Order 23, Rule 2, Civil P. C. bars the application of Section 14(1) of the Limitation Act in cases where a plaintiff withdraws a suit or abandons part of the claim with permission to bring a fresh suit.

WANCHOO, C. J.

( 1 ) THIS is a second appeal by Madhosingh and Jatendrasingh against the order of the Civil and Additional Sessions Judge, Balotra, and has arisen, in the following circumstances.

( 2 ) A suit was filed by the appellants for Rs. 3,100/- on 23-7-1946, in the court of the Judicial Superintendent, Malanee. The suit included two distinct claims based on two separate causes of action. There was an objection as to multifarious-ness. Thereupon the court ordered in May 1947 that the plaint should be amended, and allowed 14 days time to do so.

( 3 ) IN July 1947, the appellants filed two drafts of two plaints--one for Rs. 2,000/and odd, and the other for Rs. 800/- and odd, separating the claims arising out of the two causes of action. The court again ordered the appellants to choose as to which case they wanted to remain in that court, and which they wanted to withdraw. The appellants applied on the 18-11-1947, that they wanted to keep the suit for Rs. 2000/- and odd in that court, and wanted to withdraw the suit for Rs. 800/- and odd with permission to bring a fresh suit. Thereupon, on 26-11-1947, the appellants were allowed to withdraw their claim with respect to Rs. 800/- and odd with permission to bring a fresh suit in that connection. They then filed a fresh suit for Rs. 800/- and odd in the court of the hakim in December, 1947. In that case an objection was taken that the suit was time-barred. The appellants prayed for the benefit of Section 14, Limitation Act. The courts below have, however, held that the benefit of Section 14 cannot be granted to the appellants in view of the provisions of Order 23, Rule 2, Civil P. C. Hence this second appeal.

( 4 ) THE only question, therefore, that requires determination now is whether the appellants can be granted the benefit of Section 14 (1), Limitation Act, which provides that the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

( 5 ) ORDER 23, Rule 2, on the other band, specifically provides that where a plaintiff is permitted to withdraw the suit or abandon part of the claim with liberty to bring a fresh suit, the plaintiff shall be bound by the Law of Limitation in the same manner as if the first suit had not been instituted.

( 6 ) THE courts below have held that Order 23, Rule 2, Civil P. C. applies in this case with full force, and, therefore, the appellants cannot get the benefit of Section 14 (1) of the Limitation Act.

( 7 ) IT is obvious that the benefit of Section 14 (1), Limitation Act, can only be given where proceedings are terminated by a court on the ground that it is unable to entertain them for want of jurisdiction or other cause of a like nature. There must also be an order of the Court to this effect. Order 23, Rule 2, on the other hand, applies, where there is no order of the court terminating the proceedings, and the proceedings come to an end because a party wants to withdraw the suit or abandon part of the claim with permission to file a fresh suit. The High Courts are practically unanimous that Section 14 (1) has no application to a case to which Order 23, Rule 2 applies. In this connection, reference may be made to -- sadayatan Pande v. (Firm) Ram Chandra Gopal, AIR 1934 All 688 (A ). The same view was taken in -- kaliandas Balchand v. Muhammad Akbar Fatehali, air 1940 Sind 125 (B) and in -- virupakshappa v. Veerabhadra Gowd, A. I. R. 1943 Madras 80 (C ). The law is therefore settled that if a case is covered by Order 23, Rule 2, Civil P. C. , Section 14, Limitation Act, has no application, and it only remains to see whether this case is covered by Order 23, Rule 2, Civil P. C.

( 8 ) L