( 1 ) THIS is a revision petition filed by the original plaintiffs under sec. 115 of the Civil Procedure Code (which will be hereinafter referred to as the Code) against the order passed by learned Judge City Civil Court 2 Court Ahmedabad City. Mr. V. R. Shah (as he then was) below Ex. 16 dated 9th December 1966 rejecting the application filed by the plaintiffs for refund of the Court fees paid by them in Summary Suit No. 645 of 1965 withdrawn by them with liberty to bring a fresh suit on the same cause of action on 19th August 1965

( 2 ) A short but interesting question which is of general importance arises in this revision petition. AN application for refund was made by the present plaintiffs in view of Notification No. C C C1061/7005- (i) D dated 4th November 1961 issued by the Government under sec. 43 (2) of the Bombay Court fees Act 1959 which will be hereinafter referred to as the Act ). The said notification provides for refund of Court fees paid on the plaint in certain circumstances mentioned in the Schedule to the Notification. The Schedule mentions six separate sets of circumstances under which the Court fees paid on the plaint can be refunded. In the instant case the plaintiffs claim refund of Court fees on the basis of Item No. 3 referred to in the Schedule which reads :-SUIT which is got dismissed by the plaintiff for want of prosecution before settlement of issues or recording of any evidence. IF that item is applicable to the circumstances of the present case the plaintiffs would be undoubtedly entitled to refund of the Court fees to the extent of two third of the Court fees paid by them on the plaint. Item No. 4 reads:-SUIT which is withdrawn unconditionally by the plaintiff (before the settlement of issues or recording of any evidence) as settled out of Court. It is admitted on both sides before me as well as before the trial Court that the present case does not fall within the category of the suit disposed of as referred to in Item No. 4.

( 3 ) THE important question therefore that arises for consideration is whether it could be said that the suit which was permitted to be withdrawn by the Court with liberty to bring a fresh suit on the same cause of action can be said to be a suit got dismissed by the plaintiffs for want of prosecution. If answer is given to that question in the affirmative the petitioners would be undoubtedly entitled to refund of the two third of the Court fees.

( 4 ) MR. S. K. Zaveri learned Advocate appearing for the petitioner urged that the disposal of the suit in this manner would tantamount to Betting the suit dismissed by the plaintiffs for want of prosecution. It was urged by him that the scheme of the Code recognized only two modes of disposal of the suit- (i) by decreeing the suit and (2) by dismissal of the suit. No third mode of disposal of the suit was contemplated by the Code. In the instant case the suit was not decided on merits. The suit came to be disposed of as the petitioner withdrew the suit no doubt with the permission to bring a fresh suit on the same cause of action. No relief was granted by the Court. It was therefore submitted that it could be said that the suit was got dismissed by the plaintiffs for want of prosecution. In support of his arguments he invited my attention to certain decisions to which I will make reference at an appropriate stage.

( 5 ) HE invited my attention to the wording of Order 23 Rule 1 of the Code and urged that Rule 1 of Order 23 of the Code dealt with Withdrawal of it or abandonment of part of claim. Sub-rule (1) of it dealt with withdrawal of the suit and sub-rule (2) of it dealt with withdrawal from suit with a liberty to institute a fresh suit on the same cause of action. In both the categories referred to in those two sub-rules undoubtedly there was withdrawal. It was therefore submitted by Mr. Zaveri that no distinction can be made as regards grant of refund of Court-fees in two categories (i) whether the suit is wit