Norman Macleod, Kt., C.J.
1. This is an application under Section 115 of the Code, asking the Court to revise an order passed by the Second Class Subordinate Judge of Nandurbar in Suit No. 132 of 1923. After several adjournments, the hearing was fixed for December 15, 1924, on which date the plaintiff-opponent presented an application to withdraw the suit with liberty to bring a fresh suit on the grounds that the plaint was not explicit; that the averments about fraud were not clear, and that there was no explicit assertion that the sale deed was in the nature of a mortgage; that though there was a prayer for accounts and instalments, proper stamp had not been paid and there was no issue about mortgage; and that, therefore, the suit was likely to be dismissed because the pleadings were vague and insufficient.
2. The applicants-defendants raised several objections to the withdrawal of the suit being allowed, viz., the plaintiff had already once amended the plaint but never claimed redemption that though the plaintiff had alleged before the Mamlatdar that the sale was a mortgage, he had in the suit averred only fraud that several adjournments had already been granted to the plaintiff; that the hearing had actually commenced, documents had been produced by the defendants and one witness had alredy been examined for the defendants; that the plaintiff's suit was not going to fail on a technical point; that the suit had been filed on April 7, 1923, more than a year before the application, but in spite of defendants' objection the Court allowed plaintiff to withdraw the suit with liberty to bring a fresh suit.
3. Under Order XXIII, Rule 1(2), 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, on such terms as 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.
4. The question is whether the words 'other sufficient grounds' give the Court a wide discretion to decide whether it should give permission to a plaintiff to withdraw from his suit, or whether those words must be read with a restrictive meaning, so that any other ground set forward by a plaintiff must be analogous to a formal defect, before the Court can give the plaintiff leave to withdraw.
5. In Kali Prasanna Sil v. Panchanan Nandi I.L.R.(1916) Cal. 367 Sanderson C.J. referring to the words, viz , ' that there are sufficient grounds for permitting him to withdraw from the suit 'in Section 373 of the Code of 1882, which was the section applicable to the case before the Court, said (p 372):-
But there are decisions of this Court which, in my opinion, are binding upon us. It is quite true they are not upon the same section, but they are upon Order XXIII, Rule 1 of the Civil Procedure Code which is now in operation, but the learned Vakil, who argued the case for the appellant, admitted that there is no substantial difference between this Rule and Section 373 of the old Code. In the first case, Khirda Co. Ld. v. Durga Charan Chandra (1810) 11 Cri.L.J. 5I2 it was held by my learned brother Mr. Justice Mookerjee that Clauses (a) and (b) of Sub-rule (3) have to be read together and that the intention is that a ground included in Clause (6) must be of the same nature as the ground specified in Clause (a), that is to say, it must be something of the same nature as formal defect, and, inasmuch as in that case the grouud for allowing the suit to be started afresh was not because there was a formal defect but for some other reason, the order was illegal Then again the learned Chief Justice Sir Lawrence Jenkins in Mabul's Sardar v. Rani Hemangini Debt (1909) 11 Cri.L.J. 45 says: 'The decision in Kharda Co. Ld. v. Durga Charan Chandra shows that Clause (6) of Sub-rule (2) must be read in connection with Clause (a) and with the limitations Clause (a) suggests, and so reading it, it is clear that it is not within the jurisdiction of a Court of Appeal to grant the permission on the terms which have been approved by the Court in this case.
6. With due respect, we agree that the construction put upon Order XXIII, Rule 1, by these decisions is correct. It is certainly undesirable that so wide a construction should be placed on Order XXIII, Rule 1, that a plaintiff, if he thinks that he is not likely to succeed in his suit owing to insufficient evidence, or for some other reason of that character, may be allowed to withdraw his suit, with leave to bring another suit, thus leaving the question in dispute still open between himself and his opponent, In Mahipati v. Nathv I.L.R. (1909) 33 Bom. 122. Scott, C.J. says (p. 726):-
It is impossible to lay down any exhaustive definition of what are sufficient grounds within the meaning of Section 373 but I think that the Court should not allow a suit to be withdrawn after the parties are ready for trial if such withdrawal may operate to the prejudice of the defendant.
7. With due respect, that leaves open the door to a considerable amount of discussion whether in any particular case the defendant would or would not be injured by the leave being given. It seems to me far more advisable to places restrictive meaning on the words ' other sufficient grounds,' since Order XXIII, Rule 1, grants a concession in favour of a plaintiff, and such a concession should not be extended further than is necessary.
8. We may also refer to Order XLVII, Rule 1, which deals with the powers of a Court to grant a review of a decree or order, since the similar phrase ' or for any other sufficient reason ' appearing therein has by the Privy Council been construed in Chhajju Ram v. Neki to mean that a reason sufficient on grounds at least analogous to those, specified in the rule must be shown.
9. The rule will be made absolute in this case and the order of the lower Court set aside with costs.
10. I agree.