1. The petitioners seek to set aside the order of the Subordinate Judge of Narasapur, in O.S. No. 26 of 1922, dated the 20th February 1923.
2. The petitioners and counter-petitloner both claimed to be alienees from reversioners to the suit estate. The counter-petitipner filed with his plaint in O.S. No. 26 of 1922 a genealogy showing that Subbarayudu the grandfather of his alienors was son of Rajayya under whom the petitioners claim through another branch. A year and more after filing his plaint, the counter-petitioner put in an affidavit to the effect that Venkiah should be inserted between Rajayya and Subbarayudu. 'The word was omitted by mistake.' It was not a clerical error for the plaint merely copied the recital in plaintiff's document (judging, from the affidavit of petitioners). But the petitioners (who are also suing on the strength of their conveyance by other reversioners) had made it plain that the grandfather of plaintiff's alienors was not Rajayya but Venkayya. It was to avoid this difficulty and not owing to clerical error that plaintiff sought to amend his plaint. The Subordinate Judge who dealt with the petition for amendment in. I.A. No. 744 of 1922 correctly appreciated the point. 'The relationship,' he states 'of each was definitely given in the plaint and in the written statements and because the defendants have produced some documents to show the connexion of the plaintiff's predecessor-in-title to be not true, the plaintiff wants to have it altered. I think this cannot be allowed now.'
3. (The case then proceeded and when the plaintiff attempted to prove the relationship Otherwise than stated in his plaint, the evidence was disallowed by a fresh Subordinate Judge. The plaintiff then applied in I.A. No. 227 of 1923 for review of the order refusing amendment ostensibly because his petition to amend had been obscure but, of course, really because his evidence had been ruled out. The new Subordinate, Judge examined the case and found, quite rightly, that his predecessor had disallowed the amendment on the ground that the plaintiff was only asking for it because, the documentary evidence adduced by the rival claimants showed that Subbarayudu's father was not Rajayya but Venkayya.
4. But on the same day he gave plaintiff leave to withdraw the suit and file a fresh one, holding that it was open to plaintiff to make allegations in the plaint comprehending an alternative case (that Subbarayudu was either son of Rajayya or Venkayya) and the case came within the purview of Order XXIII, Rule 2. Accordingly the decree was passed, against, which the present petition is directed, allowing the plaintiff to, withdraw his suit with leave to bring a fresh one. There is no indication that the Subordinate Judge ever directed his mind to Order XXUI, Rule 1, and considered whether, the suit must fail by reason of some formal defect, or whether there was other sufficient-ground for allowing the plaintiff to institute a fresh suit. The 'defect' of alleging Rajayya to be the father of Subbarayudu instead of Venkatayya was not a formal detect; it went to the root of plaintiff's claim. What then was the other ground which would justify the order? Apparently it was the extraordinary proposition that if plaintiff had known that his first case would be proved false by the counter-petitioners, he might have presented an alternative case which would get over the difficulty. It has long been held that, other sufficient grounds in Sub-clause (b), Order XXIII, Rule 1, must be ejusdem generis as the formal defect in Sub-clause (a) Cf. Kali Prassnna Sil v. Panchanan Nandi 33 Ind. Cas. 670 : 41 C.P 367 : 23 C.L.J. 489 : 20 C.W.N. 1000. Furthermore as is well-summarized in D.F. Mulla's commentary on the C.P.C. (7th Edition, page 678.) the effect of numerous rulings is that the Court has no-power under this rule to grant permission to the plaintiff to withdraw from the suit with, liberty to institute a fresh suit in a case where issues have been joined and the plaintiff fails to produce evidence in support of the issues, or where evidence has been, adduced but the evidence, is not such as, to support the, plaintiff's case the reason is that in. cases of this, character, the suit must fail not by reason of some formal (defect, but on the merits and the apprehension of, failure of the suit cannot be said to constitute a sufficient ground for allowing the plaintiff to institute a fresh suit. The point is succinctly put by Scott, C.J., in Mahipat Shamla v. Nathu Vithoba 4 Ind. Cas. 252 : 33 B.K 722 : 11 Bom. L.R. 1109: 'The Court should not allow a suit to be, withdrawn after the parties are ready for trial if such withdrawal may operate to the prejudice of the defendant.'
5. The order of the Subordinate Judge is, therefore, bad in law, and it is bad in every other respect. He knew the merits of the case, and his predecessor's order thereon, and must have known that in these circumstances an order under Order XXIII, Rule 1, would require a most carefully reasoned justification. I must find that the irregularity of his order is not only material but gross.
6. The counter-petitioner contends that this order need not be set aside because the parties have already embarked on the fresh suit; and the petitioner has unduly delayed the present petition. It seems that he obtained copy on 14th July 1923 and filed this petition on 4th September 1923. Having regard to the general course of litigation in this Presidency, I am not prepared to hold that this delay is inordinate. Each case must be considered on its merits and Bansi Singh v. Kishun Lal Thakur 26 Ind. Cas. 203 : 41 C.P 632 in which the Court declined to interfere establishes no, absolute rule. The same remark applies to Jhunku Lal v. Bisheshar Das 46 Ind. Cas. 71 : 40 A.P 612 : 16 A.L.J. 495. It is always a nice question whether a Court which has acted erroneously has acted irregularly. Had the Subordinate Judge addressed himself to the question whether the permission to withdraw was to be granted on account of a formal defect, and had then erred in his estimation of what defect could be described as formal, the ruling in Jhunku Lal v. Bisheshar Das 46 Ind. Cas. 71 : 40 A.P 612 : 16 A.L.J. 495 might apply. But the Subordinate Judge has granted permission for no reason contained in the Statute but for one of his own imagining that if the plaintiff knew that the defendants would, defeat his first plea he might have provided an alternative.
7. Accordingly I allow this petition with costs and reverse, the decree in O.S. No. 26 of 1922 on the file of the Subordinate Judge of Narasapur. Presumably from what has already occurred (though this remark must not prejudice the trial) O.S. No. 26 of 1922 will fail for want of evidence, so it will be sufficient if petitioners pay into Court the amount of costs which they have already received under, the decree now reversed, to be paid out to the successful party in O.S. No. 26 of 1922. Time for payment six weeks.