JUDGMENT

Sulaiman, C.J. - This is a plaintiff's appeal arising out of a suit which has been dismissed on the ground that the claim is barred by limitation. Previous to the present suit the plaintiff had instituted a suit on the same cause of action against two sets of defendants. An objection was taken that the suit was defective on account of multifarious ness because different causes of action arising against different defendants had been wrongly joined together. The Court expressed the opinion that there was this serious defect and actually ordered that the plaintiff should elect as to which of the two classes of defendants he would like to proceed against. After this order was passed, the plaintiff filed an application under Order XXIII, Rule 1, CPC for withdrawal of the suit against one set of the defendants with permission to institute a fresh suit against them afterwards and chose to proceed with the suit as against the remaining defendants. The Court ordered the suit to be withdrawn and granted the permission asked for. On the very day that the permission was granted the plaintiff instituted the present suit.

2. It is admitted that the claim of the plaintiff would be barred by time if he is not allowed to take advantage of the previous suit which was withdrawn against the present defendants. The only question is whether he is entitled to get the benefit of the provisions of Section 14(1) of the Indian Limitation Act. No question has arisen, as to whether he was not prosecuting the previous case with due diligence and in good faith. The suit has been dismissed on the ground that in view of the provisions in Order XXIII, Rule 2, Section 14 of the Limitation Act is inapplicable. The case came up for disposal before a Division Bench which has referred it to a Full Bench.

3. It cannot be said that there is any direct conflict of opinion on this question either in this Court or in other High Courts. It can only be said that the question is of some importance and is a somewhat difficult one to decide and it is on this ground only that the case has been referred to a Full Bench, though it might well have been decided by the Bench itself.

4. u/s 14 of the Limitation Act, a plaintiff is entitled to exclude the period of time taken in prosecuting any previous civil proceeding with due diligence 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. Explanation III, added to the section in the new Act makes it clear that misjoinder of parties or of causes of action is a defect of a like nature within the meaning of the section.

5. Prima facie it would seem that the plaintiff is entitled to get the time taken in the previous suit excluded because the Court had actually ordered that he must elect whether he would proceed against one set of the defendants or, against the other set, and in that sense the Court had expressed its opinion that it was unable to entertain the suit as filed.

6. Order XXIII, Rule 1, permits a Court to allow a suit to be withdrawn with permission to file a fresh suit if it is satisfied that the suit must fail by reason of some formal forfect or there are other sufficient grounds for permitting the plaintiff to institute a fresh suit.

7. Rule 2 provides;

In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.

8. Taking the words of Rule 2 as they stand, there can be no doubt that they imply that for purposes of a second suit, it must be assumed that the law of limitation will have its full effect as if no suit which had been withdrawn had ever been instituted. The result is that it must be treated that the suit that had been withdrawn was a nonexistent suit. If this is to be the assumption then, obviously the plaintiff cannot be allowed