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Basappa Tippanna Durgannavar Vs. Bhimappa Ramappa Durgannavar - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1258 of 1967
Judge
Reported inAIR1969Kant141; AIR1969Mys141; ILR1968KAR1003; (1968)2MysLJ355
ActsCode of Civil Procedure (CPC), 1859 - Sections 97; Code of Civil Procedure (CPC) (Amendment) Act, 1908 - Sections 115 - Order 23, Rule 1 and 1(2) - Order 21, Rule 1(2) - Order 47, Rule 1
AppellantBasappa Tippanna Durgannavar
RespondentBhimappa Ramappa Durgannavar
Excerpt:
- karnataka stamp act, 1957.[k.a. no. 34/1957]. section 2(e) & 2 (mn): [h.v.g. ramesh, j] duly stamped & market value held, when the words duly stamped and market value are clearly explained in the act and based on that if the registering authority comes to a conclusion as to what would be the proper market value and accordingly insists on the party to make such payment and on such payment, registers the document, the same would not in any way come in the way of the right of the party much less it can be treated as it is in violation of the provisions of the registration act . on facts, held, after amendment of section 45a and section 45b, the stand taken by the respondent authorities insisting upon the petitioners to deposit the amount as per the market value cannot be found fault.....order1. this revision petition is directed against an order made on 7-8-1967 in civil suit no. 57 of 1964 on the file of the learned munsiff of madhol, permitting the plaintiffs therein to withdraw from the suit with liberty to file a fresh suit under order 23 rule 1(2)(b) c.p.c.2. the few facts relevant for the disposal of this petition are as follows: the respondents in this revision were the plaintiffs in civil suit no. 57 of 1964 on the file of the learned munsiff at madhol. they sued the defendant (the revision petitioner) for mere recovery of possession of property bearing r. s. no. 108 at junnur village of madhol taluk, with costs and mesne profits. in the suit the prayer was confined to one revenue survey number specified above.3. after the pleadings were completed and the suit.....
Judgment:
ORDER

1. This revision petition is directed against an order made on 7-8-1967 in Civil Suit No. 57 of 1964 on the file of the learned Munsiff of Madhol, permitting the plaintiffs therein to withdraw from the suit with liberty to file a fresh suit under Order 23 Rule 1(2)(b) C.P.C.

2. The few facts relevant for the disposal of this petition are as follows: The respondents in this revision were the plaintiffs in Civil Suit No. 57 of 1964 on the file of the learned Munsiff at Madhol. They sued the defendant (the revision petitioner) for mere recovery of possession of property bearing R. S. No. 108 at Junnur village of Madhol Taluk, with costs and mesne profits. In the suit the prayer was confined to one Revenue Survey number specified above.

3. After the pleadings were completed and the suit was posted for evidence, the plaintiffs filed Ex. 76 under O. 23 R. 1 C.P.C. praying for permission to withdraw from the suit and liberty to file a fresh suit. The ground stated therein is that the first plaintiff was a minor on the date of death of his father and that he was unaware of the real nature of the family properties. It is also stated that the suit related to Walikarki inam land, which was in the possession and enjoyment of his late father. It is further averred by him that he could not instruct his counsel properly in respect of his suit properties and as to the nature of his right therein. According to the plaint in C. S. No. 57/64, the defendant, who is the uncle of the first plaintiff, fraudulently took possession of the inam land in question and secured a mutation of the entries in the Record of Rights on a misrepresentation that he was entitled to succeed to the late holder of the inam land, while the first plaintiff was the real heir entitled to succeed both to the office and the land. It may not be out of place to refer to the second suit filed by the plaintiffs soon after permission for withdrawal of the suit was accorded to the plaintiffs, a copy of the plaint in which has been made available by Sri H. F. M. Reddy, the learned counsel appearing on behalf of the petitioner. The said suit came to be registered as Civil Suit No. 45 of 1965. It is seen from the plaint in C. S. No. 45 of 1965 that the suit is for partition and possession of not only R. S. No. 108, which was the sole subject matter of the earlier suit, but also several other items of properties, both moveable and immovable.

4. The first order permitting the withdrawal from the suit was made on 1-4-1965 and it was challenged before this Court in C. R. P. No. 969 of 1965. The said revision petition was allowed on 6th March 1967, principally on the ground that the order had not been made after hearing the defendant. Thus the matter stood remitted to the trial Court once again and the present impugned order came to be passed there-in after giving an opportunity to all the parties concerned. The learned Munsiff came to the conclusion that although the application of the plaintiffs for withdrawal did not clearly disclose a formal defect which might result in a failure of the suit, the case clearly fell under clause (b) of sub-rule (2) of rule 1 of Order 21 CPC. Therefore, in his view, the requirement regarding the failure of a suit on account of a formal defect was not condition precedent for the exercise of his jurisdiction under C1. (b) of that rule. He, therefore, allowed the application and permitted the withdrawal from the suit with liberty to file a fresh suit. Aggrieved by this order, the defendant has approached this Court once again with the present petition.

5. Sri H. F. M. Reddy, the learned Counsel appearing on behalf of the petitioner, urges the following tow contentions that:

1. The application Ex. 26 made under Order 23. Rule 1 CPC, does not disclose on the fact of it, any defect, formal or otherwise, and therefore the exercise of discretion in favour of granting permission sought amounts to material irregularity in the exercise of jurisdiction calling for interference under section 115 C.P.C.

2. The condition precedent for the exercise of jurisdiction under Order 23, Rule 1(2)(b) C.P.C. is the existence of 'sufficient grounds' analogous to a 'formal defect' dealt with under clause (a) of that Rule. Hence, in the absence of that condition precedent, permission sought for by the plaintiffs ought to have been granted.

6. At this stage, it is convenient to dispose of the first of the above contentions of Sri Reddy. It is no doubt true that in the application seeking for the withdrawal from the suit, the nature of the defects in C. S. No. 57 of 1964 have not been particularised in any manner. All is stated therein is that the first plaintiff was entitled to inherit the properties from his late father, and being illiterate, and a minor of 3 or 4 years of age at the time of the death of his father, could not properly instruct his Counsel, during the preparation of the plaint. He also did not know the true nature of the family properties. It is further averred that the suit did not comprise of all the family properties and therefore it was necessary to institute a fresh suit in respect of all of them.

But, as observed earlier, in the statement of facts Sri Reddy, the learned Counsel has produced copies of two plaints in C. S. Nos. 57/64 and 45 of 1965. On a comparison of these two plaints it would be apparent that the suits are substantially different in character. The first of these suits is for the relief of possession and mesne profits in respect of one of the items of the properties only, whereas it is seen from the plaint in the second suit, that it is one for partition and possession in respect of several items of immoveables, in addition to the moveables. It is further to be seen that the first suit was particularly based on his right to inherit the inam land attached to the Walikarki service, in respect of which his late father was the holder. The cause of action was stated to be that as the sole defendant therein had misrepresented before the Authorities and secured possession of that property. In the latter suit the averment on behalf of the plaintiffs is that the defendant was in possession and enjoyment of the family properties including the inam land as 'Kartha' and manager and as such he would be entitled to claim partition. It is to be observed that reference to these pleadings has become necessary owing to the fact that the petitioner himself has produced these documents and strongly relies on them in support of his case.

7. In the light of these pleadings, if the application filed and the Order made therein by the learned Munsiff are read together, it would be clear that it would not have been easy for the plaintiffs to amend their plaint so as to include the prayer for partition of several properties which are said to belong to the joint family of themselves and to the defendant. Any attempt to amend the plaint in that regard would have been met with the objection that it would totally change the nature of the suit. In any event, it would be a matter for doubt whether the plaintiffs would have succeeded in obtaining the necessary permission to amend the plaint. If the real cause of action is as stated in the second plaint (C. S. No. 45/65) it is reasonable to infer that the first suit would have failed on account of these defects. But the question is whether these defects are formal defects or defects analogous to formal defects as contemplated under Order 23 Rule 1, C.P.C.

This is the test that should be applied, if the contention of Sri Reddy on the interpretation of Clause (b) of sub-rule (2) of Rule 1 of Order 23 C.P.C., is well founded. If the interpretation sought to be placed on the relevant Rule by Sri Reddy is to be accepted, the petitioner would be entitled to succeed and this revision petition has to be allowed. At the same time, it is not disputed by Sri Reddy that if the interpretation to be placed on the words 'other sufficient grounds' found in clause (b) of sub-rule (2) of Rule 1, Order 23 C.P.C. is that the grounds referred to therein are those other than 'formal defects', or defects analogous to formal defects, the impugned Order is not liable to be disturbed.

8. I shall now proceed to deal with the second of these contentions.

9. For the purpose of the decision of this question, it would be necessary to set out the relevant portions of O. 23, Rule 1(2) C.P.C. which read thus:

'1. Withdrawal of suit or abandonment of part of claim:

(1) ** ** **

(2) Where the Court is satisfied--

(a) that a suit must fall 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 a 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.

10. Sri H. F. M. Reddy, in elaboration of his second point, submits that the words 'other sufficient grounds' appearing in clause (b) of sub-rule (2) of Rule 1 of Order 21 C.P.C. should be read ejusdem generics with the thing indicated by the words appearing in C1. (a) sub-rule (2) of that Rule, or at any rate, 'grounds' referred to should be analogous to the 'formal defects' referred to earlier in the sub-rule. According to him, 'grounds' should not be something independent of a formal defect or defect analogous to such a formal defect. In support of his submission, he relied on several decisions the principal ones of which are these reported in 42 Bom LR 143 : (AIR 1940 Bom 121) (FB) and AIR 1951 845 (FB). I shall deal with these cases and others briefly at a later stage, after adverting to the arguments urged on behalf of the respondents.

11. The contention of Sri T. J. Chouta, the learned Counsel appearing on behalf of the respondents plaintiffs, is that Clauses (a) and (b) of sub-rule (2) of Rule 1 of Order 23 C.P.C. should be read independently of each other. So read, there would not be any scope for the application of the principle of ejusdem generics or any other doctrine relating to the interpretation of words when used in association with some other words. To put it simply, his contention is that the meaning to be assigned to the words 'other sufficient grounds' occurring in clause (b) of that Rule would not take colour from the meaning to be given to the words 'formal defect' occurring in Clause (a), it is, therefore, his contention that the words 'other sufficient grounds' would mean in the context any ground which in the opinion of the Court is sufficient to warrant the grant of permission for withdrawal under O. 23, R. I, C.P.C., and if need not necessarily be a ground referable to a 'formal defect' found in Clause (a) of that Rule. In support of this submission, he relied on a number of decisions, particularly those reported in : AIR1956Ori77 , : AIR1957Mad207 and AIR 1964 J & K 18.

12. I shall now proceed to deal with these cases briefly, Sir H. F. M. Reddy, the learned Counsel for the petitioner, referred to three decisions reported in : AIR1934Cal59 and AIR 1953 Bhopal 32, in addition to the two Full Bench Rulings referred to earlier. In my view it is unnecessary to deal with these cases further as the rule in question has not been interpreted in those decisions. Moreover, it seems to me that they are decisions on facts of those cases.

13. In 42 Bom LR 143 : (AIR 1940 Bom 121) (FB) Ramrao Bhagwantrao Inamdar v. Babu Appanna Samage, a Full Bench of the High Court of Bombay was called upon to consider whether the words 'other sufficient grounds' mentioned Clause (b) of sub-rule (2) of Rule 1 of Order 23 C.P.C. must be read ejusdem generics with the ground mentioned Clause (a) of that Rule. The learned Judges, after a consideration of several decisions on the subject and in the light of the judicial and legislative history of the Rule, came to the conclusion that although the 'grounds' need not be ejusdem generics with the ground mentioned in clause (a) they must be at least 'analogous' to it. The difference between the two grounds is that 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. In referring to the legislative history, the learned Judges referred to a decision of the Judicial Committee of the Privy Council reported in (1869-70) 13 M. I. A. 160, (PC) Robert Watson & Co. v. Collector of Zillah Rajshahye

In the said Privy Council case, the suit was of the year 1856, prior to the enactment of the Code of Civil Procedure 1859. The decision of the Privy Council was rendered in 1869. According to Section 97 of the Code of 1859, the Court was empowered to allow the withdrawal of a suit with liberty to file a fresh suit for the same subject matter of claim if the plaintiff at any time before final judgment satisfied the Court that there were sufficient grounds for permitting him to withdraw. While referring to section 373 of the Codes of Civil Procedure, 1877 and 1882, the Full Bench made the following observation at page 158 (of Bom LR) : (at p. 124 of AIR):

'...... 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 though section 97 of the Code of 1859 did.....'

14. As regards the interpretation placed on the words 'sufficient grounds' it is observed as follows at page 158 (of Bom LR) : (at p. 12 of AIR) of the same report:

'......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 to be considered sufficient in a general way. The 'grounds' though not ejusdem generics 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'.

15. After holding as above, as to what grounds would be analogous to formal defects, it is observed in the same judgment at page 160 (of Bom LR) : (at p. 125 of AIR) as follows placing reliance on the decision reported in (1869-70) 13 M. I. A. 160 (PC).

'... The instances of defects 'of form' cited by the Privy Council in (1869-70) 13 M I A 160 (PC) include 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.'

16. It is necessary at this stage to refer briefly to the case reported in (1869-70) 13 MIA 160 (PC). The facts of that case were that in suit brought to set aside the sale of a Putnee Talook, an order of dismissal was made with a reservation in favour of the plaintiff that the Order made would not be a bar to the plaintiff or any other persons, who might substantiate their rights, from proceeding to recover. The said order was confirmed in appeal before the High Court. Subsequently a fresh suit was brought by the same parties in regard to the same matter. In the course of the second suit, a question arose whether the reservation made in favour of the plaintiff in the same earlier suit was of no effect in the context of a plea of res judicata raised by the defendants in the later suit. In the course of the judgment, their Lordships referred to the proceeding, in Indian Courts technically known as 'non suit'.

It was in that context the Privy Council observed thus in (1869-70) 13 MIA 160 at page 170 (PC):

'......There is a proceeding in those Courts (Courts of India) called a 'non suit', which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of misjoinder either of parties or of the matters in contest in the suit; to cases in which a material document has been reflected because it has not borne the proper stamp, and to cases in which there has been an erroneous valuation of the subject-matter of the suit In all those cases the suit falls 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, except in the particular instance that is now before them.

17. What is also significant from the above Privy Council case is that it was not interpreting section 97 of the Code of 1859. The reference therein was with regard to powers of Courts of Equity in England and proceeding in Indian Courts at the relevant time. It was in these circumstances that, by way of illustration, they referred to certain defects of a formal character which would enable a plaintiff to withdraw from a suit.

18. It is to be noted that Section 97 of the Code of 1859 was couched in language which seemed to confer a very wide discretion on Courts in the matter of withdrawal of suits by plaintiffs. Judicial decisions, having due regard to the general principles of law such as avoidance of harassment and multiplicity of proceedings, seemed to restrict the scope of that section in practice. It is especially relevant to observe that in Section 97 of the Code of 1859 there was no reference to formal defect or condition relating to failure of suit, which was envisaged for the first time in section 373 of the Code of 1877, and, re-enacted in the Codes of 1882 and 1908. In view of the fact that the latter Codes were enacted subsequent to the Privy Council case of Watson & Co. (13 M. I. A. 160) it seems to have been concluded that the reference to 'formal defect' and the condition regarding failure of suit were intended to restrict the wide scope of Section 97 of the Code of 1859.

19. In my view from this background it cannot be inferred with any degree of certainty that what the Legislature intended by enacting section 373 of Code of 1877 and the subsequent Code was only to make provision for 'formal defects' and those analogous to it. The effect of such an interpretation is to almost totally efface the legislative intention as expressed in the earlier Section 97, which conferred a very wide discretion on Courts in regard to permission for withdrawal from suits by plaintiffs. Such a serious change as regards the intention of the Legislation is not to be readily inferred, unless there is something in the language of the statute which warrants it. In my view, such a result can be avoided if the words in clause (a) of Order 23 Rule 1(2) can be possibly read as making additional provision in the light of the principles set out in the Privy Council case in point and as illustrative of the defects followed by general words of the same nature as in clause (b). If the intention of the Legislature was to merely illustrate the defects, it would have been easier for it to have enacted them in one clause as in the case of Order 47 Rule 1 C.P.C. It is also not apparent as to how the mere use of the words 'formal defects' it illustrative of any class of defects, without a further explanation that they are relatable at least to the class of defects illustrated in the Privy Council case of Watson & Co., (1869-70) 13 MIA 160. I do not, therefore, feel persuaded to hold that the 'formal defects' in clause (a) are referable to only those specified by the Privy Council in the case of Watson & Co., (1869-70) 13 MIA 160. It is also to be seen that the defects enumerated in that case refer to misjoinder or non-joiner of parties. In such a case, having regard to Order 1, Rule 9 of C.P.C. the chance of a failure of a suit on that ground is remote, if not possible. From this it follows that even the defects enumerated in the Privy Council case are merely illustrative of 'formal defects' and those words occurring in the rule in question must be given a very liberal meaning thus embracing within it all defects of a formal character. That such is the case is to be seen from the Bombay Full Bench case in question. But once this position is reached. I fail to see how those words do not cover cases of 'defects' analogous to 'formal defects'. It follows, therefore, that the need or necessity for enacting clause (b) it was intended only to provide for 'defects' analogous for 'formal defects', disappears. In other words, it would appear that clause (b) is redundant. Such redundancy ought not to be readily attributed to the Legislature. I am, therefore, of the opinion that the legislative intent was to widen the grounds rather than limit the grounds to 'formal defects' and those analogous to it.

20. In my humble view, therefore, and with all respect to the learned Judges constituting the Bench. I am not persuaded to accept the interpretation placed on the rule in the Full Bench case of the Bombay High Court, which was strongly relied by Sr. H. F. M. Reddy.

21. It remains for me to consider one other aspect of the matter. It was contended, and held in several of the decisions cited, that though the principle of interpretation of statutes, namely ejusdem generics, was inapplicable, yet if general words follow specific words, the general words should take their meaning from the specific words preceding it. In Maxwell on interpretation of Statutes (11th Ed.) at page 326 it is stated thus:

'But the general word which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words. In other words, it is to be read as comprehending only things of the same kind as those designated by them, unless, of a wider sense was intended as, for instance, a proviso specifically excepting certain classes clearly not within the suggested genus.'

22. It is clear from this statement of the principle that the general words following must be of the same nature as the specific words in order to attract its application. In the case on hand, for reasons already set out be me, it is not possible to predicate that 'sufficient grounds' are of the same nature as 'formal defects' occurring in clauses (b) and (a) respectively of Order 23, Rule 1(2) C.P.C.

Further, this principle is not an unqualified one. To quote Maxwell again, at page 331 of his book he states the position thus:

'Of course, the restricted meaning which primarily attaches to the general word in such circumstances is rejected when there are adequate grounds to show that it has not been used in the limited order of ideas to which its predecessors belong. If it can be seen from a wider inspection of the scope of the legislation that the general words, not words are nevertheless to be construed generally, effect must be given to the intention of the legislature as gathered from the larger survey.'

23. In the light of the forgoing discussion and enunciations, I am unable to agree with the contention of Sri Reddy on the interpretation to be placed on clause (b) of Order XXIII, Rule 1(2), C.P.C.

24. The next decision relied on by Sri Reddy is the one reported in : AIR1951All845 , Abdul Ghafoor v. Abdul Rahman, which is also a Full Bench decision. In this case, Misra, J. speaking for the Full Bench, following the Bombay Full Bench case, observed thus:--

(at para 12 page 848).

'..... Having regard to the context in which C1. (b) has been placed and to the preponderance of authority which favours the placing of restrictions on the language of C1. (b). I have no hesitation in accepting if I may say so with respect the view of the Full Bench of the Bombay High Court and in holding that the words 'other sufficient grounds' in C1. (b) are confined only to the grounds analogous to those mentioned in clause (a).'

25. In view of my earlier discussion in regard to the Bombay Full Bench case, I do not consider it necessary to examine this decision in detail.

26. In the decision reported in : AIR1956Ori77 , Atul Krushna Roy v. Raukishore Mohanty on which reliance is placed on behalf of the respondent, Panigrahi C. J. dissenting from the ratio of the decision in the above Full Bench ruling, has observed thus at page 78:

'I do not therefore see any justification for restricting the meaning of that expression only to formal defects or those analogous thereto. This doctrine of ejusdem generics has been pushed too far in some cases.

In my humble opinion it should be restricted only to cases where the generic words follow specific words in the very same clause or sentence. But where the object of the Legislature has been clearly expressed and the intention is to extend the scope of the general words a wider meaning should be given to the succeeding words.

It may be seen that the word 'other' before 'sufficient grounds' is capable of the interpretation 'other than a formal defect'. As at present advised, therefore, I am inclined to the view that the expression 'other sufficient grounds' need not necessarily be restricted to defects of a formal character and that the words are wide enough to embrace other defects as well.'

27. In the same decision, the learned Chief Justice after referring to the decision of the Privy Council reported in AIR 1922 PC 112, in which it was held that the expression 'any other sufficient reason' occurring in Order 47, Rule 1, C.P.C. should be construed ejusdem generics on the face of the record', has observed, as regards the interpretation to be placed on Order 23 Rule 1(2), as follows:

'It was, therefore, held by the Privy Council in the context of that rule that 'any other sufficient reason' must be read ejusdem generics with 'mistake or error apparent on the face of the record'. I do not see any justification for importing that construction into the language of O. 23, R. 1. It will be noticed that the expression 'other sufficient grounds' used in clause (b) of R. 1(2) of O. 23 is not enacted as a part of, or as a continuation of, C1, (a) so as to connote a formal defect, but is separately classified and mentioned under a separate rule.'

28. The next decision relied upon by Sri Chouta is the decision reported in : AIR1957Mad207 , S. Naicker v. R. Ammal. In interpreting Order 23, Rule 1(2), the learned Judge has observed as follows at page 208:

'Sub-clauses (a) and (b) seem to deal with two different situations, and not with similar or analogous situations. Otherwise, there seems to be no need for having introduced the terms 'other and sufficient' in sub-clause (b) in contradistinction from the terms contained in sub-clause (a). Some meaning and significance should be attached to the terms 'other and sufficient' in the context in which they appear. The first ground is stated top be the possibility of a failure of the suit by reason of formal defect. If it was the that any other ground shown for withdrawal of the suit with liberty to file a fresh suit should also be more or less the same or analogous to the formal defect, then the terms 'other and sufficient' then the terms 'other and sufficient' lose all meaning and significance in the context.

The clause seems to read and convey sufficient meaning even if it is read without the words 'other and sufficient'. Therefore it will not be doing any violence to the language or to the spirit and object underlying the same, if we were to hold that a wider discretion is ought to be given to the Courts under sub-clause (b) than under sub-clause (a) I do not see any justification to restrict the scope of sub-clause (b) when the Court is satisfied on other and sufficient grounds to give leave to withdraw than those contained in sub-clause (a).'

29. While referring to section 97 of the Civil Procedure Code of 1859 and the legislative intendment in that regard, it is further observed as follows at page 208:

'This old provision appears to me to have been much more liberal and gave a wider discretion to the Court to allow a suit to be withdrawn on any grounds that were considered sufficient by the Court, where liberty was asked to bring a fresh suit on the same cause of action. But this old section was amended later on and it took the form in which it is now found. In the amended form a distinction is made between a plaintiff withdrawing a suit, and a plaintiff withdrawing from a suit. Whatever that distinction be, it is not clear what exactly was the intention of the legislature when the amendment was made.'

30. The last decision relied upon by Sri Chouta is the one reported in AIR 1964 J. & K. 18, Fateh Shah v. Mst. Bega. In the said decision, Murtaza Fazl Ali, J. Has observed thus as regards the interpretation of the Rule in question at pare 20:--

'In the first place, the very fact that the legislature has given two different grounds for allowing withdrawal of the suit, indicates that the grounds are separate and independent and not allied or analogous,. Indeed, if the intention of the Legislature would have been that the words 'sufficient grounds' should be read as ejusdem generics with formal defect, there was nothing to prevent the Legislature from incorporating these e words even in sub-clause (a).

Secondly, the word 'other' before 'sufficient grounds' clearly indicates that the sufficient grounds contemplated by the legislature would be grounds other than those mentioned in sub-clause (a) of O. 23, R. 1 (2), Civil P. C. Finally we find that where the Legislature intended that the words should be used and read as ejusdem generics they have been incorporated in the same sentence or in the same clause. For instance, in Order 47, Rule 1 C.P.C. which is the provision for review, the words 'any other sufficient reasons' have been used in the same sentence in which the words 'mistake or error apparent on the face of the record' have been used. This would clearly mean that the words 'any other sufficient reasons' would have to be read ejusdem generics with the words 'mistake or error on the face of the record'. On the other hand, the Legislature in its wisdom thought it fit in Order 23, Rule 1 C.P.C. to incorporate the grounds for leave to withdraw the suit in two separate and independent clauses. The rule of ejusdem generics in our opinion, would apply only if the general words follow the specific words in the same sentence or in the same clause. But it would not apply if the words are employed in a different sub-clause altogether and are not associated or coupled together.'

31. From the above discussion, it is clear that there are two conflicting views on the question of interpretation of the expression 'other sufficient grounds' occurring in Order 23, Rule 1(2)(b) C.P.C. The decisions relied upon by Sri Chouta the learned Counsel appearing on behalf of the respondents, in support of the view that both the clauses of that Rule should not be read 'ejusdem generics' have been rendered subsequent to the Full Bench rulings relied on by Sri Reddy. In the said rulings, the Full Bench decisions have been referred to and not followed and therefore a question arises as to which view is more in consonance with the intention of the Legislature in enacting Order 23, Rule 1(2)(b) C.P.C. The preponderance of authority is, if I may say so, slightly in favour of the view that the expression 'other sufficient grounds' means 'grounds' analogous to 'formal defects'. I may, however, mention that no decision of this Court bearing on this question has been brought to my notice at the Bar.

32. With all respect to the learned Judges composing the Full Benches of the High Courts of Bombay and Allahabad, whose decisions have been strongly relied upon by Sri H. F. M. Reddy, the view as expressed in the three decisions of the High Court of Orissa, Madras and Jammu and Kashmir, appeals to me. I would, therefore, prefer, with respect, the view followed by those High Courts. It is also to be seen from those decisions that the views of the High Courts of Calcutta and Lahore are also in accord with them.

33. I have earlier set forth some of my views as regards the Full Bench decisions of Bombay and Allahabad. There may be cases in which a plaintiff may have to fail on account of an excusable failure on his part or some unavoidable misfortune. In such an eventuality grave and irreparable injury would be caused, if such a plaintiff is not allowed to withdraw from the suit with liberty to file a fresh suit on the same cause of action. It may even be possible that on account of a mistake of the Counsel of his choice his case may be seriously jeopardised. Such a case appears to have arisen for consideration in a case reported in AIR 1946 Lah 429.

That was a case in which the plaintiff was bound to fail on account of the appellant's case having been mishandled by his Advocate. In such a case, Din Mohamed, J. speaking for the Division Bench held that the matter was fully covered by the words 'other sufficient grounds'. In making a reference to this case, I do not wish to be understood as subscribing to a proposition that the Court has absolute discretion while exercising jurisdiction is judicial depending on the facts and circumstances of each case.

34. In my opinion, the interpretation placed on the expression 'other sufficient grounds', occurring in the sub-rule in question, that the 'grounds' referred to should be analogous to 'formal defect' in clause (a) of Order 23, Rule 1(2) would also give rise to a curious result. On a plain reading of clause (a) it would be clear that for a plaintiff to withdraw from the suit with liberty, it would not be sufficient for him to show that the suit suffers from a 'formal defect', such as any of those specified in the Privy Council case reported in 13 MIA 160. He should also satisfy the condition that the suit would fail on account of such 'formal defect'. This latter condition, to my mind, is stringent one. The legislature has not thought fit to impose this condition in so far as 'other sufficient grounds' in clause (b) are concerned. If the view that the 'grounds' in clause (b) should be analogous to 'formal defects' in the Legislature had done away with that condition in the case of a 'ground' which is merely analogous to it. In other words, it would be sufficient for a plaintiff to make out a ground which merely bears resemblance to a 'formal defect' to withdraw from the suit, provided the Court finds it sufficient, whereas if a term, is made out he has further to fulfill the condition that the suit would fail on that account.

To put it in yet another way, a defect which is something less that a 'formal defect' in clause (a), but is merely analogous to it, will enable a plaintiff to withdraw from a suit, without further fulfilling the condition regarding failure of suit as envisaged in clause (a). Such an anomaly cannot reasonably be attributed to a legislature.

35. The words 'other' and 'sufficient' appearing in clause (b) cannot be said to be without significance. Given its plain meaning in the context in which the word 'other' appears, it refers to something other than a 'formal defect'. The word 'sufficient' makes it obligatory on the part of the Court, to come to a conclusion as to the existence of grounds and the sufficiency or otherwise thereof, before allowing a plaintiff to withdraw from a suit. The words 'formal defects' obviously are referable to only defects in form as distinguished from defects of substance. As observed earlier, it is possible to think of cases failing on account of unavoidable events, and not attributable to the merits of the case. It is reasonable therefore to conclude that the Legislature intended to make provision not merely for 'formal defects' but also for more serious defects, while allowing a plaintiff to withdraw from a suit.

36. For these reasons also, I am not persuaded to agree with Sri H. F. M. Reddy that the defects envisaged in clause (b) of the Rule in question should be analogous to 'formal defects' as laid down in clause (a) of the same Rule.

37. In the light of the above discussion, I hold that the words 'other sufficient grounds' occurring in Clause (b) of sub-rule (2) of R. 1 of Order 23, C.P.C. should be read independently of the words 'formal defects' occurring in clause (a) of that Rule. I am further of the view that the meaning to be given to the words 'other sufficient grounds' should not be limited to the grounds afforded by the defects which are analogous to formal defects referred to in clause (a), as it would be unnecessarily restricting the provisions of Order 23, Rule 1 C.P.C. which has invested the Court with powers to allow withdrawal from the suit ex debito justitiae in cases where such a prayer is not covered by clause (a) of that Rule.

38. In the result, the petition deserves to fail and is dismissed.

39. In the circumstances of the case, there will be no order as to costs.

40. Petition dismissed.


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