1. Defendants 2 to 5 are the sons of the first defendant and the plaintiffs are the sons of the first defendant's deceased brother. The plaintiffs claimed in their plaint that a certain house belonged to their father and that a room in that house had with his permission been occupied by the defendants. Quarrels having arisen between the plaintiffs and the defendants, this suit was filed for the recovery of possession of that room and for an injunction to restrain the defendants from interfering with their possession of other portions of the house. The defendants claimed that they had an equal share in the house. After perusing the written statements the plaintiffs thought it desirable that a fresh suit should be instituted in which wider questions could be raised; and so made an application to the Court under Order 23, Rule 1, Civil Procedure Code, to withdraw the suit, praying for liberty to institute a fresh suit in respect of the same subject-matter. That application was allowed.
2. Order 23, Rule 1 permits the Court to grant liberty to institute a fresh suit with regard to the same subject-matter provided:
(a) that a suit must fail 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 part of a claim.
It has been laid down that (b) must be read as ejusdem generis with (a). There must be something in the nature of a formal defect before permission can be granted to file a fresh suit on the same cause of action. The learned Subordinate Judge's order is a very brief one; the relevant portion of which is:
the plaintiffs contended that they (plaintiffs) should seek a decision on these questions (questions raised in the written statement) in a properly instituted suit ... I would grant them the permission sought.
Nothing is said in this order about the existence of any formal defect, and there does not in fact seem to be any formal defect. It may be desirable that some of the questions raised in the written statement, which were not strictly speaking a part of the suit as framed by the plaintiffs, might be considered in the suit; and some foundation for the consideration of subsidiary points is found in paragraph 11 of the plaint. The learned Judge had however no jurisdiction because of this to grant the plaintiffs liberty to file a fresh suit on the same cause of action. The proper method of securing the wider consideration of the matters raised was by the amendment of the plaint.
3. The order of the lower Court is therefore set aside and permission is granted to the plaintiffs to file an application in the lower Court to amend the plaint. I do not wish to say anything on the merits of such an application, if it be made. The learned Judge will have to consider what the plaintiffs say in support of the application, if they make it, and what the defendants have to say against it. The respondents must pay the costs of the petitioners in this Court.