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Bai Mahakore Vs. Bhikhabhai Sankalchand Shah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 84 of 1933
Judge
Reported inAIR1935Bom28; (1934)36BOMLR1110
AppellantBai Mahakore
RespondentBhikhabhai Sankalchand Shah
DispositionAppeal rejected
Excerpt:
civil procedure code (act v of 1908), order xxiii, rule 1, sub-rule(2), clause (b) - withdrawal of suit-sufficient grounds.;the language of clause (b) of sub-rule (2) of rule 1 of order xxiii, civil procedure code, 1908, is plain and it should not be construed ejusdem generis with clause (a) of that sub-rule. clause (6) is not limited to cases in which the court thinks that the suit must necessarily fail as in clause (a). there may be other sufficient grounds on which it may be proper to allow the plaintiff to withdraw his suit.;narandas raghunathdas v. shantilal bholabhai (1920) i.l.r. 45 bom. 377, 385 : s.c. 22 bom. l.r. 1012, approved. ;lala punjashet v. motiram budhu (1925) i.l.r. 50 bom. 192 : s.c. 28 bom. l.r. 440, not approved. - - the first point taken is that the learned..........clause (a) does not say that the court may give the leave where there is some formal defect in the suit. clause (a) says the court must be satisfied that a suit must fail by reason of some formal defect, and clause (b) omits any reference to a failure of the suit. it is to be noted also that that case is largely based on the case of kali prasanna sil v. panchanan nandi i.l.r. (1916) cal. 367, which has in fact been overruled by a later case of hriday nath roy v. ram chandra barna sarma i.l.r. (1920) cal. 138 although i agree with mr. thakor that the later case did not overrule the earlier one in respect of its construction of this particular rule. it is also to be observed that the views of mr. justice marten to which i have referred were not cited in lala punjashet's case. in my opinion.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an application in revision in which I am asked to interfere with an order made by the Joint Subordinate Judge of Ahmedabad in which he gave leave to the plaintiffs to withdraw the suit and to bring a fresh suit. The material facts are that the suit is brought by the plaintiffs as reversioners against the defendant as the widow of a deceased Hindu, and they ask for a declaration that the defendant had no right to alienate the property of her husband after her husband's death, and that the alienations which have been made are not binding on the plaintiffs as reversioners. On October 18, 1932, the plaintiff made an application for leave to amend the plaint by joining certain alienees from the widow, and that application was refused. Then on December 21,1932, the plaintiffs made an application to the lower Court for leave to withdraw the present suit with liberty to file a fresh suit. The reasons put forward were that they desired to make the alienees from the widow parties to that fresh suit, so that in substance they really wanted to bring a fresh suit in order to get over the difficulty that they had not been allowed to amend their existing suit by joining fresh parties, and the learned Judge made the order asked for. The first point taken is that the learned Judge's Order is without jurisdiction, as the case did not fall within Order XXIII, Rule 1, Sub-rule (2). That sub-rule provides that where the Court is satisfied:

(a) that a suit must fail by reason of some formal defect, or

(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim

It may grant the necessary permission. It is argued by Mr. Thakor that Sub-clause (6) of that rule must be construed ejusdem generis with Sub-clause (a), and for that he has cited a considerable amount of authority. The suggestion appears to have originated in a judgment of Mr.Justice Mukherjee in Kharda Co., Ltd. v. Durgacharan Chandra (1909) 11 C.L.J. 45, where he says the intention plainly is that the ground indicated in Clause (b) must be of the same nature as the ground specified in Clause (a). There have been a good many decisions, and one of this Court to which I will refer presently, in which that view has been adopted. To my mind the language of the rule is quite plain, and there is no scope for the introduction of the ejusdem generis rule. The Court must be satisfied either that the suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the order asked for. If the 'sufficient grounds' within Clause (b) are to be analogous to the grounds specified in Clause (a), it would seem that Clause (b) must be confined to cases in which the Court thinks that the suit must fail, and on that reading Clause (a) would deal with suits which must fail for some formal defect, and Clause (b) with suits which must fail for some defect which is not formal, but is of a similar nature. It seems to me that to : read the clause in that way is to ignore the plain language in which it is expressed. I have no doubt whatever that Clause ( b) is not limited to cases in which the Court thinks that the suit must necessarily fail. There may be other sufficient grounds on which it is proper to allow the plaintiff to withdraw his suit. No doubt the two clauses must be read together, and one has in Clause (a) an illustration of the sort of reason which the legislature thought would be sufficient, and in that way Clause (a ) may, to some extent, limit the generality of the words in Clause (b ), but I am not prepared to go further than that in limiting the very wide discretion which is conferred by Sub-clause (b). I observe that the view I take of the rule was also taken by Mr. Justice Marten, as he then was, in the case of Narandas Raghunathdas v. Shantilal Bholabhai I.L.R(1920) 45 Bom. 377 : 22 Bom. L.R. 1012. But Mr. Thakor has pressed upon me the decision of a Division Bench of this Court in Lala Punjashet v. Motiram Budhu I.L.R(1925) 50 Bom. 192 : S.C. 28 Bom. L.R. 440. The facts of that case are quite different from the facts of the present case, and the only question is whether I am bound by the reasoning in that case. Undoubtedly, Sir Norman Macleod, who delivered the judgment of the Court, did hold that the ' other sufficient grounds' referred to in Clause (b) of Sub-rule (2) of Rule 1 of Order XXIII ought to be read with a restrictive meaning so that such ground must be of the same nature as the grounds specified in Clause (a), that is to say, it must be of the same nature as a formal defect. I think the learned Chief Justice had not observed that Clause (a) does not say that the Court may give the leave where there is some formal defect in the suit. Clause (a) says the Court must be satisfied that a suit must fail by reason of some formal defect, and Clause (b) omits any reference to a failure of the suit. It is to be noted also that that case is largely based on the case of Kali Prasanna Sil v. Panchanan Nandi I.L.R. (1916) Cal. 367, which has in fact been overruled by a later case of Hriday Nath Roy v. Ram Chandra Barna Sarma I.L.R. (1920) Cal. 138 although I agree with Mr. Thakor that the later case did not overrule the earlier one in respect of its construction of this particular rule. It is also to be observed that the views of Mr. Justice Marten to which I have referred were not cited in Lala Punjashet's case. In my opinion the legislature, having conferred upon the Court in clear language a discretion under Order XXIII, Rule 1, I am not bound by the reasoning on which another decision is based which seeks to take away from the Court the discretion which the legislature has given. I am of opinion, therefore, that the mere fact that the order in this case was based on reasons which are not analogous to the suit failing for some formal defect is no reason for setting aside the order.

2. The question remains whether the reasons upon which the order of the learned Subordinate Judge was based were sufficient reasons within Order XXIII, Rule 1. I have been referred to a good many cases in which this Court and other High Courts have interfered in revision where the Court was not satisfied that the reasons relied on by the lower Court for making an order under Order XXIII, Rule 1, were sufficient. The Courts do not seem to have contented themselves with saying that if there were any grounds on which the reasons could be considered sufficient, then the I Court would decline to interfere in revision. I think the Courts have gone further than that, and have held that where the reasons were not in the opinion of the revising Court sufficient, the Court would interfere on the grounds that the order made by the lower Court involves a material irregularity within Section 115 of the Civil Procedure Code. I must confess that I am rather puzzled as to the grounds on which the learned Subordinate Judge acted, because his order refusing leave to amend by joining alienees from the widow necessarily assumes that the suit can proceed satisfactorily without those parties, and the whole object of withdrawing the suit and bringing a fresh suit was to enable the plaintiffs to introduce those parties. However, I must, I think, assume that the view which prevailed at the date of the later order was the final view which the learned Judge took, and that he thought it desirable that the alienees from the widow should be before the Court so that they might be bound. If he took that view I am not prepared to say that he was wrong and that the reasons for his order were insufficient. There is an issue as to whether a will under which the widow claims was forged or not. It may well be desirable that alienees from the widow should be before the Court so that they may be bound by any finding upon that issue. It seems to me that there is no sufficient ground here on which I can say that the reasons which induced the learned Judge to make the order are so plainly insufficient that I should interfere in revision and set aside the order. I must, therefore, reject the application with costs.


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