( 1 ) A short but interesting question which is raised in this appeal is with regard to the effect and interpretation of the provisions of Order 23, Rule 1 of the code of Civil Procedure, 1908 (code for short) on a subsequent suit for recovery of amount advanced.

( 2 ) THE appellant who is the original plaintiff had instituted Summary suit No. 1556 of 1973 against the respondent- original defendant for recovery of an amount of Rs. 8,750/- in the City Civil court at Ahmedabad. The plaintiff inter alia contended that he is the sole proprietor of business run in the name of m/s Hiramal Udhemal at Haripura, asarwa, Ahmedabad. It is his case that as he was friendly with the defendant, he had given him short term loans on account of his stringent financial difficulties. On various occasions, the defendant went on taking loans from the plaintiff and he also made part payments. As per the case of the plaintiff, the defendant had taken the total amount of rs. 38,000/- between the period from november 1970 and April 1972. The defendant had paid an amount of Rs. 31,000/ -. It is also the case of the plaintiff that the defendant had given two cheques drawn on Dena Bank for Rs. 2,500/- to the plaintiff. Both cheques came to be bounced. Therefore, the plaintiff claimed an amount of Rs. 7,000/- as principal amount and Rs. 1,750/- as interest at the rate of 12% per annum in the suit.

( 3 ) THE defendant resisted the suit by filing written statement at Ex. 24 and raised various contentions against the claim of the plaintiff in the suit. He inter alia contended that the plaintiff had instituted summary suit No. 2023 of 1971 against him On the same cause of action but the said suit was withdrawn unconditionally on December 17, 1971 by filing application Ex. 29 in that suit. It also pleaded by the defendant that the plaintiff had sought permission of the court for filing a fresh suit on the same cause of action which was rejected. It is, therefore, contended by the defendant that the suit is barred and not maintainable. The defendant also contended that he had paid full dues and the plaintiff is not entitled to claim any amount. Thus, the suit was fully resisted.

( 4 ) DURING the course of the proceedings before the trial Court, a preliminary issue about maintainability of the suit Was raised with the consent of parties. The preliminary issue raised was whether the suit filed by the plaintiff is maintainable in view of the fact that the civil Suit No. 2023 of 1971 filed by the plaintiff was withdrawn without obtaining permission of the court to file a fresh suit. In short, the preliminary issue was whether the suit filed by the plaintiff is barred by the provisions of Order 23, rule 1 of the Code. After hearing both the parties and considering the facts and circumstances, the trial Court held against the plaintiff and found that the suit is barred by the provisions of Order 23, rule 1 of the Code.

( 5 ) BEING aggrieved by the said judgment and decree passed by the trial court, the original plaintiff has now come up before this Court challenging its legality and validity by filing this appeal under Section 96 of the Code.

( 6 ) LEARNED Counsel appearing for the appellant original plaintiff has contended that the impugned judgment and decree is illegal as the suit filed by the plaintiff is not barred by the provisions of Order 23, rule 1, C. P. C. In support of these contentions, reliance is also placed on a decision of the Supreme Court. When the matter was called out, none appeared for and on behalf of the respondent- defendant.

( 7 ) ORDER 23, Rule 1 of the Code makes provision for withdrawal of the suit or abandonment of part of claim. The finding of the court is that the suit filed by the plaintiff is barred by the provisions of Order 23, Rule 1 (3) Order 23, Rule 3 empowers the court to allow the plaintiff to institute fresh suit on the subject- matter of the suit or part of the claim while granting permission to withdraw the