JUDGMENT
John Edge, Kt., C.J. and Banerji, J.
1. The suit in which this appeal has arisen was instituted on the 3rd November 1892, for rent due in respect of a villages for the years 1297, 1298 and 1299 Fasli. The suit was brought upon a lease which reserved a lump yearly rent for the village. In the lease the village is described as containing 7, 323 bighas, but the rent was not fixed per bigha. The plaintiff in the Lower Appellate Court obtained a decree for rent for the three years in question. One of the grounds in this appeal by the defendant is that the village in fact contained only 7,003 bighas, and he claims a proportionate section in respect of 320 bighas. It appears to us that the reference to 7,323 bighas was not intended or expressed as a warranty that the villas contained in actual measurement 7,323 bighas. The rent was fixed irrespective of the number of bighas and for the village en bloc. In our opinion the mis-description of the number of bighas in the village does not under the circumstances, entitle the defendant to any deduction.
2. A prior suit had been brought by the plaintiff against the defendant upon the same lease to recover the rent of the village for 1296 1297 and 1298 Fasli. At the time when that prior suit was brought the rent for 1299 Faali had accrued due and was payable, and could have been claimed in that suit. That prior suit was withdrawn by the plaintiff on an application for that purpose, and liberty was granted to him touring a fresh suit. That application was made, and that permission was granted, under Section 373 of Act No XIV of 1882. It appears that the defendant had no notice of that application, and that he order giving permission to withdraw and bring a fresh suit was made behind the back and without the knowledge of the defendant and without his having an opportunity of being heard. The order, however, was made and is final. In our opinion the defendant cannot, in this suit, question the validity of that order. It is true that the order was apparently not appealable, but the defendant was not left without his remedy if he wished to challenge that order by proper procedure.
3. We now come to the more difficult question in this appeal. Part of the claim in this suit is for rent for 1299 Fasli, which might have been included by the plaintiff in his prior suit and, no doubt, if the plaintiff had obtained a decree m that prior suit, the illustration to Section 43 of Act No XIV of 1882 would have covered the present claim for rent for 1299 Fasli, and it could not have been maintained in this present suit. It appears to us that if the prior suit had been withdrawn without permission granted under the first paragraph of Sections 373 of Act No. XIV of 1882, Section 43 of that Act would have applied and would have barred any remedy in the present suit rent for 1299 Fasli. It has been by the Madras High Court in Venkata Shetti Raga Navak I.L.R. 10 Mad 160, that where a suit is withdrawn under Section 373 with permission to bring a fresh suit, the effect of such permission is to leave matters in the position in which they would have stood if no such suit had been instituted. Our attention has also been drawn to the decisions of this Court in Ilahi Bakhsh v. Imam Bakhsh I.L.R. 1 All. 324 and in Mul Chand v. Bhikari Das I.L.R. 7 All. 624.
4. The question is not free from difficulty, but we are not inclined to differ from the view expressed by the Madras High Court in the case to which we have referred, and we think that it is most probable that the Legislature intended that when a suit was withdrawn with permission under the first paragraph of Section 373 of Act No. XIV of 1882, the effect should be to leave the parties in the same position as that in which they would have been if the suit had never been brought. This view is supported by Section 3741 of Act No. XIV. of 1882.
5. The appeal fails and is dismissed with costs.
1. Section 374: In any fresh suit instituted on permission
Limitation law not granted under the last preceding section, the plaintiff shall be
affected by first suit. bound by the law of limitation in the same manner as if the first
suit had not been brought.
