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Ramrao Bhagwantrao Inamdar Vs. Babu Appanna Samage - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 138 of 1939
Judge
Reported inAIR1940Bom121; (1940)42BOMLR143
AppellantRamrao Bhagwantrao Inamdar
RespondentBabu Appanna Samage
Excerpt:
.....code (act v of 1908), order xxiii, r. i-suit-withdrawal of suit -permission to file fresh suit-' formal defect '-' other sufficient grounds '- interpretation-ejusdem generis rule.;in order xxiii, rule 1, sub-rule (2), of the civil procedure code, 1908, clause (a) is illustrative of the ' grounds ' referred to in clause (b), and although the ' grounds ' need not be ejusdem generis with the ground mentioned in clause (a), they must be 'at least analogous' to it. the ground in clause (a) requires that the suit must fail by reason of some formal defect; whereas the grounds contemplated in clause (b) need not necessarily be fatal to the suit, but must be analogous to a formal defect.;the expression ' formal defect' in clause (a) must be given a wide and liberal meaning, and must be..........to the plaintiff, 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. 3. in the present case there was no formal defect fatal to the suit, and the permission for withdrawal was granted for a reason said to fall under clause (b). it is contended for the petitioners that ' other sufficient grounds ' mentioned in clause (b) must be ejusdem generis with the ground mentioned in clause (a). on the other hand it is urged for the opponents that there is no such limitation on the expression used in clause (b), and that the suit may be allowed to be withdrawn on any ground whatsoever, provided the court.....
Judgment:

Lokur, J.

1. This is an application in revision against the order of the Assistant Judge of Belgaum allowing the withdrawal of a suit with liberty to file a fresh suit. The original plaintiff, who died during the pendency of the suit, filed the suit in the Court of the Subordinate Judge of Chikodi for an injunction restraining the defendants from obstructing him in removing the trunk of the babul tree which he had cut down. He alleged that the tree stood on his land survey No. 128 |l of Badakatul and had been in his enjoyment for forty years. The land is bounded by a stream on its east and the defendants who are the inamdars of the village; contended that the tree was not standing on the plaintiff's land, but in the bed of the stream of which the flow had been wrongfully diverted by the plaintiff by artificial means. The plaintiff claimed that the said portion of the bed was an alluvion and as such was an accretion to his land, while the defendants contended that the new land in the bed of the stream was not an alluvion since it was formed as a result of the plaintiff's wrongful construction of a fencing in the bed of the stream, and that even if it were an alluvion, they, as the inamdars of the entire village, were entitled to it. The trial Court held that the new land was not an alluvion, that the plaintiff had wrongfully encroached upon the bed of the stream, of which the inamdars were the owners, and that the plaintiff could become entitled to it only by being in adverse possession thereof for the statutory period. The trial Court observed that adverse possession had not been specifically pleaded in the plaint, and that even if the plaintiff be allowed to prove his title by adverse possession, the evidence adduced was insufficient to hold it proved. The suit was, therefore, dismissed with costs, and in the appeal filed by the deceased plaintiff's sons, they applied for per mission to withdraw the suit with liberty to file a fresh suit, on the ground that ' the case of adverse possession and declaration was not embodied in the plaint', 'through oversight'. In spite of the respondents' objections, the application was granted and the suit was allowed to be withdrawn with liberty to file a fresh suit. The respondents (the original defendants) have now come in revision.

2. The question that arises in this case is whether the ground on which the withdrawal of the suit has been allowed is such as is contemplated by Order XXIII, Rule 1, Sub-rule (2), of the Civil Procedure Code, 1908. Under that sub-rule, withdrawal of a suit with liberty to institute a fresh suit in respect of the same subject-matter may be permitted to the plaintiff, 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.

3. In the present case there was no formal defect fatal to the suit, and the permission for withdrawal was granted for a reason said to fall under Clause (b). It is contended for the petitioners that ' other sufficient grounds ' mentioned in Clause (b) must be ejusdem generis with the ground mentioned in Clause (a). On the other hand it is urged for the opponents that there is no such limitation on the expression used in Clause (b), and that the suit may be allowed to be withdrawn on any ground whatsoever, provided the Court deems it to be sufficient. There is a sharp conflict of judicial opinion on this point, and it is necessary to go to the root of the principle and the history of the legislation on this subject.

4. In Clause (b) the nature of the 'grounds' which may be regarded as sufficient is not specified, and ordinarily general words in a statute, like all others, ought to be deemed to carry their full and natural meaning, and uncalled-for restrictions ought not to be imposed on their plain and ordinary meaning. An exception to this is, however, recognized in the accepted canon of interpretation that if a general word is preceded by particular and specific words of the same nature as itself, it takes its meaningfrom them, and is presumed to be restricted to the same genus as those words. But this doctrine of ejusdem generis is by no means of universal application, and should not be applied where there are adequate ground's to show that the natural and wider meaning is intended. To quote from Maxwell on the Interpretation of Statutes (eighth edition, page 293).

If it can be seen from a wider inspection of the scope of the legislation that the general words, notwithstanding that they follow particular words, are nevertheless to be construed generally, effect must be given to the intention of the Legislature as gathered from the larger survey.

5. In Kali Ram v. Dharmmi : AIR1934All214 and in Syed Sadeq Reza v. Asaj Kader Sayed : AIR1931Cal268 an unrestricted meaning was given to the words ' other sufficient grounds ' and Sub-rule (2) (b) was so interpreted as to give the Court authority to permit the withdrawal of a suit on any ground, which appeared to it to be sufficient, whether that ground was in the nature of a formal defect or not; but the earlier rulings to the contrary were not discussed in these two cases. In Kamusiwimi Pilled v. Jagathambal (1918) I.L.R. 41 Mad. 701 Sadasiva Ayyar J. differed fromthe earlier rulings in Aiya Koundm v. Jagan Mandaiathipathiar : (1914)27MLJ480 , Kharda Co., Ltd. v. Durga Charm Chandra 11 Cri.L.J. 45, and Mabullo Sardar v. Rani Hemangini Debi (1910) 11 Cri.L.J. 512, and expressed his opinion that there was nothing clearly indicated in the Section itself from which it could be inferred that the Legislature intended to allow withdrawal with permission only in the cases where the suit was bad by reason of a formal defect or something analogous to a formal defect. His opinion was, however, obiter, since the decision ultimately turned on the finding that the ground, whether analogous to a formal defect or not, was insufficient. The other Judge in that case, Oldfield J., expressly stated that he was not disposed to reconsider the principle referred to in Aiya Koundan v. Jagan Mandalathipathiar : (1914)27MLJ480 , and that it was not necessary to decide whether in that case the Court had jurisdiction to allow the withdrawal of the suit by the plaintiffs, since, even if it had, the plaintiffs had not been honest and deserved no consideration.

6. In the three cases referred to by Sadasiva Ayyar J. and also in Kali Prasama Sil v. Panckanan Nandi I.L.R. (1916) Cal. 367, it was held that the sufficient ground referred to in Clause (b) must be ejusdem generis with the defect referred to in Clause (a). In Buta Singh v. Hardit Singh AIR (1930) Lah. 175 this was taken as ' settled law.' In Jagmohm v. Ram Khilwan : AIR1929All683 Boys J. took the same view and observed that ' any other sufficient ground ' must be ejusdem generis with a formal defect. The Oudh Court also has taken the same view in Tikai Chobay v. Firm Sheo Dayal and Ramji Das I.L.R. (1927) Luck. 403. Several other rulings to the same effect were cited at the bar, but a review of them shows that the decision in each case depended mostly on its own facts, and the grounds were in fact insufficient, but the doctrine of ejusdem generis was resorted to in order that it might be held that the permission granted was ultra vires, and therefore liable to be interfered with in revision. As already stated, the application of the doctrine must depend upon ' the intention of the Legislature as gathered from the larger survey ' of the scope of the legislation.

7. Before the Code of Civil Procedure was enacted in 1859, suits were allowed to be withdrawn on certain recognized grounds, such as those mentioned in the leading case of Robert Watson & Co. v. Collector of Zillah Rajshahye (1869) 13 M.I.A. 160. In that case their Lordships of the Privy Council laid down in effect that there was no power in the Courts in India, similar to that exercised by Courts of Equity or Common Law in England, to dismiss a suit with liberty for the plaintiff to bring a fresh suit for the same matter, or to enter a non-suit, and that such power of Indian Courts was limited to questions of form, as in the case (1) of misjoinder of parties, or of the matters in suit, (2) where a material document had been rejected for not having a proper stamp, and (3) if there had been an erroneous valuation of the subject-matter of the suit. Their Lordships proceeded to observe (p. 170) :-

In all those cases the suit fails by reason of some point of form, but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit, ....

8. Although the suit with which their Lordships were dealing was of the year 1856, their decision was pronounced in 1869. In the interval the Civil Procedure Code of 1859 was passed, and Section 97 of that Code empowered the Court to allow the withdrawal of a suit with liberty to file a fresh suit for the same matter, if the plaintiff at any time before final judgment satisfied the Court that there were ' sufficient grounds ' for permitting him to withdraw. The Section contained no words corresponding to those in Clause (a) of Order XXIII, Rule 1, Sub-rule (2), of the present Code, and Courts began to make very free use of the power given to them, regardless of the nature of the grounds. In Joy Kishen Mookerjee v. Raj Kishen Mookerjee (1871) 16 W.R. (Civil) 101 it was held that permission under Section 97 could be granted where the plaintiff stated that it would be out of his power to adduce evidence existing in certain records, within the period fixed by the Court for hearing the case. The suit was allowed to be withdrawn by the appellate Court on a similar ground in Mussamut Khatom Koonwar v. Baboo Hurdcot Narain Singh (1873) 20 W. R. 163. Phear J. observed (p. 163) :-.instead of passing a final decree against him [plaintiff] now on the ground of there being no evidence to support his case, it is right in the interest of justice to allow him to withdraw his suit with permission to bring a fresh suit to enforce his claim against the defendants.

9. This case was decided in 1873 and the decision was clearly opposed to the principle laid down by the Privy Council in Watson's case, but Section 97 of the Code was regarded as not recognizing that principle. But next year in Muddun Ram Doss v. Israil Ali Chowdhry (1874) 21 W. R. 291, under similar circumstances Kemp J. followed Watson's case and held that the plaintiff could not be permitted to withdraw with liberty to bring a fresh suit, after issues had been joined, and he had failed to produce evidence to support his claim.

10. In view of this conflict of decisions, the words as to the suit failing by reason of some formal defect were first added in the corresponding Section 373 of the Civil Procedure Code of 1877, and the same wording was retained in the 'Code of 1882.

11. In Mahipati v. Nathu I.L.R. (1909) 33 Bom. 722 : s.c. 11 Bom. L.R. 1109 Scott C.J. thought that this change was introduced to abrogate the view taken by Kemp J. of the Bengal High Court in Muddun Ram Doss's case, just cited. He observed (p. 726) :-

The words of the Code of 1882 are different from the words construed in that case by Mr. Justice Kemp, for, the Court is authorized to; permit withdrawal not only where the suit must fail by reason of some formal defect but also where there are sufficient grounds for permitting the plaintiff to withdraw.

12. With great deference we think that this view misinterprets the purpose of the addition of Clause (a). If sufficiency was to be the only test of the grounds on which the withdrawal of a suit could be permitted, then the words in Clause (a) would be superfluous. It is a well-recognized canon of construction that a statute ought to be so construed that, if it can be prevented, no clause, Section or word shall be ' superfluous, void or insignificant' [The Queen v. Bishop of Oxford (1879) 4 Q. B. D. 245]. The obvious object of the addition was to give effect to the ruling of the Privy Council and not to override it as the earlier rulings referred to above thought Section 97 of the Code of 1859 did. Although the expression ' sufficient grounds ' necessarily included the ground that a suit must fail by reason of some formal defect, the latter was specifically mentioned in Clause (a) by way of an illustration. The fact that it is mentioned in a separate clause by itself does not indicate that it absolutely restricts the following clause, but it provides an illustration of the grounds to be considered sufficient in a general way. The ' grounds', though not eijusdem generis with the ground mentioned in Clause (a), must at least be analogous to it. In the Code of 1908, the only change made in the wording of Clause (b) was the addition of ' other ' before the words ' sufficient grounds '. In Burath-gttnta Pentadee v. Kurla Patti Rajamma [1911] 1 M. W. N. 105 the addition of the word ' other ' was held to suggest that the 'sufficient grounds' must be ejusdem generis with the ' formal defects ' under Clause (a). This view was accepted by Beasley J. in Naimathulla v. Abdul Razack (1). With respect, we do not think the word ' other ' suggests anything of the kind. It simply means ' other than ' the ground mentioned in Clause (a). By way of analogy, it may be pointed out that in Chhajju Ram v. Neki (2) their Lordships of the Privy Council interpreted the words ' any other sufficient reason ' appearing in Order XLVII, Rule 1, of the Civil Procedure Code, 1908, as meaning ' a reason sufficient on grounds at least analogous to those specified immediately previously ', and that interpretation is binding upon us.

13. In our opinion there is a distinct difference between the Latin phrase ' ejusdem generis' and the words ' at least analogous,' the former being more restrictive than the latter. On the principle of ejusdem generis, the meaning of a general word is wholly restricted to the same genus to which the preceding word or words belong. The expression means 'of the same kind', whereas ' analogous', according to Chambers's Twentieth Century Dictionary, means ' bearing some correspondence with or resemblance to; similar in certain circumstances, or relations'.

14. When this distinction is borne in mind, it is easy to reconcile the seemingly conflicting decisions of our High Court. In Bai Kashibm v. Shidapa Annapta (3) the question of interpretation did not arise, since it was held on merits that failure to produce documents was not a sufficient ground for the withdrawal of the suit with liberty to file a fresh suit.

15. In Narmdas Raghunathdas v. Shmtilal Bholabhai (4) Marten J. made certain obiter dicta admittedly not required for the disposal of that case, expressing his dissent from the ruling in Kali Prasmna Sil v. Panchanm Nandi (5) which had held that cls. (a) and (b) of Sub-rule (2) must be read together and that 'other sufficient grounds' in d. (b) must be ejusdem generis with ' some formal defect' in Clause (a). He did not, however, mean to lay down any definite ruling, but casually observed (p. 385) :-

I am very reluctant, speaking for myself, to fetter what appears to me to be the plain words of the Act, and although it may be that one has to read Sub-Section s (a) and (b) together I am as at present advised by no means satisfied that the ejusdem generris rule applies.

16. In other words, though in his opinion the ejusdem generis rule does not apply, cls. (a) and (b) have to be read together, that is to say, Clause (a) is illustrative of the 'grounds' mentioned in Clause (b).

17. In Lala Punjashet v. Motiram Budhu I.L.R. (1925) 50 Bom. 192 : 28 Bom. L.R. 440, although Macleod C.J. says that he agrees with the construction put upon Order XXIII, Rule 1, by the decision in Kali Prasmna Sil v. Pmchanan Nandi I.L.R. (1916) 44 Cal. 367, he does not go so far as to say that the doctrine of ejusdem generis should be applied. Following Chhajju Ram's case he held that the sufficient ground mentioned in Clause (b) should be ' analogous to a formal defect.'

18. In the more recent case of Bed Mahakax v. BhikhabJuti Sankcdchand I.L.R. (1934) 59 Bom. 114 : 36 Bom. L.R. 1110, the learned Chief Justice has fully discussed both these cases, and has expressed his agreement with the view taken by Marten J. in Ntmandas Raghu-nathdas v. Shantilal Bholabhai I.L.R. (1920) 45 Bom. 377 : 22 Bom. L.R. 1012 As regards the application of the ejusdem generis, rule, he says (p. 117) :-

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.

19. The learned Chief Justice, however, has added that ' the two clauses must be read together' and one has in Clause (a) an illustration of the sort if 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).

20. With great respect, we concur in this view, which is exactly what we mean by saying that Clause (a) is illustrative of the 'grounds' referred to in Clause (b), and although the 'grounds' need not be ejusdem generis with the ground mentioned in Clause (a), they must be ' at least analogous' to it. The ground in Clause (a) requires that the suit must fail by reason of some formal defect; whereas the grounds contemplated in Clause (b) need not necessarily be fatal to the suit, but must be analogous to a formal defect.

21. To determine what grounds are analogous to formal defects, it is necessary to know what defects are to be deemed ' formal'. The instances of defects ' of form' cited by the Privy Council in Robert Watson & Co. v. The Collector of Zillah Rajshahye (1869) 13 M. I.A. 161 includes misjoinder of parties or of the matters in suit, rejection of a material document for not having a proper stamp and the erroneous valuation of the subject-matter of the suit. This shows that the expression ' formal defect' must be given a wide and liberal meaning, and must be deemed to connote every kind of defect which does not affect the merits of the case, whether that defect be fatal to the suit or not.

22. Applying this test to the facts of the present case, it is evident that the ground on which the opponents are allowed to withdraw the suit, is a defect of substance, as distinguished from a defect of form. They prayed for an injunction on the basis of their being the owners of the site which they claimed to be an accretion to their land as an alluvion. They adduced all their evidence and failed to prove that the site was an alluvion. Their suit was dismissed. Then they wanted in appeal to be permitted to withdraw the suit in order to file another suit claiming title to the said site on the ground of their adverse possession for over twelve years. There was no defect of form in the suit, but a defect of substance, arising out of their inability to prove the title on which they had based their claim. They joined issues with the petitioners on that basis, and allowed the suit to be fully tried to the end. It was only when they found that the trial Court did not uphold their title as claimed by them that they sought to withdraw the suit in order to start the litigation afresh and ask for the same relief on a different basis. In allowing the suit to be withdrawn on this ground, the Assistant Judge acted without jurisdiction, and his order can be corrected in revision under Section 115 of the Civil Procedure Code as was done in Bhikaji v. Anant (1928) 31 Bom. L.R. 613. It is urged that the Assistant Judge, in the exercise of his discretion, has held the ground alleged by the plaintiffs for withdrawing the suit to be sufficient, and his discretion cannot be interfered with in revision. It was so held in Ishar Das v. Aya Ram I.L.R. (1931) Lah. 537, but in the present case there being no such ground as is contemplated by Clause (b) of Sub-rule (2), the question whether it was sufficient did not arise, and in considering that question and holding the ground to be sufficient, the learned Assistant Judge exercised a jurisdiction which did not vest in him under the sub-rule. His order must, therefore, be set aside and the appeal heard and disposed of on its merits, as if the suit has not been withdrawn.

23. The rule is made absolute. The order allowing the plaintiffs to withdraw the suit is reversed and their application for permission to withdraw the suit is rejected. The appeal is remanded for being heard and disposed of according to law. The opponents shall pay the1 petitioners' costs and bear their own.


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