R.C. Patnaik, J.
1. This is a revision against an order refusing leave to the plaintiff to withdraw the suit with liberty to institute a fresh suit.
2. The petitioner brought Original Suit No. 252 of 1976 for declaration of title, confirmation of possession; in the alternative for recovery of possession if he was found not to be in possession and for damages for unlawful removal of trees etc. He also alleged that the defendants had constructed a room over plot No. 1704, a part of the disputed, property.
3. Defendant No. 2 was set ex parte on 18-3-1977. On 30-8-1978 the plaintiff filed an application under Order 22, Rule 4 (4) of the Civil P. C. (for short, 'the Code') for exempting him from the necessity of substituting the legal representatives of defendant No. 2 about whose death he learnt 8 days before. An objection was filed by defendant No 3 to the effect that the Said defendant had died on 15-3-1978 arid had left behind legal representatives on whom his estate had devolved and since the right to sue had survived against the said legal representatives, the prayer for exemption should be refused. By order dated 23-2-1979, the trial Judge rejected the petition and dismissed the suit holding that the suit had abated against defendant No. 2 and in its entirety. The plaintiff carried Miscellaneous Appeal No. 12 of 1979 against the said order. During the pendency of the appeal, the plaintiff filed an application under Order 23, Rule 1 (3) for leave to withdraw the suit with liberty to institute a fresh suit. The appellate Judge rejected the petition.
4. Mr. P. Kar, the learned counsel for the plaintiff-petitioner, vehemently urged that the appellate Judge was in error in refusing leave. He urged that expression 'formal defect' in Order 23, Rule 1, need not be given a narrow meaning. If a wide and liberal meaning was given to the said expression, the defect from which the suit suffered would come within the purview of Order 23, Rule 1 (3) of the Code (before 1976 amendment) and leave should have been granted to the plaintiff to withdraw the suit with liberty to file a fresh one.
5. There is some divergence of opinion in the various High Courts whether or not the expression 'other sufficient grounds' occurring in Clause (b) of Sub-rule (3) of Rule 1 of Order 23 of the Code should be construed ejusdem generis with 'formal defect'. There is difference in this Court also. In Babrak Khan v. A. Shakoor Muhammad, (1954) 20 Cut LT 643, Narasimham, J. (as he then was) adopted the interpretation given to the expression 'or for any other sufficient reason' occurring in Order 47, Rule 1 of, the Code, by the Privy Council in Chhaju v. Neki, AIR 1922 PC 312 and observed that the expression 'sufficient grounds' occurring in Clause (b) of sub-r. (2) of ft. 1 of Order 23 should be construed ejusdem generis with the words 'formal defect' mentioned in Clause (a) of the said sub-rule and withdrawal could be permitted only if the defect was analogous to a 'formal defect', In Atul v. Rajkishore, AIR 1956 Ori 77, identical question arose before Panigrahi, C. J. His Lordship drew attention to the fact that the expression 'sufficient grounds' had been classified and mentioned in a separate Clause (i.e. Clause (b)) unlike in Order 47, Rule 1, where the expression 'or for any other sufficient reason' was a part of the clause itself. He held that the expression 'other sufficient grounds' need not be restricted to only formal defects or those analogous thereto. The words were wide enough to embrace other defects as well. The ratio in Atul v. Rajkishore was followed by this. Court in Brajamohan Sabato v. Sarojini Panigrahi (1974) 40 Cut LT 746: (AIR 1975 Orissa 39).
6. It is unnecessary to resolve the divergence of opinion expressed in this Court, though I would prefer to follow the dictum of Panigrahi, C. J. for the cogent and convincing reasons given by him, by referring this matter to larger Bench as this case can be disposed of on another point.
7. Having regard to the reliefs claimed in the suit, defendant No. 2 was a necessary party. No effective decree could be passed in favour of the plaintiff without defendant No. 2 and after him, his legal representatives, on record. For non-substitution of his legal representatives within, the period of limitation, the suit abated as against him. No application was made for substitution of his legal representatives and for setting aside abatement. An application under Order 22, Rule 4(4) of the Code was, however, filed after abatement had taken place for exempting the plaintiff from substituting the legal representatives. The learned trial Judge rightly rejected the application made after the abatement of the suit relying upon the rule laid down by this Court in several decisions. Consequent on the failure of the plaintiff to substitute the legal representatives and take steps for setting aside abatement, the suit abated against defendant No. 2 and having regard to the nature of the suit and the reliefs claimed, the abatement of the suit was in its entirety. The suit could not proceed against the rest of the defendants on record. Hence the suit was dismissed.. An appeal was carried.
8. An application was filed before the appellate court under Order 23, Rule 1(3) of the Code for leave to withdraw the suit with liberty to file a fresh one. It was contended that by reason of the abatement of the suit as against defendant No. 2, there had arisen a formal defect in the constitution of the suit. Otherwise also the case was one which would come under the expression 'other sufficient grounds' in Clause (b) of Sub-rule (3) of Rule 1 of Order 23. The application was rejected
9. Learned counsel for the petitioner relied upon Hakir Mahamed. v. Abdul Majid AIR 1953 Cal 588. That was a suit for ejectment of trespassers. During the pendency of the suit one of the co-trespassers died. An application for bringing his legal representatives on record was dismissed and the trial court directed abatement of the suit against the deceased co-trespasser. The suit was, however, decreed as against the rest of the co-trespassers. In appeal, when the first appellate court took the view that the entire suit had abated, the plaintiff made an application seeking leave to withdraw the suit with liberty to institute a fresh one on the same cause of action. The lower appellate court rejected the application. In second appeal, the High Court agreed with the first appellate court that the suit had abated in the trial court in its entirety; but disagreeing with the lower appellate court held that as the trial court had directed abatement as against one of the defendants-trespassers, the plaintiff could have made an application for withdrawal of the suit with liberty to institute a fresh suit on the same cause of action. So holding, G.N. Das, J., set aside the judgments and decrees passed by the courts below and permitted the plaintiff to withdraw the suit with liberty to bring a fresh suit on the same cause of action. With great respect, I differ from the aforesaid view of the learned Judge.
10. Abatement of a suit against the deceased defendant takes place when the substitution of the legal representative of the deceased defendant against whom the right to sue survives is not made within the period of limitation. The consequence of abatement on the suit would depend upon the nature of the suit and; the reliefs claimed. To permit the plaintiff to withdraw the suit with liberty to file a fresh suit, whether the abatement of the suit is partial or total, would tantamount to permitting the plaintiff to get round the provision contained in Rule 9 of Order 22 of the Code. The provision would thereby be rendered nugatory. To permit the plaintiff, in such circumstances, to withdraw the suit with liberty to file a fresh suit on the same cause of action would be against the policy of the law. If such were the law, a plaintiff would lie by and faced with the situation that the suit is liable to be dismissed partially or wholly due to abatement for failure to substitute the legal representative of the deceased defendant against whom the right to sue survives within the time prescribed by law make an application for withdrawal of the suit with liberty to file a fresh suit on the same cause of action. That would be putting a premium on the laches and negligence of the plaintiff. It would confer undue advantage on the plaintiff and cause great disadvantage to the surviving defendant and the legal representative of the deceased defendant.
11. By reason of abatement, certain rights and benefits accrue to the surviving defendant and also to the legal representative of the deceased defendant depending on the suit and the reliefs claimed. I can see no reason either in law or equity to deprive the defendant and the legal representative of the rights and advantages 90 gained by the failure of the plaintiff to substitute by permitting withdrawal of the suit with liberty to file a fresh suit on the same cause of action.
12. In Ramesh v. Duo Mehar Bibi, (1936) 40 Cal WN 1019, the sole defendant in a suit for possession died. His legal representatives were not brought on record and the suit abated. Thereafter on an application being made, the plaintiff was permitted to withdraw the suit with liberty to bring a fresh suit. R.C. Mitter, J. held that inasmuch as there was no suit pending upon abatement of the suit against the sole defendant, the trial court could not permit withdrawal with liberty to the plaintiff to institute a fresh suit There is one observation which is of some assistance :
'........The Order granted the plaintiff leave to institute a fresh suit on the same cause of action cannot, in my judgment, take away from the defendants of this suit the valuable rights that had already accrued to them under Order 22, R. 9 of the Code before the said order granting the plaintiff leave was passed.....'
In Seshamma v. Suryanarayana, (1915) ILR 38 Mad 643: (AIR 1914 Mad 170 (2)), there was abatement against a defendant by reason of the failure of the plaintiff to bring his legal representatives on record, within the time allowed by law. The plaintiff then sought leave to withdraw the suit with liberty to institute a fresh suit on the same cause of action, have was granted, A fresh suit was filed against the legal representatives who had not been brought on record in the earlier suit. The other surviving defendants in the earlier suit were left out of the latter suit. Sadasiva Ayyar and Spencer, J. held:
'......When a suit has abated against a particular defendant by reason of his le'al representatives not having been brought on the record within the time limited by law and when the plaintiff thereupon withdraws his suit with permission to bring a fresh suit, such a permission can only empower him to bring the fresh suit against those defendants who were on the record on the date of the withdrawal and not against a defendant who had ceased to be on the record or against the legal representatives of a defendant who was dead at the time of the withdrawal and. whose said representatives had either not been brought on the record or had been removed from the record by an appellate order which set aside the order of the First Court bringing them on record.'
With respect I agree with the learned Judges of the Division Bench that no fresh suit against the legal representatives on the same cause of action can be instituted; but to the extent that their Lordships held that liberty could be granted to file a fresh suit against the surviving defendants. I respectfully disagree. If the abatement of the suit as against the deceased defendant whose legal representatives are not brought on record has no effect on the suit as against the surviving defendants, the plaintiff can as well prosecute that very suit But if abatement affects the suit as against the surviving defendants, it would be against the policy of law to permit him to withdraw the suit to circumvent the consequences which are likely to follow from abatement of the suit for his failure to bring the legal representatives of the deceased defendant against whom the right to sue survives on record.
In Prabhat Chandra Saikia v. Ranjani Bala Devi, AIR 1372 Gau 85, Baharul Islam, J. (as he then was) held that abatement of the suit as against a trespasser-defendant was not a formal defect within the meaning of Order 23, Rule 1 of the Code.
13. I rest my conclusion on a broader reasoning of policy. If the suit with the surviving defendants can be proceeded with, there is no need to grant liberty to institute a fresh suit on the same cause of action. The policy of the law is to avoid multiplicity of proceedings. If the suit cannot be proceeded with by reason of abatement, liberty to institute a fresh suit on the same cause of action should be refused. The deformity suffered by reason of abatement comes neither under 'formal defect', in Clause (a) nor under 'sufficient grounds' in Clause (b) of Sub-rule (3) of Rule 1 of Order 23 of the Code.
14. The revision has no merit and is dismissed. There would be no order as to costs.