Judgment.- The appellant who is the third defendant appeals against an order by the learned Additional Subordinate Judge directing restoration of the suit to file and a trial on its merits. The facts are these: The plaintiff first filed O.S. No.439 of 1947 for rent and recovery of possession against defendants 1 to 3. The second defendant denied the titles of the plaintiff and claimed title through the third defendant. After these pleadings were filed, the plaintiff was permitted to withdraw his suit, which was dismissed with liberty to file a fresh suit, on payment of costs of Rs.5 to the second defendant before the institution of the next suit. The plaintiff then filed O.S. No.47 of 1949, unfortunately, without paying Rs.5 costs to the second defendant. He paid, however, these costs after the institution. On this technical ground the suit was dismissed. The unfortunate plaintiff th,en filed a third suit which the learned District Munsif dismissed as not maintainable in view of the dismissal of the second suit. The learned Subordinate Judge, in appeal, in my view quite rightly, directed its restoration to the file of the District Munsiff for trial on merits. He considered a number of Bombay decisions which dealt with cases where permission to file a second suit was given with a direction that the costs should be paid to the defendant or defendants as a condition precedent to the filing of the second suit. My attention has been drawn to a more recent Bombay decision in Ramakrishnan Thimmappa v. Hanumant Patgavi1, which adopted the strict view that where a plaintiff was allowed to withdraw his suit with liberty to bring a fresh suit, with a condition that he should pay the costs of the defendant, before the institution of the fresh suit, the condition imposed must be strictly complied with. It was also held that if the plaintiff brought a fresh suit without paying the costs, then the suit was not properly framed and was liable to be dismissed, and further more that after the se:ond suit was dismissed, even after the payment of the costs, the third suit was barred. With great respect, I am unable to accept that view. With great respect, I am unable to accept that view. The learned Subordinate Judge observed that there was no decision of this High Court which has held that suits under Order 23 must be treated as having come into existence as on the date when the costs were paid. There is nothing in Order 23, Rule 1, itself which gives support to the position that costs ordered against the plaintiff, who is given permission to institute a fresh suit, must be paid before the second suit is filed. Under Order 23, Rule 1(2), where the Court is satisfied that there are sufficient grounds for allowing a plaintiff to institute a fresh suit, it may, on such terms that it thinks fit, grant the plaintiff permission to Withdraw from such suit, or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. It nowhere states that before the fresh suit is to be filed, costs awarded must be paid. “Costs” are within the scope of “such terms as the Court may think fit to impose”. If the Court directs that certain costs are to be paid before the second suit is instituted, no doubt, that is a direction with which the party must comply. But if the suit is instituted and the costs have not been paid in full, is it open to the defendant to ask or demand uncompromisingly that the second suit must, in any event, be dismissed and that the Court has no jurisdiction and no right to allow the costs to be paid by the plaintiff after the suit has been filed? The view I am inclined to take is that it would be open for a Court to permit these costs or any balance thereof to be deposited even after the second suit has been filed under section 148, Civil Procedure Code, by which where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by the Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. This is particularly so when the second suit is filed in the very Court in which the first suit was allowed to be withdrawn with liberty to file a second suit. The second suit having been dismissed on a strict adherence to legal technicality, I can see no reason to differ from the learned Subordinate Judge in the view that he has taken that the second suit, from a technical aspect, should be treated as non-existent in view of the costs ordered not having been paid before its institution and that the third suit was, in any event, filed quite correctly within time after the costs directed to be paid have been paid. I do not propose to traverse other Bombay decisions which the learned Subordinate Judge has referred to in his judgment. Subsequent to the pronouncement of this judgment up to this point, Mr. Balakrishnan himself, for the appellant, brings to my notice a decision against him of the Patna High Court in Syed Qazi v. Lachman1, which has taken the same view as I have taken, viz., that where a Court permits the ‘plaintiff to withdraw a suit under Order 23, rule 1, with liberty to bring a fresh suit, on payment of costs within a prescribed period, the Court has power under section 148 to extend the time. The learned advocate says that this decision only came to his notice while I was pronouncing judgment. I am obliged to him for bringing it to my notice now. This decision reinforces the view I have taken. The appeal is dismissed. There will be no order as to costs. R.M. ----- Appeal dismissed.