Wanchoo, C.J:— This is a second appeal by Madhosingh and Jatendra Singh against the order of the Civil and Additional Sessions Judge, Balotra, and has arisen in the following circumstances.
2. A suit was filed by the appellants for Rs. 3,100/- on the 23rd of July, 1946, in the court of the Judicial Superintendent, Malanee. The suit included two distinct claims based on two separate causes of action. There was an objection as to multifariousness. Thereupon the court ordered in May 1947 that the plaint should be amended, and allowed 14 days' time to do so.
3. In July 1947, the appellants filed two drafts of two plaints—one for Rs. 2,000/- and odd, and the other for Rs. 800/- and odd, separating the claims arising out of the two causes of action. The court again ordered the appellants to choose as to which case they wanted to remain in that court, and which they wanted to withdraw. The appellants applied on the 18th November, 1947, that they wanted to keep the suit for Rs. 2000/- and odd in that court, and wanted to withdraw the suit for Rs. 800/- and odd with permission to bring a fresh suit. Thereupon, on the 26th November, 1947, the appellants were allowed to withdraw their claim with respect to Rs. 800/- and odd with permission to bring a fresh suit in that connection. They then filed a fresh suit for Rs. 800/- and add in the court of the Hakim in December, 1947. In that case an objection was taken that the suit was time-barred. The appellants prayed for the benefit of sec. 14 of the Limitation Act. The courts below have, however, held that the benefit of sec. 14 cannot be granted to the appellants in view of the provisions of O. 23, r. 2 of the Code of Civil Procedure. Hence this second appeal.
4. The only question, therefore, that requires determination now is whether the appellants can be granted the benefit of sec. 14(1) of the Limitation Act, which provides that the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which, from defect of jurisdiction, or other cause of alike nature, is unable to entertain it.
5. Order 23, r. 2, on the other hand, specifically provides that where a plaintiff is permitted to withdraw the suit or abandon part of the claim with liberty to bring a fresh suit, the plaintiff shall be bound by the Law of Limitation in the same manner as if the first suit had not been instituted.
6. The courts below have held that O. 23, r. 2 C.P.C applies in this case with full force, and, therefore, the appellants cannot get the benefit of sec. 14(1) of the Limitation Act.
7. It is obvious that the benefit of sec. 14(1) of the Limitation Act can only be given where proceedings are terminated by a court on the ground that it is unable to entertain them for want of jurisdiction or other cause of a like nature. There must also be an order of the court to this effect. Order 23, r. 2, on the other hand, applies, where there is no order of the court terminating the proceedings, and the proceedings come to an end because a party wants to withdraw the suit or abandon part of the claim with permission to file a fresh suit. The High Courts are practically unanimous that sec. 14(1) has no application to a case to which O. 23, r. 2 applies. In this connection, reference may be made to Sadayatan Pande v. (Firm) Ham Chandra Gopal (A.I.R 1934 Alld. 688). The same view was taken in Kaliandas Balchand v. Muhammad Akbar Fatehali (A.I.R 1940 Sind, 125) and in Yalpi Virupakshappa v. Chowdireddi Veerabha Ira Gowd (A.I.R 1943 Madras, 80). The law is therefore settled that if a case is covered by O. 23, r. 2 C.P.C, sec. 14 of the Limitation Act has no application, and it only remains to see whether this case is covered by O. 23, r. 2 C.P.C
8. Learned counsel for the appellants submits that he made an application for withdrawal of part of the claim because of the order of the court, and therefore it must be held that the proceedings were terminated by an order of the court.
9. This argument is, in my opinion, untenable. It is true that the court did pass an order to the effect that the suit, as originally filed, was bad for multifariousness, and gave an opportunity to the appellants to amend the suit. It was open to them not to amend the original plaint, in which case, it would have been dismissed, and the proceedings would have terminated by an order of the Court. They could then file a fresh suit, and take their chance of getting the benefit of sec. 14 of the Limitation Act. They, however, preferred the other course, namely they amended the plaint and converted it into a plaint for the larger relief that is for Rs. 2000/- and odd. They, however, put in two drafts at the same time, and they were again asked to choose which draft they wanted to be substituted in the court and to withdraw the other part of the claim. They then said that they would carry on with the suit with respect to the larger sum and might be permitted to withdraw the claim with respect to the smaller sum with liberty to bring a fresh suit. Thereupon, the plaint was amended and they were allowed to withdraw part of the claim with liberty to bring a fresh suit. Then they filed a fresh suit in the proper court. Obviously, therefore, the case is covered by O. 23, r. 2 as the proceedings were not terminated by any order of the court, but came to an end because of an application by the appellants to withdraw part of the claim. The courts below were therefore right in holding that the appellants were not entitled to deduct the period during which the suit was pending in the court of the Judicial Superintendent at Malanee.
10. It may be mentioned that two alternatives are always open in such cases to the plaintiff. He may allow the suit to be terminated by an order of the court, in which case, he may take the risk of the later suit being thrown out if he does not get the benefit of sec. 14. He may on the other hand, abandon the smaller of the claims and carry on with the larger in the same court. In following this course, the plaintiff makes sure, at any rate, of a decree for a major part of the money, though he may lose the smaller. The plaintiffs in this case chose the latter course, and the suit was, therefore, rightly dismissed as time-barred by the courts below.
11. There is no force in this appeal, and it is hereby dismissed with costs to the defendants respondents.