( 1 ) THE question referred to this Bench is

"whether non-payment of the costs, (which were directed to be paid by the plaintiff to the defendant when permission was granted under order 23, Rule 1 (2) of the Code of Civil Procedure for with drawing from the suit with liberty to institute a fresh suit,) before filing of a fresh suit, renders the suit non-tenable, or whether the non-payment of the costs is a mere irregularity and does not affect the tenability of the suit irrespective of the fact whether the costs were paid be fore or after the period of limitation has expired. "

(Parenthesis is mine.)

( 2 ) THE question is a composite one. While dealing with it we would endeavour to analyse and to give our answer with respect to each component.

( 3 ) M/s. Raja Traders instituted a suit (Civil Suit No. 6 of 1970) on the small cause side in the Court of the District Judge, Jagdalpur. That suit was against the Union of India in respect of a transaction with the South Eastern Railway. The plaintiff realising that a notice under Section 80 (b) of the Code of Civil procedure having not been given to the General Manager of the said Railway, but was given to the Chief Commerc