Order 23 Rule 1 CPC does not bar a suit filed before withdrawal of the earlier suit; remand followed.

Order 23 Rule 1 CPC applies only where a fresh suit is instituted after withdrawal or abandonment of the earlier suit. It does not bar a suit already filed before the earlier suit comes to an end, and the rule cannot be expanded by adding words to its plain language. On that basis, the second appeal could not be dismissed solely on this ground. The court allowed the appeal and remanded the matter for decision on the remaining issues and on the merits.

---

---

Issues: Whether a suit instituted before the withdrawal or abandonment of an earlier suit is barred by Order 23 Rule 1 of the Code of Civil Procedure, 1908.

Analysis: Order 23 Rule 1 applies to permission to withdraw a suit with liberty to institute a fresh suit after withdrawal. The provision was held to govern only suits instituted after the earlier suit has been withdrawn or abandoned. It was not open to read the rule as barring a suit already filed before the earlier suit came to an end. The contrary view would add words to the rule and extend it beyond its clear language. Accordingly, the dismissal of the second appeal solely on this ground could not stand, and the matter had to go back for decision on the remaining legal points and on the merits.

Conclusion: The second suit was not barred by Order 23 Rule 1 merely because it had been filed before withdrawal of the earlier suit; the appeal was allowed and the matter remanded for decision on the other issues.

Ratio Decidendi: Order 23 Rule 1 bars only a fresh suit instituted after withdrawal or abandonment of the prior suit, and does not bar a suit filed before such withdrawal or abandonment.

---