1. The plaintiff is a minor represented by a next friend; and she has brought this suit as a reversioner against the widow of the last male owner, in possession, alleging acts of waste and mismanagement. A number of specific acts of waste and mismanagement were set out in the original plaint, which was filed on 2nd October, 1933. In 1934 an application was put in by the plaintiff to be allowed to amend the plaint on the ground that fresh acts of waste had come to the notice of the next friend. That petition was allowed in the High Court. In 1938, another application was put in to amend the plaint, alleging further acts of waste and mismanagement. That petition was refused on the ground that it was very belated and that the facts alleged must have come to the notice of the plaintiff's next friend long before the time alleged. The order dismissing the second application to amend was brought to the High Court in revision; and the revision petition was dismissed. The plaintiff has now filed an application to withdraw the suit with permission to file a fresh suit on the same causes of action. That petition was allowed and the defendants have preferred this revision petition against that order.
2. Permission can be given to a plaintiff to file a fresh suit on the same cause of action where, in the words of Order 23, Rule 1(2), the Court is satisfied (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 consistently held by this Court that the sufficient grounds referred to in Rule1(2)(b), must be ejusdem generis with the ground specified in Rule 1(2)(a), that is, there must be some formal defect. Sadasiva Aiyar, J., sitting with Oldfield, J., in Kannusdmi Pillai v. Jagathambal : (1918)35MLJ27 , doubted whether this was the case; but Oldfield, J., reviewing the previous decisions of this Court, was satisfied that that was the rule. In all the Madras cases since then, as well as in the decisions of other High Courts, it has been held without exception that the grounds in Rule 1(2)(b) must be, if not ejusdem generis with the ground in Rule 1(2)(a), at any rate analogous to it. Palikanji Chettiar v. Krishna Aiyar (1925) 23 L.W. 525, Venkataramayya v. Veerasamt (1924) 21 L.W. 282, Niamathulla Khan Sahib v. Abdul Razack Sahib (1924) 22 L.W. 535. Cherukuri Nagamma v. Cherukuri Lakshminarasu : AIR1928Mad1085 , Ramrao Bhagwantrao v. Babu Appanna Samage (1939) 42 B.L.R. 143 and Jumma v. Ram Sahai : AIR1934All137 , are among the cases quoted, where this principle has been laid down and confirmed. No cases to the contrary have been cited. It is true that a Bench of this Court in Krishnan Somayajipad v. Raman Nair : AIR1929Mad36 allowed an amendment of a plaint where the defect was apparently not a formal one; but the question whether such an amendment could be allowed or not, did not there come up for decision and the point was not considered. In Doraisami Pillai v. Thungasami Pillai (1903) 14 M.L.J. 159 : I.L.R. 27 Mad. 377, where a suit of a minor was withdrawn because the next friend was not possessed of sufficient funds to further conduct the suit, the Court set aside the order dismissing the petition to review the order of dismissal of the suit on the ground that the minor ought not to be prejudiced by making it impossible for him to agitate a genuine grievance merely because his next friend did not have any money. The suit was restored. Whether or no an application was put in to withdraw the suit with permission to file a fresh one we do not know; but that was a case in which it might be said that there was a formal defect or something analogous to it.
3. The principal argument of Sampath Aiyangar for the respondent is that this Court has no jurisdiction to interfere with the learned Subordinate Judge's order. He very rightly points out that the mere fact that the lower Court made a mistake in law is not a sufficient ground for interference by this Court. I also with respect agree with the learned Judges in Balthazar & Son v. E.M. Abowath I.L.R.(1919) Rang. 1 : 63 I.C. 521 and Jhunku Lal v. Bisheshar Das I.L.R.(1918)All. 612, that if the lower Court had considered whether there was a formal defect, or not and had decided it wrongly, this Court should not interfere in revision - although Mr. Sampath Aiyangar has not been able to find any Madras decision that goes so far. I am, however, satisfied that not only did the lower Court act without jurisdiction in granting leave in a class of case in which he had no power to grant leave to file a fresh suit; but that he never purported to consider whether he had jurisdiction or not. If he had been aware of the fact that he could only grant leave to file a fresh suit if there had been something like a formal defect and he had come to the conclusion that there was only a formal defect in the plaintiff's case, then I would have doubted whether I had jurisdiction to interfere with the lower Court's order. The petition asking for permission to withdraw with permission to file a fresh suit is very vague in its terms; and the learned Subordinate Judge does not really attempt to consider whether a case had been made out for granting permission or No. He merely says:
It is stated in the affidavit that numerous matters came ,to be known to plaintiff's next friend by proceedings taken after the suit was instituted and that these have to be shown in the plaint. Under these circumstances, I hold that plaintiff should be given leave to withdraw the suit regarding A schedule properties with liberty to sue afresh.
4. It is therefore seen that the learned Subordinate Judge did not indicate any ground for granting permission; and there was no finding that there was a defect in the suit which prevented the plaintiff from going on. This is therefore a case in which this Court can interfere in revision.
5. The remaining question is whether this Court should interfere in revision. In the many cases cited above, the learned Judges of this Court felt that they ought to interfere. No doubt in some of those cases the case for granting permission was even weaker than in the present case. Evidence had been let in or there was some action on the part of the plaintiff which amounted to a fraud on the Court. But as Order 23, Rule (1) lays down a principle which is an exception to the general rule that a fesh suit cannot be filed on the same cause of action, it should be exercised very sparingly. In the present case, the object of the plaintiff's next friend in asking for permission to withdraw the suit and to file a fresh one is undoubtedly to circumvent the orders passed by the lower Court on the second amendment application and of this Court in revision. It would be improper, I consider, to allow a fresh suit to be filed under these circumstances. As pointed out in the order on the amendment application, the plaintiff can file a fresh suit on such causes of action as have arisen since the filing of his earlier suit, and evidence regarding them may even be relevant in the present suit, although I do not purport to decide that point. I am therefore satisfied that this is a proper case for interference.
6. The petition is therefore allowed with costs in. this Court and in the Court below and the suit restored. This necessitates that the order of the lower Court that the plaintiffs should pay the costs of the suit to the defendants should be cancelled. It is ordered accordingly.