S. Rangarajan, J.
(1) The petitioner has applied under Section 115 of the Code of Civil Procedure, 1908 to quash the order dated 22.7.72 passed by the Senior Sub-Judge Delhi (Shri H. K.S. Malik) granting permission to the respondent (plaintiff), in appeal' to withdraw the suit with liberty to file fresh suit regarding the subject matter of the suit under Order 23 Rule 1 of the Code of Civil Procedure.
(2) The respondent (plaintiff) had filed a suit for a permanent injunction to restrain the petitioner (defendant) from using a particular portion of the house contending that the portion was not part of the tenancy. The suit was, however, dismissed on two grounds, namely, (1) that a suit for mere injunction, without a prayer for possession, did not lie; and (2) that the plaintiff had failed to prove that the same was not part of the tenancy. As against, the said decision an appeal was preferred by the respondent who during the hearing of the appeal conceded that either the plaint may be amended, including the prayer of possession or she be permitted to withdraw the suit with liberty to file, a fresh suit on the same cause of action with the leave of the court. The learned Senior Sub- Judge, who heard the appeal, considered that in view of the lack of a prayer for possession it is a fit case where the respondent (plaintiff) should be given permission to withdraw the suit With liberty to file a fresh suit regarding the subject matter of the suit. There was also some needless discussion regarding whether the finding of the trial Court had to be set aside the very fact of granting permission to file a fresh suit on the same cause of action after withdrawing the suit would necessarily entail the setting aside of the decree of dismissal; a direction was however given that the finding was set aside.
(3) The first question for consideration is whether permission to withdraw the suit with liberty to file a fresh suit on the, same cause of action could be granted by the appellate court. There was no serious argument addressed to me on this question obviously on account of the position being firmly established today. In this connection it is sufficient to refer to the decision of the Full Bench of the Madras High Court in Balide Kamayya v. Pragada Papayya A.I.R. 1918 Mad 1287 where it was held that it was open to the appellate court, in proper cases, without reversing the decree of the lower court to give to the plaintiff leave to withdraw with liberty to file a fresh suit. A previous decision to the contrary of the Madras High Court in Charagudi Chinna Katayya v. Raja Varadaraja Appa Row A.I.R. 1914 Mad 339 was overruled. In the Full Bench case also the order of the District Judge, at the hearing of the appeal, allowing the suit to be withdrawn with liberty to file a fresh suit on the same cause of action, was construed as one setting aside the decree of dismissal. In this very process what is set aside is the decree of dismissal and not merely the findings alone. The above Madras Full Bench holds that even without any express order setting aside the decree of dismissal the mere grant of permission to withdraw the suit would tantamount to setting aside the decree of dismissal by the trial court. A division Bench of the Allahabad High Court in Ganga Ram v. Data Ram I.L.R. (1886) All 82, also pointed out that in such cases the Judge's order giving permission to withdraw the suit and giving liberty to file suit obviously meant that the decree of the trial court was set aside even if' there were no express words to that effect. The 'setting aside' of the findings and 'remand' of the suit referred to by the learned. Senior Sub-Judge mean nothing more than that that the decree of dismissal passed by the trial court was set aside. I need hardly emphasize the need for Judicial Officers before passing an order to look into the appropriate provision of the Code of Civil Procedure and the leading case, if any, on the subject.
(4) The more important question that was argued on behalf of the petitioner was that the failure to ask for the relief of possession was not a 'formal, defect' within the meaning of Order 23 Rule 1 (2) (a) of the Code of Civil Procedure and that in the absence of a format defect permission to withdraw the suit with liberty to file a fresh suit on the same subject matter should not have been granted Order 23, Rule l, is :(.........)
(5) The first aspect for consideration is whether the expression 'other sufficient grounds', in Rule 1 (2) (b) has to be read ejusdem generis with the expression 'formal defect' employed in Order 23 Rule 1 (2) (a). My attention has been invited to two decisions of this Court by S.N. Andley, J, (as his Lordship then was) in Ram Chandcr v. Vashist Kumar 1973 RLR 311 and Amanat Rai Jain v. Lilawati (C. R. 357. of 1970 decided by T.P.S. Chawla, J on, 11.8.72) in both of which no Opinion was expressed on this question. It was held that facts in those two eases .did not require them to go into this aspect. I have not been referred to any other authority of this Court expressing any opinion on this question. I take it, thereforee, that the matter is rest integra so far as this Court is concerned.
(6) The English cases have been referred to and summarised in Craies on Statute Law (6th Ed., pp 178). The rule was enunciated by Lord Campbell in an early case, R.V.Edmunson 1959) 28 L.J.M.C. 213 as follows :-
'Iaccede......to the principle laid down in all the cases which have been cited, that where there are specific words, the general. words must be confined to things of the same kind as those specified'.
IThas to be applied with caution and not pushed too far; it is a mere presumption, in the absence of other indications of the intention of the Legislature (P. 181). Asquith, J. pointed out in Alien vs. Emmerson (1944 K.B. 362 that the tendency of the modem authorities is to attentuate the application of the ejusdem generis rule and cited Ander- son v. Anderson 1195 1 Q. B. 349 in this context. In order to invoke the rule there must be a genus or category; the specific words must apply not to different objects of widely different .character but to something which could be called a class or an object (vide Tillmans & Co. v. S.S. Krutsford (1908) 2 K.B. 385. There is no room for the application of this doctrine unless at category can be found, where the words are clearly wide in their meaning they ought not to be qualified on the ground of their association with other words (per Lord Halsbury in Provost, etc. of Glasgow v. Glasgow Tramway Co. (1898) A.C. 631.
(7) There is a conflict of judicial opinion in this country oh this question. The decisions are far too numerous it does not appear necessary to refer to them. To the extent I have seen the decisions which hold the view that the rule of ejusdem generis applies do not appear to have noticed that the expression 'other sufficient grounds', occurs. in clause (b) whereas the expression 'formal defect' occurs in clause (a). Even many of the decisions which bold the contrary view do not appear, to: have specifically noticed the fact that the relevant expressions appear in separate clauses; I shall, thereforee, content myself with those decisions, to the extent I have been able to notice them, which specifically deal with the relevant expressions occurring in separate, clauses.
(8) In Atul Krushna Roy V. Ramkishore Mohanty : AIR1956Ori77 Panigrahi, C.J.of the Orissa High Court pointed out that doctrine of ejusdem generis should be restricted only to cases where the generic words follow specific words 'in' the very same clause or sentence'. He further observed that where the object of the legislature has been clearly expressed and the intention is to express the scope of the general words a wider meaning should be given to the succeeding words. In Fateh. Singh v. Mst. Bega A.I.R. 1964 J&K; 18. a Division Bench of the Jammu & Kashmir High Court has also pointed out that the rule of ejusdem generis would not apply if the words concerned are not in the same sentence or in the same clause. Specific stress has been laid by Fazi Ali, J. who spoke for the Bench, relied for his conclusion on the words employed occurring in different sub-clauses and not being associated or coupled together. B. Venkataswami, also noticed this feature in Basappa Tippanna Durgannavar v. Bhimappa Ramappa Durgannavar AIR 1969 Mys. 141
(9) Being a matter of practice and procedure the practice of the concerned area is important. In this view, I would like to refer to a decision of the Division Bench of the Lahore High Court in Gurprit Singh v. Punjab Government A.I.R. 1946 Lah 429 where it was specifically held that the relevant words in clause (b) of rule 1 (2) of Order 23 Civil Procedure Code . could not be read ejusdem generis with those in clause (a). Even in this decision there was no specific reference by Din Mohammad, J., who spoke for the Bench, to the relevant words appearing in two separate clauses. The Full Bench decision of the Madras High Court was relied upon to hold that such leave to withdraw with liberty to institute a fresh suit in respect of the -same subject matter may be granted at the appellate stage also.
(10) It was urged by Shri S. R. Gupta, learned counsel for the petitioner, that in the circumstances, of this case the appellate court should not have exercised its discretion in granting the impugned permission It is not proper for a court in revision to go into the matter of mere exercise of discretion except where it is seen that the learned Judge who passed the impugned order misdirected himself and exercised a jurisdiction which he did not have. It is also true that at the appellate stage leave would not be granted to withdraw a suit and file a fresh suit on the same subject matter when the defendant had acquired any vested or substantive right. There is no such feature present in this case. All that is stated for the petitioner here is that he will lose the benefit of finding in his favor, as to whether the disputed portion was part of the tenancy or not if the suit it was allowed to be withdrawn which is just what will happen in any case where the appellate court choses to grant permission to withdraw the suit with liberty to file a fresh suit at the stage of appeal. This point, thereforee, does not have to be considered separately.