Abdur Rahim, J.
1. The 2nd plaintiff is the natural son of the 1st plaintiff and the defendant is the widow of the 2nd plaintiff's adoptive father, who was a nephew of the 1st plaintiff. The suit is brought to recover certain properties from the possession of the defendant on the allegation that the 2nd plaintiff is the adopted son of the defendant's husband. Of the items of properties which the plaintiffs sought to recover from the defendant, one is item No. 76, a house which originally was valued at Us. 200, but which has been found on proper enquiry being made on the objection of the defendant to be worth more than Rs. 6,000. When the proper value of item No. 76 was ascertained, the plaintiffs applied for leave to withdraw their claim with respect to this item with liberty to file a fresh suit afterwards. The District Munsif acceded to this application and it is against that Order that the present petition has been filed.
2. The argument in support of the petition is that the plaintiffs should not have been allowed to withdraw the suit with respect to item No. 76 with liberty to file a fresh suit, inasmuch as this is not a case within the purview of Order XXIII, Rule 1, Civil Procedure Code The reason that is given by the plaintiffs in support of the application is that in any case the defendant will be entitled to residence and that they do not, therefore, want to eject her from this house. They are in fact willing that she should reside there by virtue of her right as widow of the adoptive father of the 2nd plaintiff. Rule 1(2) of Order XXIII says: 'Where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or (6) 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 may...grant the plaintiff permission to withdraw from such suit, etc.'
3. It has been held by a Bench of this Court in Aiya Gounden v. Japan Mandalathipathi Gopoanna Mauradiyar 26 Ind. Cas. 27 : (1914) M.W.N. 832 that the sufficient ground mentioned in Rule 1(2)(b) of Order XXIII, Civil Procedure Code, must be interpreted as being ejusdem generis with the formal defect referred to in Rule 1(2)(a). That being so, can it be said that there-was a defect of that character in this suits If it were a mere question of general discretion I should be prepared to hold that this discretion was rightly exercised by the first Court. But I am bound by the ruling of the Division Bench of this Court above referred to. Therefore, unless it could be said that there was a defect in the suit of a character akin to a formal defect the Order of the District Munsif must be held to be unauthorised by law. It is perfectly true that if the plaintiffs are content to allow the defendant to remain in possession of the house in lieu of her right of residence, they should not be compelled to sue to eject her and if they should not be compelled to eject her from the house at present, I see nothing improper in their conduct in asking for leave to withdraw the suit with, respect to this house. But, having regard to the interpretation that has been placed on Order XXIII, Rule 1, by which I am bound, I cannot say that this was a case in which leave to withdraw was properly granted.
4. I must, therefore, allow the petition and set aside the Order of the District Munsif. The case will be remanded to the District Munsif for disposal in the light of the above observations. The petitioner is entitled to the cost of this petition.
5. This petition follows Civil Revision Petition No. 19 of 1917 and for the reasons contained in the above judgment therein the Order of the lower Court is set aside and the case remanded to the District Munsif for disposal. The petitioner is entitled to the costs of this petition.