KONKAN TRADING COMPANY versus SURESH GOVIND KAMAT TARKAR & ORS.

Citation: [1986] 2 S.C.R. 182 · Decided: 04-04-1986 · Supreme Court of India · Bench: E.S. VENKATARAMIAH, M.P. THAKKAR · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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182 
KONKAN TRADING CCllPANY 
v. 
SURESH OOVIND KAMAI TARKAR & ORS. 
APRIL 4 , 1986 
[E.S. VENKATARAMIAH 
AND M.P. THAKKAR, JJ.] 
Civil Procedure Code, 1908, s.148 and Order 23 Rule 1(3) 
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Withdrawal of suit with liberty to file fresh suit -
Permission granted on payment of 'costs' - Whether 'Costs' to 
be deposited 'after' or 'before' institution of fresh suit. 
A suit instituted by the appellant-firm against the 
respondents was allowed to be withdrawn but on payment of 
costs of Rs. 100 with liberty to file a fresh suit on the salll! 
cause of action under sub-rule (3) of rule 1 of Order XXIII of 
the Code of Civil Procedure, 1908. The appellant-firm filed a 
fresh suit, which was opposed by the respondents contendig 
that the suit was not maintainable because the appellant-firm 
had failed to pay the costs of Rs. 100 'before' the filing of 
the suit. The appellant offered to pay the costs but the -1
respondents refused to accept the same. Consequently, the 
appellant-firm, with permission, deposited the costs in the 
Trial Court, which held that the suit was maitainable. 
The High Court allowed the revision petition filed 
by the respondents holding that the suit was void ab initio >
since the costs had not been deposited before the institution 
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of the suit. 
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Allowing the appeal of the appellant-firm to this Court, 
HELD : 1. The judgment of the High Court is set aside 
and the order of the Trial Court is restored. [186 F] 
2. While granting permission under sub-rule (3) of Rule 
1 of Order XXIII of the Code of Civil Procedure, 1908, it is Y 
open to a court to direct the plaintiff to pay the costs of 
the defendants. Even if the order for costs in a given case is 
construed as directing payment of coe1ts as a condition 
precedent for filing a fresh suit, the defect, if any, may be 
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KONKAN TRADING CO. v. S.G.K. TARKAR 
183 
+cured by depositing in Court or paying to the defendants 
concerned the costs within a reasonable time to be fixed by 
the Court )lefore the second suit is filed." If the plaintiff 
fails to comply with the said direction, then it will be open 
to the Court to reject the plaint, but if the amount of cost 
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is . paid within the, time fixed or extended by the Court, the 
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suit shall be deemed to have been instituted validly on the 
.-fdate on wliicli ·it was presented. This view is in consonance 
with justice and the spirit of section 148 of the Code of 
Civil Procedure. [185 F-H; 186 A-BJ 
Goll.apudi 
Sesbavya 
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KadencU a 
Subbayaya 
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Anr~, 
A.I.R. 
1924 Madras 877., Sbidramppa !btappa Biradar v. 
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Mallappa F.amc:handrappa Biradar, A.I.R. 1931 Bombay 257, Ra.. 
;-1'Krlsbna T1-ppa Sbettl v. Jlannwant Patgavi, A.I.R. 
1950 
Bombay 113, Hast Raa Rirwcharan & Ors. v. Deputy ~ssioner, 
Bahraich and Anr., A.I.R. 1968 Allahabad 321, Binod Naik & 
Anr. v. Clandrasekhar Padhi & Ors., A.I.R. 1969 Orissa 134, 
Cifkkabamw v. s.t. Venlcau- & Ors., A.I.R. 1971 Mysore 167 
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and K/s. Raja Traders v. Union of India & Anr., A.I.R. 1977 
M.P. 55 cited. 
3. In the instant case the costs of Rs. 100 had not been 
ordered to be deposited as a condition precedent before the 
l . institution of the next suit. The plaintiff was only liable to 
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~pay a sum of Rs. 100 by way of costs. The word 'but' in the 
clause 'this application is granted but on payment of Costs of 
Rs. 100 •••• 1 in the order permitting the withdrawal of the 
suit cannot be construed as imposing a condition precedent for 
the filing of fresh suit. There is no warrant for taking a 
hypertechnical view which results in denying to a person 
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'""'(access to justice and deprives him of his legal rights' more so 
'when it is possible to take a liberal view which promotes the 
ends of justice. [186 C-F) 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1205 of 
1986. 
From the Judgment and Order dated 27.9.1985 of the 
Bombay High Court Panaji Bench in Civil Revision Application 
No. 87 of 1985. 
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Dr. Y.S. Chitale and K.R. Nambiar for the Appellant. 
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R.F. Nariman, ·R. Karanjawala, H.S. 
Anand and Mr$; 
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Karanjawala for the Respondents. 
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184 
SUPREME COURT REPORTS 
[19861 2 s.c.R. 
_The Judgment of the Court was delivered by 
VENKATARAMIAH, J. Has justice becore the lip-aim of 
Courts instead of their life - aim? Instead of dispensing 
justice is justice being dispensed with? ls it a fact that 
only the spelling of the word (justice) is rerembered and the 
content_of the co
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