladsaria was the defendant in Suit No 1771 of 1928, and he is defendant in the present suit. On 22nd May 1930 Suit No. 1771 of 1928 was dismissed by an order of Lort-Williams, J., under the provisions of Ch. 10, Rule 36 of the Rules of this Court. There was no appeal from that order, but an application was made, said to be by way of review, to have that order set aside. It so happened that application came before me. I say it so happened," but I recollect that the reason why it came before me was (as was in effect admitted at the time) that the parties, or rather the plaintiff of set design waited until Lort-Williams, J., had proceeded on leave and until there was another Judge dealing with the interlocutory matters. The application for review was dismissed by me on 6th August 1930 and again there was no appeal from that order. The present suit was instituted on 2nd May 1931 and as I have stated, the cause of action and the issues in this suit are identical with those of the 1928 suit. The learned Judge says in his judgment:

In these circumstances, it is contended, on behalf of the defendant, that this suit cannot proceed, upon the ground of res judicata, but not upon the limited grounds which are to be found in Section 11, Civil P.C., but upon the broader principles which were referred to and recognised by their Lordships of the Privy Council in Hook v. Administrator-General of Bengal 1921 PC 11. Reliance is also placed upon the inherent powers of the Court which are preserved by Section 151, Civil P.C, and I have also been referred to the judgment of Sir Francis Maclean, C.J., in Ram Gopal Mazumdar v. Prasunna Kumar Sanial 10 CWN 529 in support of the proposition that the plaintiff, having elected to proceed, as she did, by applying to have the order of dismissal set aside and having failed on that application, is not entitled now to litigate the matter afresh by a separate suit.

3. The learned Judge stated the points which he had to determine, briefly and concisely, in these terms,

whether an order of dismissal under Ch. 10, Rule 36 of the Rules of this Court operates as a bar to a fresh suit.

4. The rule in question runs thus:

Suits and proceedings, which have not appeared in the Prospective List within six months from the date of institution, may be placed before a Judge in Chambers, on notice to the parties or their attorneys, to be dismissed for default unless good cause is shown to the contrary, or be otherwise dealt with as the Judge may think proper.

5. The authority of that rule was challenged, in the year 1924, in Udoy Chand v. Khetsidas Tilokchand 1924 Cal 1025 where however Sir Lancelot Sanderson, C.J., held that the rule is not ultra vires and that the Court has jurisdiction to dismiss a suit for default when it appears on the Special List. It was also held in that case that the decision of a Judge on the Original Side of the High Court dismissing a suit for want of prosecution under Ch. 10, Rule 36 of the Rules of the Court, is a judgments within the meaning of Clause 15 of the Letters Patent and, according