V. RAMASWAMI, J. :- This is an appeal against the order of the learned Judge, Shanmukham J. trying the following two issues as preliminary issues and giving a finding thereon -

1. Is the suit not maintainable in view of the dismissal of C.S. 548 of 1981?

2. Is the suit liable to be dismissed as the cause of action does not arise under the Admiralty Jurisdiction of the court ? On the first issue, the learned Judge held against the defendant and found that the suit is maintainable. On the second issue, though the learned Judge agreed with the defendant that the cause of action does not arise under the Admiralty Jurisdiction of this Court, treated the suit as one filed under the Ordinary Original Jurisdiction of this Court and in that view the suit was held not liable to be dismissed. It is against this finding that the defendant has preferred this appeal.

2. Before dealing with the arguments in the appeal, it is necessary to set out certain facts. The plaintiff is a firm of partnership registered under the Partnership Act. It was so registered on 30-11-1981. Prior to its registration, as an unregistered firm, C.S. 548 of 1981, was filed on 24-11-1981, invoking the Admiralty Jurisdiction of this Court. Along with the suit, application No. 4062 of 1981, was filed praying for an order of arrest of the vessel Sir Godfrey Armstrong in the port of Madras. Time for filing counter-affidavit was taken by the defendant on 25-11-1981 and the case was adjourned for such filing of counter to 27-11-81. On that day, a counter was filed. However the case was not taken up, but was further adjourned at the request of the counsel for the plaintiff, who appeared to have represented that he wished to withdraw the suit. Subsequently, on 30-11-1981, the counsel for the plaintiff in C.S. 548 of 1981, made the following endorsement on the plaint -

"The suit is not pressed. The suit may be dismissed and half Court-fee may kindly be ordered to be refunded."

On that, the learned Judge made the following order :-

"The learned Counsel for the plaintiff has endorsed on the plaint that he is not pressing the suit. Hence dismissed. Mr. U.N. Rao, the learned Counsel for the defendant, presses for his cost. But I am not inclined to accede his request, because he has not filed his written statement and he entered appearance because of Application No. 4062 of 1981." After the withdrawal of the suit, on the same day, the plaintiff respondent herein presented the present suit after the firm was registered under the Partnership Act. Along with the plaint, again the plaintiff filed application No. 4126 of 1981, praying for an order of arrest of the said vessel. A counter-affidavit had been filed in which it was contended that consequent on the withdrawal of the prior suit, the plaintiff is precluded from filing the second suit on the same subject-matter. In reply to this counter-affidavit, the plaintiff stated the circumstances under which he withdrew the earlier suit. It was stated that at the time when the previous suit was filed the firm was not registered and on the assumption that a registration under the Income-tax Act would be sufficient for filing a suit by the firm, the earlier suit was filed, but coming to know that the registration under the Income-tax Act was not sufficient to sue in the name of the firm, the plaintiff applied for registration of the firm under the Indian Partnership Act on 28-11-1981 and it was registered an 30-11-1981, and therefore, the earlier suit C. S. 548 of 1981 was withdrawn. It was further contended that the unregistered firm is in law a nonentity and that therefore, the filing of the earlier suit or the withdrawal of the same did not bar the filing of the second suit. We are mentioning these facts in order to show what the parties understood by the words 'not pressed' and why the earlier suit was withdrawn. A written statement was filed by the defendant in which again a plea that the plaintiff had abandoned the earlier suit a