( 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 Commercial Superintendent (Claims) of the said railway, applied for permission of the Court to withdraw from the suit with liberty to institute a fresh suit on account of the above formal defect. The defendants opposed that application. The trial Court passed the following order :-

"the plaintiff is permitted to withdraw from this suit with liberty to institute a fresh suit in respect of the subject-matter of this suit. The plaintiff shall bear his own costs of this suit as well as that of the defendant so far incurred. The fresh suit of the plaintiff, if any, shall be maintainable only if the cost ordered above is paid up before filing of such suit The suit of the plaintiff is dismissed as withdrawn. "

That order was passed on September 2, 1971. On July 1, 1972, the fresh suit was instituted against (1) Union of India, and (2) M/s. Patny Transport and company, Agent Transporters for South Eastern Railway, Jagdalpur, District bastar, Madhya Pradesh. In paragraph 7 of the plaint the fact of withdrawal of the suit with permission to institute a fresh suit (Civil Suit No. 6 of 1970) is mentioned and it is also stated that the plaintiff served a legal notice to defendant No. 1, through the General Manager, South Eastern Railway and central Railway and also to defendant No. 2. However, costs were not paid to the defendant before or at the time of institution of the fresh suit. On september 22, 1972, the second defendant raised a preliminary objection and prayed for dismissal of the suit. His objection was that the plaintiff had not paid costs of the earlier Civil Suit No. 6 of 1970, which was a condition precedent for institution of the fresh suit. The fresh suit brought without payment of costs is void ab initio. Payment of costs after filing of the fresh suit does not save it. Moreover, now the payment of costs cannot be accepted as the time-limit has already passed and the suit will be barred by limitation on the date on which payment of costs will be made This suit will be supposed to be presented in the court on the date on which the costs will be paid and the time of limitation for the suit has already elapsed. ( 4 ) ON October 28, 1972, the plaintiff applied for permission to deposit the costs and also applied for condonation of the delay. These applications were opposed by the second defendant. By its order, dated January 12, 1973, the trial Court accepted the objection and dismissed the suit. In the same order the trial Court rejected the plaintiffs application for permission to deposit the costs and for condonation of delay. It appears that defendant No. 1 was not served with notice of the fresh suit.

( 5 ) AGGRIEVED by dismissal of the suit, the plaintiff preferred this revision under section 25 of the Small Cause Courts Act. It was placed before Bhave,