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Atul Krushna Roy Vs. Raukishore Mohanty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 178 of 1954
Judge
Reported inAIR1956Ori77; 22(1956)CLT32
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 23, Rule 1(2)
AppellantAtul Krushna Roy
RespondentRaukishore Mohanty and ors.
Appellant AdvocateM. Das, Adv.
Respondent AdvocateP.C. Chatterji, Adv.
DispositionRevision dismissed
Cases ReferredKamayya v. Papayya
Excerpt:
.....the partnership, which would inevitably lead to the dismissal of the suit, is to be regarded as a 'formal defect' or can be held to be one of the 'other sufficient grounds' within the meaning of order 23, rule 1 of the civil p. but their lordships are aware of no case in which, upon an issue joined and the party having failed to produce evidence which he was bound to produce in support of that issue, liberty had been given to him to bring a second suit. '.i am inclined to think that the legislature, in putting the two expressions separately in the two sub-rules intended that the 'other sufficient grounds' occurring in clause (b) need not be of a formal character like the ones mentioned in the privy council case cited above. in my opinion a formal defect is a defect of form which is..........the partnership, which would inevitably lead to the dismissal of the suit, is to be regarded as a 'formal defect' or can be held to be one of the 'other sufficient grounds' within the meaning of order 23, rule 1 of the civil p. c. there has been considerable divergence of opinion among judges as to the meaning to be given to the expression 'other sufficient grounds' used in clause (b) of rule 1 (2) of order 23.one view is that the expression should be read ejusdem generis with the expression 'formal defect' occurring in clause (a); while according to the other view the expression 'other sufficient grounds' in clause (b) should be taken to mean, that the ground should be in the nature of a'formal defect' mentioned in clause (a). it is unnecessary to refer to all the cases cited at the bar.....
Judgment:
ORDER

Panigrahi, C.J.

1. This is a petition under Section 115 of the Civil P. C., directed against an order passed by the Munsif, Puri, permitting the plaintiff to withdraw his suit for accounts with liberty to institute a fresh suit. The facts are that the plaintiff and defendant were partners of an unregistered firm. The plaint had been so drafted that the suit was bound to fail as there was no prayer for dissolution of the partnership before accounts could be taken.

After the written statement was filed, the plaintiff discovered that on account of this defect the suit was bound to fail and therefore applied for leave to withdraw it. The learned Munsif held that the plaintiff had been put to the risk of losing his entire claim on account of the faulty drafting of the plaint by his lawyer, and following the decision reported in 'Gurprit Singh v. Punjab Government', AIR 1946 Lah 429 (A), permitted the plaintiff to withdraw the suit with liberty to institute a fresh suit. It is against this order of the learned Munsif that the defendant has come up in revision.

2. The first point that needs consideration is whether the failure to include a prayer for dissolution of the partnership, which would inevitably lead to the dismissal of the suit, is to be regarded as a 'formal defect' or can be held to be one of the 'other sufficient grounds' within the meaning of Order 23, Rule 1 of the Civil P. C. There has been considerable divergence of opinion among Judges as to the meaning to be given to the expression 'other sufficient grounds' used in Clause (b) of Rule 1 (2) of Order 23.

One view is that the expression should be read ejusdem generis with the expression 'formal defect' occurring in Clause (a); while according to the other view the expression 'other sufficient grounds' in Clause (b) should be taken to mean, that the ground should be in the nature of a'formal defect' mentioned in Clause (a). It is unnecessary to refer to all the cases cited at the Bar as the decision in each case can be justified on the facts of that particular case. After all the question is -- what is a formal defect?

3. My attention was drawn to the case of-- 'Watson & Co. v. Collector of Zillah Rajshahye'. 13 Moo Ind App 160 (PC) (B), in which, the Privy Council referred to a few circumstances which would come under the category of a 'formal defect' so as to non-suit a plaintiff. Those grounds are 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, and to cases in which there has been an erroneous valuation of the subject-matter of the suit.

Their Lordships said:

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

In that case, however, no reference was made to the provisions of the Civil Procedure Code of 1859.

It should be remembered that the provisions of Order 23, Rule 1, have now been specifically enacted in order to remove any possible doubt as to the meaning of the words 'formal defect.'. I am inclined to think that the Legislature, in putting the two expressions separately in the two sub-rules intended that the 'other sufficient grounds' occurring in Clause (b) need not be of a formal character like the ones mentioned in the Privy Council case cited above.

In my opinion a formal defect is a defect of form which is prescribed by rules of procedure such as misjoinder of parties, of causes of action, non-payment of proper court-fee, failure to disclose cause of action and so forth. All these details must be mentioned in the plaint under the rules of procedure, but there may also be other sufficient grounds which would render the suit liable to be dismissed by reason of a defect or defects which may not necessarily be of a formal character such as those enumerated above.

It is to cover cases of this type that the Legislature has thought it necessary to empower the Court to use its discretion so as to enable the plaintiff to withdraw his suit and file a fresh one.

4. The case reported in -- 'Abdul Ghafoor v. Abdul Rahman', AIR 1951 All 845 (FB) (C), has been strongly relied on by learned counsel for the appellant, and I am asked to put a strict interpretation on the language of Clause (b). But there is also a Pull Bench decision of the Bombay High Court reported in -- 'Ramrao Bhagwantrao v. Appanna Samage', AIR 1940 Bom 121 (FB) (D), where it has been held that the expression 'other sufficient grounds' need not, be read ejusdem generis with the grounds mentioned in Clause (a) of Rule 1 (2) and the grounds mentioned in Clause (b) need not necessarily be fatal to the suit, in order to attract the provisions of that clause, but must be analogous to a formal defect.

My attention has also been drawn to a judgment of Narasimham J. reported in -- 'Babrak Khan v. Shakoor Muhammad', 20 Cut LT 643 (E), where reliance was placed on a Privy Council decision reported in -- 'Chhajju Ram v. Neki'. AIR 1922 PC 112 (F), in which their Lordships held that the expression 'other sufficient reasons' occurring in Order 47, Rule 1, Civil P. C., should be construed ejusdem generis with 'mistake or other error apparent on the face of the record'.

It should be remembered that the expression 'for other sufficient reasons' occurring in Order 47, Rule 1, is used so as to convey the impression that the mistake or error apparent on the face of the record, mentioned in the rule is not exhaustive of all the reasons which may afford a ground for applying for review of the judgment.

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

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 generis 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 atpresent advised, therefore, I am inclined to theview that the expression 'other sufficientgrounds' need not necessarily be restricted todefects of a formal character and that thewords are wide enough to embrace other defectsas well.

5. The Madras High Court were apparently of the same view in the Full Bench case reported in -- 'Kamayya v. Papayya', AIR 1918 Mad 1287 (FB) (G). That was a case in which the plaintiff's suit was likely to fail on account of his omission to make certain necessary allegations to indicate what his father's title was. The Full Bench upheld the orders of the District Judge who permitted the suit to be withdrawn and allowed the plaintiff liberty to bring a fresh suit.

6. I would now refer to the case reported in AIR 1946 Lah 429 (A), on which the learned Munsif has relied. There the plaintiff's case was bound to fail on account of the appellant's case having been mishandled by his Advocate. Din Mohammed J. delivering the judgment of the Bench observed that the words 'other sufficient grounds' cover all those cases which appear to the Court as affording such grounds.

I am however not prepared to go so far as that and to hold that the Court has absolute power to grant leave in every case where it considers the ground to be sufficient. If the decision lays down that the Court, in exercise of its judicial discretion, may consider any ground other than a formal defect as a sufficient, ground for permitting the plaintiff to withdraw his suit, then I would certainly accept the dictum with respect.

In that particular case the ground justifying the grant of permission was that the plaintiff was running the very great risk of losing a valuable estate merely for the blunder of his counsel in not claiming proper reliefs. Similarly, in the Madras Full Bench case, reported in AIR 1918 Mad 1287 (G), all the five Judges constituting thp Bench were of opinion that the failure to set out the plaintiff's title in proper form was covered by the provisions of Order 23, Rule 1, Civil P. C.

7. Having regard to these principles, I think the present case is fully covered by the authority of these decisions. The failure of the plaintiff's counsel to incorporate a prayer for dissolution of the partnership was bound to result in the dismissal of the suit. This is certainly a defect and provides a 'sufficient ground' for permitting the plaintiff to come to Court again with a properly drafted plaint.

8. I am further satisfied that the learned Munsif has, alter a full discussion of the cases cited before him and having found that this is a case which comes under Order 23, Rule 1 (2) has exercised his discretion properly. In arriving at this conclusion even if he has committed any error, it is not open to this Court to interfere in revision, for that would amount to interference with his judicial discretion. Even if, I were inclined to take a different view on the question of the sufficiency or otherwise of the 'ground' on which he bases his conclusion, that would not provide justification for interfering in revision.

I would accordingly dismiss this revision butin the circumstances I make no order as to costs.


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