JUDGMENT
Edward Chamier, C.J.
1. The plaintiff in the pre-sent suit, which is for the rent of certain land for the years 1318, 1319 and 1320 F., brought a previous suit for the years 1315, 1316, 1317 and 1318 F. He asked for permission to withdraw that suit and bring another suit and the Court passed the following order:
The plaintiff has filed a petition to with-draw the suit with permission to bring a fresh suit on the ground of errors in the plaint. Ordered that the plaintiff may withdraw the suit and bring a fresh suit if not otherwise barred. The defendant is allowed coats against the plaintiff and the payment of costs is made a condition precedent to the institution of a fresh suit.
2. That order was dated March 25th, 1914. The present suit was instituted on September 8th, 1914, which was exactly three years after the expiry of 1311 F., the first of the years now in suit. The Munsif decreed the claim, but on appeal the District Judge, though holding in favour of the plaintiff, on the merits allowed the appeal and dismissed the suit on the ground that it was barred by the order recited above.
3. In second appeal it is contended that the District Judge’s order is wrong. Similar orders were considered by the Calcutta High Court in the cases of Abdul Aziz Molla v. Ebrahim Molla 31 C. 965 and Shital Prasad Mondal v. Gaya Prosud Dingal; Sadhu Charan Tewari v. Baikuntha Nath Madak 23 Ind. Cas. 210 : 19 C.L.J. 529. In the earlier case the order passed was almost in exactly the same terms as the order which we have to consider in the present case. At the time when the second suit was instituted the costs of the first suit had not been paid, but they were paid before the suit came on for trial. The High Court held that the suit was maintainable. In the latter case also the order passed was practically in the same terms as the order which we have to consider in this case, and the High Court held that as the plaintiff had obtained leave to withdraw with permission to bring a fresh suit on payment of the costs of the first suit, the Court ought merely to have regarded Section 10 as a bar to its proceeding with the trial of the second suit and that it should have proceeded with that trial when the costs of the first suit were paid. The result of these rulings is curious, but it is difficult to resist the reasoning on which the decisions are based. The condition of the permission to withdraw the first suit and bring a fresh suit was the payment of costs only. Until the costs were paid the permission was not operative, and therefore there was no withdrawal with liberty to bring a fresh suit, and the result was that until there was such a withdrawal the former suit remained pending and was, under Section 10 of the Code, a bar to the trial of the second suit. The difficulty which has arisen in the present case is due to the incompleteness of the order passed in the first suit. The order in such circumstances should limit the time within which costs should be paid and should go on to direct that on failure to pay costs within that time the original suit shall stand dismissed with costs. In my opinion, it is not possible to distinguish the present case from the cafes cited, and I would, therefore, hold that the District Judge was wrong in dismissing this suit. I would allow this appeal, set aside the decree of the District Judge, and give the plaintiff a decree for three years’ rent at the rate of Rs. 9-8-0 per annum plus 25 per cent. damages. In the circumstances I would make no order as to costs in any Court.
Sharfuddin, J.
4. I agree.