1. The order of the Subordinate Judge of Khammammeth refusing to grant permission to the plaintiff in Suit No. 11/1 of 1958 to withdraw the suit with permission to file a fresh suit, is questioned in this revision petition.
2. The array of the parties in this suit and the purpose fur which this suit was filed need mention. The plaintiff is a minor and is a son of the 1st defendant. The minor plaintiff has been adopted to the brother of the 1st defendant. The adoptive mother of the minor plaintiff filed this suit to set aside a gift deed executed by his natural father, the 1st defendant, in favour of the 2nd defendant who is the sister of the 1st defendant. Though more than two years have elapsed since the filing of the suit, the trial of the suit has not gone on. On 16-12-1959, an application under Order 23, Rule 1, C. P. C. was filed by the next friend of the minor plaintiff. The next friend alleged in it that the defendant obviously meaning the 1st defendant made strenuous efforts and is not allowing any person to speak the truth and that the requisite evidence is not avail-able for no fault of the plaintiff and that as valuable rights of the minor are involved, it is in his (minor's) interests to withdraw the suit reserving liberty to bring a fresh one.
3. This is opposed by both the defendants on whose behalf only a verified petition was filed by their advocate The objection taken is as follows:
'No permission can be given to the plaintiff to with draw his suit, reserving his right to institute fresh suit. The suit is fit to be dismissed. Non-availability of evidence is not a ground to give permission to withdraw suit. The defendants have incurred great loss and expenditure.' The learned Subordinate Judge took the view that there is no sufficient ground to grant the permission asked for as he felt bound on the authority furnished by Veeraswami v. Lakshmudu, : AIR1951Mad715 , to hold that insufficient evidence will not be matter coming under Clause (a) or (b) of Rule 1(2) of Order 23, C. P. C. since the words 'other sufficient grounds' found in clause (b) has been interpreted to mean ejusdem generis to those mentioned in Clause (a). He therefore, dismissed the application.
4. In this revision petition, Mr. Venugopala Reddy had striven to make out that the view taken by Sadasva Ayyar j. in Kannusami Pillai v. Jagathambal, ILR 41 Mad 701 : (AIR 1919 Mad. 1071), has to be preferred to the contrary view taken in the very same decision-by Oldfield J. He submitted that if his argument finds favour, the order of the lower Court dismissing the application would be manifestly wrong. The argument of the learned counsel is that it is enough for a person, who reserves the liberty to file a fresh suit requesting permission therefor as provided in Sub-rule (2) of Rule 1 of Order 23, C.P.C., to show that there are sufficient grounds for allowing such a plaintiff to institute a fresh suit, and that those sufficient grounds are meant to be other than those mentioned in Clause (a) of that sub-rule viz., 'formal defect', and further 'other sufficient grounds' mentioned in clause (b) need not be construed ejusdem generis with 'formal defect' mentioned in Clause (a).
No doubt, if this question has arisen for the first time In this Court or has to be decided without reference to expression of views in prior decisions, I would be inclined to hold that there is much to be said in favour of this contention. Firstly, in support of this view of mine, there is the weighty opinion of Sadasiva Ayyar, J. where the learned Judge has brought out how and when the doctrine of ejusdem generis could be pushed into service and that too scarcely and what limitations have been set in regard to it even by English cases. He had also given the reasons which appealed to him for the undesirability of applying this doctrine in interpreting 'other sufficient grounds' occurring In Clause (b) of Sub-rule (2) of Rule 1 of Order 23, C. P. C. But I refrain from quoting the relevant passage from that judgment of the learned Judge concerning this for the simple reasons that much water has flown between the time that decision was rendered and up till now so as to disable 2 single Judge to re-consider the matter basing upon first principles or without reference to the binding nature of subsequent decisions.
5. The question whether 'other sufficient grounds' are to be construed ejusdem generis with 'formal defect' has been the subject-matter of innumerable decisions in several High Courts. So far as the Madras High Court is concerned, this question was discussed by a Division Bench in AiyaGoundan v. Gopanna Marudiar, 27 Mad LJ 480 : (AIR 1915 Mad 480), even before Sadasiva Ayyar, J. chose to. express strongly about the matter in ILR 41 Mad 701 : (AIR 1919 Mad 1071). For other later decisions, a reference could be made to Nagamma v. Lakshminarasu, AIR 1928 Mad 1085; Jaga-dambal v. Sundarammal, AIR 1941 Mad 46; Varadarajulu v. Narayanaswami, : AIR1950Mad40 ; : AIR1951Mad715 and Sambanda Naicker v. Ranganayaki Ammal, : AIR1957Mad207 . It is sufficient to point out that except the opinion of Sadasiva Ayyar, J. all the other judges veered expressly to the view, or held that though 'other sufficient grounds' need not be construed ejusdem generis with 'formal defect', grounds which are not at least analogous to what is meant by 'formal defect' should not weigh with Courts in granting permission.
A Division Bench of the Andhra High Court consisting of Subba Rao, C.J. and Bhimasankaram, J. had occasion to consider this question in Sarveswara Rao v. Veeraraju, 1956 Andh WR 437 : (AIR 1957 Andh Pra 303). After pointing out that the revision was heard by that Division Bench on account of the conflict of views of the Madras High Court, Bhimasankaram, J., who spoke for the Court, expressed that there is a general disinclination to apply the technical rule of ejusdem generis though there is a consensus of opinion that the words in the latter clause should be interpreted with reference to the words in the earlier clause. The importance of the modern tendency of law 'to attenuate the application of the ejusdem generis rule' as referred to by Asquith, J. in Alien v. Emerson, (1944) 1 KB 362, has also been stressed. Bhimasankaram, J. went on to say at P. 440.
'Further, for the application of the rule, there must be a distinct genus or category. The force of the criticism of Sadasiva Ayyar, J. as to the application of ejusdem generis rule seems to have been generally recognised. But the Courts have felt that some limitation should be imposed upon the words 'other sufficient grounds' with reference to the phrase 'formal defect'.'
Having regard to this decision which is binding on me, it is no longer open to arrive at any other conclusion however appealing the reasoning in support of that other conclusion may be, but only to find out on the basis of the allegations and other relevant factors which are necessarily to be taken into consideration whether even in the instant case it could be said that the suit has failed by reason of some formal defect when the next friend of the plaintiff sought permission to withdraw it. It is pertinent, in my view, in this connection to have to refer to the grounds as stated in the order of the lower Court and examine whether the interpretation put by the lower Court in regard to the allegations in the affidavit in support of the petition Pled by the plaintiff is warranted. The learned Subordinate Judge premised that:
'The ground for seeking permission according to the petitioner is that there is not sufficient evidence available in the case.'
And went on having been under that impression that the plaintiff is not capable of producing sufficient evidence, to observe :
'Insufficient evidence will not come Under Clause (a) or (b) of Order 23, Rule 1(2).'
In my view, this way of reading the averments made by the next friend of the minor plaintiff is incorrect; because, especially, if it is borne in mind that the Court has rot as yet begun to take evidence in the suit, sufficiency of the evidence as the test for assessing the effect of the averment of the next friend in her affidavit cannot be thoughtof. Such a consideration regarding sufficiency or otherwise, of evidence about which the plaintiff is in a position to make a statement becomes possible, and also the assessment thereof, only at a stage when some evidence has been let in and the inability to lead any other or further evidence has been pleaded on behalf of the plaintiff. Such is not the actual position in the instant case; and it is therefore relevant to bear in mind that the next friend is not pleading inability after leading some evidence. It may also be pointed cut that even in Watson v. Collector of Rajshahye, 13 Moo Ind App 160 (PC), which could be considered as the initial basis for the propositions adopted by the lower Court, where what has all been stated is that in a case where the issue has been joined and the patty has failed to produce evidence which he was bound to produce in support of the issue the liberty to bring a second suit could not be granted.
Referring to this Sadasiva Ayyar, J. in ILR 41 Mad 701 at p. 705 : (AIR 1919 Mad 1071 at p. 1073), remarked as follows:
'in 13 Moo Ind App 160 (PC), the first suit in which liberty to bring a fresh suit was given was instituted in 1856 and decided in 1857 even before the enactment ef the first Civil Procedure of 1859 (see Section 97 of that Code where the provision as to withdrawal appears) the suit was again not allowed to be withdrawn, but it was dismissed for want of sufficient evidence and then tiie Judge-said that his order dismissing [he suit was 'not intended to bar the plaintiffs from proceeding again as if the action-had not been brought'. The remarks of their Lordships of the Privy Council at page 170 mainly dealt with the procedure of the Courts of Equity in England as distinguished from other Courts even in England, and could have no reference whatever to the powers of Indian Courts under the provisions of the Civil Procedure Code.' This observation which pertains to the limited use to which observations by the Privy Council could be used has not been dissented even by Oldfield, J. in that same case. Such being the position, it is rather difficult to have to posit that what has been said in the decision in 13 Moo Ind App 160 (PC), viz., that in a case where the party has failed--to produce evidence, it would not provide an instance for treating it as a case of dismissal for default.
In Sheo Kumar v. Thakurji Maharaj, : AIR1959All463 , a Division Bench consisting of Mukerji and Nigam, JJ. ob-served that: ''Where the Court allows a plaintiff to withdraw a suit with liberty to bring another suit on the same cause of action on the allegation of ihe plaintiff that the attesting. witnesses of the will on proof of which his success in the suit depended, were won over by the defendant, the order cannot be said to be wrong under Order 23, Rule 1 because the defect which is likely to arise in the way of the plaintiff succeeding was in the nature of a formal defect for, there was a form which had to be adhered to in the matter of giving evidence in regard to the proof of the Will.' No doubt, in so postulating the position, stress has been laid in this decision to the peculiar manner in which evidence in regard to a will has to tie conformed to a form. Nevertheless, in substance in the core it is the failure due-to inability to produce evidence that has been considered as constituting the 'forma: defect' which necessitated the withdrawal of the suit.
6. While therefore, the inability of a party to produce further evidence while the trial is in progress may in some Justifiable cases be considered as not coming under 'formal defect', other instances where this defect is not entirelydue to dereliction of duty of the plaintiff but by causes beyond the control of the person who litigates on behalf of the plaintiff as in the present case cannot be construed as one which could be penalised by refusing the liberty to a plaintiff to file a fresh suit. The case, where a minor is concerned and next friend considered that the filing of a suit was opportune and beneficial to the minor, but later on has regrets as the next friend is unable to rise to the task of providing himself or herself with the sinews to fight the litigation and feels unable to produce evidence while being hampered by the efforts of the other side could Supply clearly, in my view, an example of a suit failing for a defect in the conduct of the suit. The plaintiff cannot be made responsible therefor, and in such a case that defect could be considered as also 'formal' even without stretching the language. One thing assumes importance: The minor on whose behalf the next friend litigates cannot be in charge of the case, and therefore, the inability pleaded by the next friend cannot be made to affect a minor adversely.
Indeed, law has always been considerate or lenient enough to recognise that the minor can make the choice to set aside any suit by the next friend if it adversely affects such minor plaintiff. But that contingency arises only after the minor becomes a major. Therefore, it will not only be inequitable but could be taken as forming part of a duty of a Court to cause no further impediment in the way of the minor achieving his purpose as smoothly as possible without any obstacle being placed by any hardship which may be caused by the application of Rule 1 of Order 23, rather harshly. This way looked at, a liberal interpretation of Sub-rule (2) of Rule 1 of Order 23 is called for; and there is, in my view, every justification to hold that the sufficient ground which has been made out in this case for allowing the minor to institute a fresh suit, which has failed because of the formal defect caused by the next friend seeking to go out of the picture when the plaintiff is under a disability, is one at least analogous to the nature of formal defect provided for in Sub-clause (a) of Sub-rule (2).
The outlook on a case of a suit instituted by a next friend on behalf of a minor and where the next friend does not discharge his or her duty has been adverted to in an illuminating judgment of Bhashyam Ayyangar J. in Dorasami Pillai v. Thungasarni Pillai, ILR 27 Mad 377. No doubt, that case dealt with Section 446 of the Old Civil Procedure Code which corresponds to Order 32, Rule 9 of the present Code. But the learned Judge was concerned, all the same, with withdrawal of a suit by the next friend on the alleged ground that the next friend was unable to conduct the further proceedings in the suit by meeting the necessary expenses, or to prove that the whole of the plaint properties belonged to the plaintiff. The learned Judge holding the view that that was a case in which the withdrawal was also brought about by the father of a minor held that the minor was prejudiced. Notwithstanding this finding, the observations that sanction to withdraw without permission to file a fresh suit could be considered inequitable are found in this decision.
The following extract from that reported case could be said to be in point:
'Section 446 of the Code of Civil Procedure enacts that, if the interest of the next friend is adverse to that of the minor, or if the next friend does not do his duty, or for any other sufficient cause, application may be made on behalf of the minor or by a defendant for his removal, and the Court may order the next friend to be removed. It is, therefore, the duty of the Court, if it finds that thenext friend does not do his duty in relation to the suit, not to permit him to prejudice the interests of the minor, but to adjourn the suit in order that some one interested In the minor may apply on behalf of the minor for the removal of the next friends, or in order that the minor plaintiff himself may, on coming of age, elect to proceed with the suit or withdraw from it. In the present case, en the 28th July 1902, when the case came en for final hearing after several adjournments, the junior vakil who was specially engaged on that very day, apparently in virtual supervision of the senior who was present in Court presented a petition stating that the plaintiff or rather his next friend was unable to conduct the further proceedings in the suit by meeting the necessary expenses and to prove that the. whole of the plaint properties belonged to the plaintiff and praying that the Court might be pleased to strike the case off the file without further proceedings. This application was granted on that very day and the plaintiff ordered to pay the defendant's costs. It is established beyond doubt by the evidence of the junior vakil who was examined as a witness on behalf of the respondents in connection with the review petition that he was engaged by the next friend's father, that the Judge asked him whether he was going to withdraw unconditionally or whether he wanted to withdraw with permission to bring a fresh suit, and that be, in reply, stated he did not want such permission.
Assuming that the next friend, the mother of the plaintiff, was aware of ihe contents of the vakalatnamah authorising the vakil to withdraw the suit executed that very day outside the precincts of the Court and that she did not authorise the vakil to withdraw the suit it must have been obvious to the Subordinate Judge that, in withdrawing the suit without permission to bring a fresh suit, the minor's vakil, at the instance of the next friend, was acting most prejudicially to the interests of the minor: and that is apparently the reason why he pointedly asked the vakil if he wanted permission to bring a fresh suit.'
The tenor of the observations contained in this passage brings out clearly the importance that has to be attached by Courts, while granting permission to next friends to withdraw suits, to the desirability of granting permission to bring a fresh suit. In a converse case where frankly the next friend avers that it has been made difficult by the contesting defendant to prosecute the suit, the question of-, prejudice so caused to the minor cannot at all, in my view, he put in question. Therefore, when such a prejudice exists. there Is all the more necessity for ascertaining from a next friend asking permission to bring a fresh suit why this relief is not prayed for and to grant the same, if due weight' is to be given to the expression of the law on the point as contained in this learned Judge's observations. Much more so, the granting of permission to bring a fresh suit will be justified in a case like the present where such a request is made by the next friend; and a mere technical objection that sufficient cause though shown should be ignored for the simple reason that it doss not straightway come to be defined as a 'formal defect' or a doubt may be entertained for classifying it as such, should not, in my view, stand in the way of granting the permission. On the other hand, wherever possible and when it is also feasible to construe that the suit is failing on account of verbal jugglery, and. that too apart from the interests of substantial justice--nothing should stand in the way for holding that the failure of the suit brought about by withdrawal of the next friend was due to something akin to, if not in the nature of 'formal defect' itself.
7. It only remains to notice a contention of Mr. Kesava Rao for the respondents that in the matter of construing.
'formal defect' occurring in Clause (a) of Sub-rule (2) of Rule 1 of Order 23, C. P. C., regard must be had to what has been said in decisions like Atul Krushna v. Raukistiore, (S) AIR 1956 Orissa 77, Chellappan In re., 71 Mad LW 77 and Bhag Mal v. Khem Chand, . In the Orissa case, more importance has been attached to the observations contained in 13 Moo Ind App 160 (PC). I had already occasion to refer to that pronouncement of the Privy Council, it would suffice if again in this connection it is pointed out that cases enumerated therein illustrating instances which are considered to fall under 'formal defect' cannot be considered as exhaustive. The passage which Panigrahi, C.J. relied upon consisted the following 13 Moo Ind App 160 at p. 170 (PC). It runs:
'There is a proceeding in those Courts (Courts in England) called a non-suit, which operates as a dismissal of the suit without barring the right of the party to litigate the natter 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 rejected because it has not borne the proper stamp, and to cases in which there has been an enormous valuation of the subject of the suit. In all those cases the suit fails By reason of some point of form .....
In what context this observation has been made by the Privy Council could be said to have been made plain even by the sentence which occurs just previous to the one extracted. It stales :
'We have not been referred to any case, nor are we aware of any authority which sanctions the exercise by the Country Courts of India cf that power which Courts of Equity in this Country occasionally exercise, of dismissing a suit with liberty to the plaintiff to bring a fresh suit for the same matter. Nor is what is technically known in England as a non-suit, known in those Courts.' So, while at a time when the Indian Courts were not empowered to exercise powers akin to those understood by the term 'Ron-suit' and when it was considered that that power could be used only very rarely or occasionally or sparingly, that pronouncement of the Privy Council has been made. With respect, it is therefore to be pointed out that in the present context any reference to this passage assettling the rule in regard to the interpretation of 'formal dufect', cr the conditions which ought to govern the permitting of filing of fresh suits, is not any longer called for. That decision is circumspect by its own observations, and is of no guidance; for, after the amendment of the Civil Procedure Code itself limitations are found therein and no more restrictions need be thought of.
It is found in the Madras case what that Court was concerned was with the desirability of amending the plaint without having to dismiss it after granting permission to file a fresh suit. The High Court felt no need to interfere with an order granting a relief under Rule 1 of Order 23, C.P.C. An expression of the view that 'formal defect' connotesdefects of various kinds not affecting the merits of the case is indeed made in that decision. This, even if adopted as the test in the instant case, cannot, in my view, affect the question of granting permission in the instant case. As for the Punjab case,' there is nothing to show that the plaintiff was withdrawing the suit in circumstances such as these in the instant case; nor the inability to adduce further evidence had been made out. Therefore, it is clearly distinguishable; and it has, in my view, little or no importance while on the question raised by the instant case where a next friend has been withdrawing the suit.
8. From the aforesaid discussions of the authorities and the position in equity and law as it obtains to-day regarding the granting of permission to file a fresh suit, I am of the view that the lower Court has erred in refusing to grant the permission to the next friend of the plaintiff to file a fresh suit. The order of the lower Court is, there-fore, set aside. In the result, the plaintiff is permitted to withdraw the suit with leave to bring a fresh suit. The revision petition is allowed; but I consider that there need be no order as to costs as the question itself could be said to be not free from doubt when the lower Court decided it.