Madras High Court
A.P.S. Bahurudeen And Anr. vs Antony And Ors. on 7 November, 1990
Equivalent citations: (1992)2MLJ563
ORDER Srinivasan, J.
1. This is an application for permission to withdraw the suit out of which the second appeal has arisen with liberty to file a fresh suit on the same cause of action. The petitioners filed O.S. No. 392 of 1980 on the file of District Munsif, Manamadurai for declaration that the suit property is a wakf property and a consequential injunction restraining the respondents from in any way interfering with the peaceful possession of the plaintiffs. The suit has been filed in a representative capacity by the plaintiffs for themselves and as representatives of Muslim residents of the village of Rajagopuram, Sivaganga Taluk, Ramnad District. Defendants 1 and 2 were impleaded as representatives of the Christian community residents of the said village. The third defendant was the Tamil Nadu Wakf Board. The courts below negatived the claim of the petitioners and dismissed the suit. One of the grounds on which the suit has been dismissed is that the State Government is a necessary party and the non-joinder of the Government is fatal to the suit. On the merits also, the courts found the petitioners failed to establish their claim that the suit property is a wakf property in their possession. The concurrent judgments of the courts below were challenged in the second appeal.
2. The second appeal was heard at some length and on 11.9.1990 the arguments concluded and I directed the matter to be posted for judgment on 14.9.1990. On that date, a representation was made by learned Counsel for the petitioners that he had advised his clients to withdraw the suit and the matter was being considered by the members of the community. He prayed for an adjournment. I adjourned the matter to 21.9.1990. There were some subsequent adjournments at the instance of the petitioners and on 19.10.1990 the present petition for withdrawal was filed. The prayer as it stood at that time was for permission to withdraw the second appeal with liberty to file a fresh suit on the same cause of action. When the matter came up on 24.10.19.90 for orders, learned Counsel for the petitioners realised the mistakes in the prayer and requested for permission to file a supplemental affidavit and correct the prayer in the petition. That was granted and the matter was posted to 26.10.1990.
3. The affidavit filed in support of the petition sets out two grounds in support of the prayer for withdrawal of the suit with liberty to file a fresh suit. The first ground relates to the non-joinder of the Government. It is stated in the affidavit that the petitioners were under the impression that the Government was not a necessary party, as the Government did not object to their possession and enjoyment of the suit property. It is alleged that the petitioners are now advised that the Government should be impleaded as a party, to the suit. The other ground is that the petitioners have been able to obtain four material documents during the pendency of the second appeal which would have considerable bearing on the issues in the suit and in order to produce all the relevant evidence and have a trial, it has become necessary for them to withdraw the suit and file a fresh suit. In the course of arguments learned Counsel for the petitioners added a third ground. He submitted that as the prayer for injunction in the suit was made as a consequence to the prayer for declaration, the petitioners are not in a position to get the relief of injunction on the strength of their possession without reference to the title to the property. According to learned Counsel, the plaint suffers from a formal defect inasmuch as the prayer for injunction was made as a consequential one instead of it being an independent one. The contention of learned Counsel for the petitioners is that the present suit suffers from formal defects such as non-joinder of parties and inarticulate framing of the prayers. It is also contended that there are other sufficient grounds in this case to permit the withdrawal of the suit and filing of a fresh suit as the petitioners have been able to get hold of material documents, the existence of which was not previously known to them.
4. Per contra, learned Counsel for the respondents contended that non-joinder of a party is not a formal defect and the discovery of the alleged material documents is not a ground for permitting the suit to be withdrawn. Learned Counsel contended that the documents have been filed along with a petition to accept them as additional evidence in the second appeal and they do not help the petitioners in any manner to prove their case on merits. Even if the petitioners had no knowledge of the documents previously, that would not enable them to withdraw the suit at the second appeal stage in order to have a fresh trial with more evidence. It was also argued that the alleged defect in the framing of the plaint in the prayer paragraph is not a defect at all. The relief of injunction has been prayed for as a consequence to the relief of declarations. It was argued that two courts have considered the case on merits and held against the petitioners and if they are permitted to withdraw this suit and file a fresh suit, it would affect considerably the rights vested in the respondents. It was also argued that the only ground on which a suit could be permitted to be withdrawn is that it suffers from a formal defect or defects analogous to it.
5. Counsel on both sides referred to the rulings of this Court as well as other courts laying down the law on the subject of withdrawal of suits at the appellate stage. The relevant provision in the Code of Civil Procedure is found in Order 23, Rule 1. It is sufficient for the purpose of this case to refer to Sub-rule (3) which reads as follows:
(3) where the court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are 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, on such terms as it thinks fit, grant the plaintiffs permission to withdraw from such suit of such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim." Though the Rule refers only to a suit, by virtue of Section 107(2) of the Code of Civil Procedure, an appellate court is also empowered to permit withdrawal of the suit at the appellate stage. A Full Bench of this Court in Balide Kamayya v. Pragada Papayya I.L.R. 40 Mad. 259 : 5 L.W. 558. (F.B.), held that it is open to an appellate court in proper cases, when reversing the decree of the lower court, to give the plaintiff leave to withdraw the suit with liberty to file a fresh suit.
6. It is now well settled that permission to withdraw a suit with liberty to file a fresh suit is governed by Order 23, Rule 1(3)(f) the Code of Civil Procedure only and the court is bound to function within the four corners of the Rule. The Sub-rule comprises of two parts. The first part found in Sub-rule (3)(a) refers to a suit which must fail by reason of "some formal defect', while the other part in Sub-rule (3)(b) speaks of 'sufficient grounds' for allowing the plaintiff to institute a fresh suit. Divergent views have been expressed as to whether "sufficient grounds" found in Clause (b) should be read ejusdem generis some formal defect found in Clause (a) or independent of Clause (a) of Order 23, Rule 1(3) of the Code of Civil Procedure. One view is that the words "sufficient grounds" have been used by the Legislature ejusdem generis with "formal defect". Another view is that "sufficient grounds" in Sub-rule 3(b) need not be "formal defect" and they must be given a wider meaning and scope. A third view which is in between the two extremes has also been expressed that 'sufficient grounds' should mean grounds analogous to formal defects though not of the same genus.
7. The earliest case on the subject which is cited very often is Robert Watson and Company v. The Collector of Zillah Rajshahye 13 M.I.A. 160. In that case, a suit to set aside an auction sale of a Putnee Talook for arrears of rent, under Bengal-Regulation VIII of 1819, was dismissed for want of evidence on the part of plaintiffs, with a reservation by the court, that the order made was not to be a bar to the plaintiff or any other person who might substantiate their rights, from proceeding to recover. On a fresh suit by the same parties for the same matter, it was held that the reservation was of no effect and the decision in the former suit was a bar to the latter suit as res judicata "The Privy Council stated the law thus:
We have not been referred to any case, nor are we aware of any authority which sanctions the exercise by the County Courts of India of that power which courts of Equity in this Country occasionally exercise, of dismissing a suit with liberty to the plaintiff to bring a fresh suit for the same matter. Nor is what is technically known in England as a non-suit known in those courts. There is a proceeding in these courts called a non suit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit, but that seems to be limited to cases of non joinder either of parties or of the matters in contest in the suit, to cases in which a material document has been rejected because it has not borne the proper stamp, and to cases in which there has been an erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form, but Their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce. In support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them.
It is to be noted that Courts in England granted permission to bring a fresh suit only in cases where the suit failed by reason of some point of form and not in a case where a party failed to produce the relevant evidence and got the suit dismissed on merits.
8. The proposition was reiterated by the Privy Council in Charles, J. Willis v. The Central Railway Company of Canada A.I.R. 1914 P.C. 249, in the following passage:
It cannot be a matter of right that a plaintiff having put in issue damages already accrued and having attempted to prove them and failed should be at liberty to bring a fresh action in respect of them.
9. In Aiya Koundan v. Jagan Mandalathipathiar, Gopanna Marudiar 27 M.L.J. 480:1 L.W. 726, a Division Bench comprising of Justice Oldfield and Mr. Justice Seshagiri Aiyar held that 'sufficient grounds' in Clause (b) must be ejusdem generis with formal defect' in Clause (a). However, the Bench observed as follows:
But whether or not this interpretation of the phrase "sufficient ground" be adopted, we must hold that his discretion was not exercised judicially, since it was exercised inspite of the defendants' opposition to condone defects in the plaintiff's conduct of his case, which were due entirely to his own default and for which no excuse was attempted.
Thus, the Bench did not rely upon the proposition of law for the purpose of deciding that case.
10. That was pointed out and taken advantage of by Justice Sadasiva Ayyar in Kannusami Pillai v. Jagathambal I.L.R. 41 Mad. 701. That case is also decided by a Division Bench to which Justice Oldfield was a party Referring to the ruling in Aiya Koundan v. Jagan Mandalathipathiar, Gopanna Marudiar 27 M.L.J. 480 : 1 L.W. 726, Justice Old-field expressed his disinclination to reconsider the principle that sufficient grounds should be ejusdem generis with formal defect. The learned Judge held on the facts that the order of the District Munsif was not one passed in the exercise of judicial discretion. However, the other learned Judge, Justice Sadasiva Ayyar entered into a detailed discussion as to whether 'sufficient ground' should be read ejusdem generis with 'formal defect'. It is worthwhile obstructing the relevant passage:
This doctrine of ejusdem generis has, in my humble opinion, been pushed too far in some of the English cases:
(a) Where the generic words follow specific words in the very same clause of sentence, (b) where the specific words are all of the same genus and not of different genra and (c) where the general object of the Act is not clearly expressed and the intention of the statute is patently opposed to giving the wider meaning to the succeeding words, then alone in my opinion the meaning of the general words ought to be restricted as coloured by the preceding specific terms. New as regards Order 23, Rule 1(old Section 373), I find that the expression "formal defect occurs in Clause (a) of Sub-section (2) in a separate sentence relating to the whole suit failing, whereas the expression "other sufficient grounds" occurs in Clause (b) which contemplates cases where the suit may not wholly fail but the plaintiff might be put to great inconvenience if he is not allowed to withdraw, which contemplates again cases where only a part of the claim may fail in that same suit if he is not allowed to withdraw with liberty to bring a fresh suit for that part and where if he is not given such permission, he might be precluded also from bringing a separate suit therefore. Further Clause (a) does not mention several things which could be brought under one genus, but it refers to a single class of things as "formal defect" while Clause (b) refers to "other sufficient grounds,". There is nothing again clearly indicated in the section itself from which we could infer that the legislature intended to allow withdrawal with permission only in the cases where the suit was led by reason of formal defect or something analogous to a formal defect. Thus in R. v. Rayne (1866) L.R. 1 C.C. 27, it was held that an Act which made it penal to convey to a prisoner in order to facilitate his escape "any mask, dress or disguise or any letter or any other article or then, did not intend to restrict the meaning of the general terms "any other article or thing" by the particular words "disguise or letter" and that therefore a crowbar was also included under the expression 'other article or thing. See also Shillito v. Thomson (1875) L.R. 1 P.B.D. 12, R. v. Edmudson (1959) 2 E. and E. 77, The Queen v. Sprafley (1856)6 E. and B. 363, Lowther v. Bentinck 1974 L.R. 19 Eq.C. 166. In Watson v. The Collector of Rajashahye, 13 M.I.A. 160, the first suit in which liberty to bring a fresh suit was given was instituted in 1956 and decided in 1957 even before the enactment of the first Civil Procedure Code of 1859 (See Section 97 of that Code where the provision as to withdrawal appears), the suit was again not allowed to be withdrawn, but it was dismissed for want of sufficient evidence and then the Judge said that his order dismissing the suit was "not intended to bar the plaintiffs from proceeding again as if the action had not been brought". The remarks of their Lordships of the Privy Council at page 170 mainly dealt with the procedure of the Courts of Equity in England as distinguished from other courts even in England and could have no reference whatever to the powers of Indian Courts under the provisions of the Civil Procedure Code. I therefore with the greatest respect feel myself unable to agree with the dicta of Mukherji, J., in Kharoa Company Ltd. v. Durga Charan Chandra (1910) 2 C.L.J. 45 and Mabulla Sardar v. Rani Hemangani Debi (1910) 2 C.LJ. 512, that other sufficient grounds" means grounds analogous to a "formal defect". Suppose a case like this; A sues B on a mortgage bond for sale of B's family house within three years of its execution. It is found that it would ruin B's credit and health to have a decree for sale of his dwelling house passed just then and as the security is good and as A has nineyears more to sue and as he was paid up his costs, he applies at the request of B and of mutual friends to withdraw that suit with liberty to bring a fresh suit five years afterwards if the money be not paid up meanwhile. Even such an application would have to be refused if the expression "other sufficient grounds" or to something analogous to "formal defect". Again in Lakshminarayana Tentri v. Ramachandra Tentri (1918)34 M.L.J. 71 at p. 75, Mr. Justice Abdur Rahim following Lutawan v. Lachya (1914) I.L.R. 36All. 69, refused to apply the doctrine of ejusdem generis for interpreting the word "otherwise invalid" in Rule 15(c) of Schedule II of the C.P.C. on the ground that the intention of the legislature was to allow an attack on the validity of an award on all other grounds besides those mentioned in the earlier clauses. I think that similar reasons apply to give a wide meaning to words "other sufficient grounds" in Order 23, Rule 1, Clause (b), Kharda Company Ltd. v. Durga Charan Chandra (1910) 2 C.L.J. 45 and Mabulla Sardar v. Rani Hemangani Debi (1910) 2 C.LJ. 512 and Burathagupta Pentadep v. Thurulapani Rajamma (1911) 1 M.W.N. 105, Mahipati v. Muthu (1990) I.L.R. 33 Bom. 732, Hriday v. Akshai (1917) 25 C.LJ. 454, Ramachandra Doss v. Rachanna Fakir (1916) 35 I.C. 843 and Aiya Koundan v. Jagan Mandalathipathian (1914) 27 M.L.J. 480 : 1 L.W. 726, might have been supported on other grounds and in fact, so far as the cases in this Court are concerned, namely. Burathagupta Pentader v. Thurlapatti Rajamma (1911) 1 M.W.N. 105, and Aiya Koundan v. Jagan Mandalathipathian (1914)27 M.L.J. 480 : 1 L.W. 726, they were supported on such other grounds principally Mr.Justice Krishnaswami Ayyar says for instance in Bhurathagupta Pentade v. Thurlapatti Rajamma (1911) 1 M.W.N. 105, "But even apart from that", that is, the interpretation of the word 'other' in Clause (b) of Order 23, Rule 1, "that mere inability of the party to prove her case does not appear to me to be a sufficient ground for giving her leave to institute a fresh suit". So also Mr.Justice Oldfield says in Aiya Koundan v. lagan Mandalathipathian (1914) 27 M.L.J. 480 : 1 L.W. 726. But whether or not this interpretation of the phrase 'sufficient grounds' be adopted, we must hold that this discretion was not exercised judicially.
With respect, I agree with the reasoning of the learned Judge, However, the learned Judge proceeded to hold on the facts of the case that even if the principle laid down in Aiya Koundan v. Jagan Mandalathipathian (1914) 27 M.L.J. 480 : 1 L.W. 726, was applied, the District Munsif had acted with material irregularity in not exercising the judicial discretion and that his order was rightly not aside by a single Judge of this Court. Consequently, both the Judges concurred in dismissing the Letters Patent Appeal which had come before them.
11. In Sai Mahakore and Ors. v. Shankelchand Shukkabai Saha and Anr. A.I.R. 1935 Bom. 26, Beaumont, C.J., held that there is no scope for applying the ejusdem generis rule. He observed as follows:
To my mind the language of the Rule is quite plain, and there is no scope for the introduction of the ejusdem generis Rule. The court must be satisfied either that the suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the order asked for. If the sufficient grounds with Clause (b) are to be analogous to the grounds specified in Clause (a), it would seem that Clause (b) must be confined to cases in which the court thinks that the suit must fail and on that reading Clause (a) would deal with suits which fail for some formal defect, and Clause (b) with suits which must fail for some defect which is not formal, but is of a similar nature. It seems to me that to read the clause in that way is to ignore the plain language in which it is expressed. I have no doubt whatever that Clause (b) is not limited to cases in which the court thinks that the suit must necessarily fail. There may be other sufficient grounds on which it is proper to allow the plaintiff to withdraw his suit. No doubt the two clauses must be read together, and one has in Clause (a) an illustration of the sort of reason which the legislature thought would be sufficient, and in that way Clause (a) may, to some extent, limit the generality of the words in Clause (b), but I am not prepared to go further than that in limiting the very Sub-clause (b). I observe that the view I take of the rule was also taken by Martin, J. as he then was in the case of Narandas Raghunathdas v. Santilal Bholabhai I.L.R. 45 Bom. 377: A.I.R. 1921 Bom. 267.
12. A Full Bench of the Bombay High Court concurred with the view taken by Beaumont, C.J., in the above case and held in Ramrao Bhaghantrao Inamdar v. Babu Appanna Samach A.I.R. 1940 Bom. 121, that the grounds contemplated in Clause (b) must be analogous to a formal defect mentioned in Clause (a). The relevant passage in the judgment of the Full Bench reads thus:
The learned Chief Justice however has added that the two clauses must be read together" and one has in Clause (a) an illustration of the sort of reason which the Legislatures through would be sufficient, and in that way. Clause (a) may to some extent, limit the generality of the words in Clause (b) with great respect we concur in this view, which is exactly what we mean by saying that Clause (a) is illustrative of the grounds" referred to in Clause (b) and although the "grounds" need not be ejusdem generis with the grounds mentioned in Clause (a) they must be "at last analogous" to it. The ground in Clause (a) requires that the suit must fail by reason of some formal defect whereas the grounds contemplated in Clause (b) need not necessarily be fatal to the suit, but must be analogous to a formal defect. To determine what grounds are analogous to formal defects, it is necessary to know what defects, are to be deemed formal." The instances of defects "of form" cited by the Privy Council in Robert Watson and Company v. The Collector of Zillah Rajshahye 13 M.I.A. 160, include non joinder of parties or of the matters in suit, rejection of a material document for not having a proper stamp and the erroneous valuation of the subject matter of the suit. This shows that the expression "formal defect" must be given a wide and liberal meaning, and must be deemed to connote every kind of defect which does not affect the merits of the case, whether that defect be fatal to the suit or not.
13. In Jagadambal v. Sundarammal A.I.R. 1941 Mad. 46, Horwill, J. held that the grounds in Clause (b) must be, if not ejusdem generis; with the ground in Clause (a), at any rate analogous to it.
14. In Sivagaminatha Pillai v. S.A. Venkataswami Naicker A.I.R. 1949 Mad. 295:61 L.W. 647, Yahya Ali, J. felt it unnecessary to consider the question whether the expression "other sufficient grounds" in Clause (b) was ejusdem generis with the expression "some formal defect" in Clause (a). On the facts of the case, the learned Judge held that an appreciable portion of the material evidence had been adduced and the plaintiff found the same to be insufficient to establish the case propounded by him in the plaint and in such a situation if he was allowed to institute a fresh suit on the same subject matter, it would be contrary to the letter as well as the spirit of the rule.
15. In Venkata v. Himmakayala A.I.R. 1949 Mad. 457, Panchapakesa Ayyar, J. held that a court allowing a party to withdraw from a suit with liberty to file a fresh suit or a late stage when arguments also had been addressed in appeal, was bound to give satisfactory reasons falling within Order 23, Rule 1(2) of the Code of Civil Procedure, He set aside the order of the court below which has not supported by any reason and remanded the application for fresh disposal.
16. In Varadarajulu Naidu v. Narayamswami Naidu (1949)2 M.L.J. 457, Horwill, J. held that there must be something in the nature of a formal defect before permission could be granted for withdrawing a suit and filing a fresh suit on the same cause of action.
17. In The Asian Assurance Co. Ltd. v. Madholal Sindhu , a Division Bench presided by Chagla, C.J. held that non-joinder of parties is not a formal defect contemplated by Order 23, Rule 1(2) of the Code of Civil Procedure.
18. In Veeraswami v. Lakshmudu , Panchapakesa Ayyar, J. held that insufficient evidence or a false genealogical table or even the fraud of plaintiffs vakil will not fall under Clause (a) or Clause (b) of Order 23, Rule 1(2) of the Code of Civil Procedure, being neither a formal defect not "other sufficient grounds". The learned Judge also observed that there is nothing in law forcing a court to give reasons when refusing permission, though it must give reasons when granting permission.
19. A Full Bench of the Allahabad High Court in Abdul Ghafoor v. Abdul Rahman , held that the words "other sufficient grounds" in Clause (b) covered grounds analogous to those mentioned in Clause (a) and if the court purports to exercise discretion under Clause (b), but the grounds are not analogous to the defects referred to in Clause (a), the decision even though judicial can be interfered with under Section 115 of the Code of Civil Procedure.
20. In Taruchand Bapuchand v. Gaibihaji Ahmed Bagwan , Gajendragadkar, J. held that the two Clauses (a) and (b) of Order 23, Rule 1(2) have to be read by applying the rule of ejusdem generis and a cause which is sufficient within the meaning of Order 23, Rule 1(2)(b) must be similar or alike to the cause mentioned in Order 23, Rule 1(2)(a) of the Code of Civil Procedure. The learned Judge has not referred to the judgment of the Full Bench of that court in Ramrao Bhagwan Rao Inamdar' case A.I.R. 1940 Bom. 121.
21. In Sambanda Naicker and Ors. v. Ranganay-aki Animal , Basheer Ahmed Sayeed, J. held that a wider discretion is given to the courts under Clause (b) and the two clauses deal with different situations and not with similar or analogous situations. Referring to the provisions in the Code of Civil Procedure of 1859, the learned Judge observed as follows:
The old Section 97, Civil Procedure Code 1859 provided that "if the plaintiff at any time, before the final judgment, satisfied the court that there are sufficient grounds for permitting him to withdraw from the suit with liberty to bring a fresh suit in the same matter, it shall be competent to the court to grant such permission on such terms as to costs or otherwise as it may deem proper.
This old provision appears to me to have been much more liberal and gave a wider discretion to the court to allow a suit to be withdrawn on any ground that were considered sufficient by the court, where liberty was asked to bring a fresh suit on the same cause of action. But this old section was amended later on and it took the form in which it is now found. In the amended a form a distinction is made between a plaintiff withdrawing a suit and a plaintiff withdrawing from a suit. Whatever the distinction be, it is not clear what exactly was the intention of the legislature when the amendment was made.
Whether the idea was to liberalise the discretion vested in the court or to narrow it down, we cannot say at this stage. But, however, the fact remains that the trend of the decisions in this Court and also in the Allahabad High Court, as could be gathered from the decision in Abdul Chafoor v. Abdul Rahman A.I.R. 1951 All. 865 (F.B.), seems to have been to narrow down the scope of the discretion vested in the court permitting a plaintiff to withdraw from a suit with liberty to file a fresh suit on the same cause of action. The tendency does not appear to me to be in consonance with the real object underlying the amended clause. Sub-clauses (a) and (b) seem to deal with two different situations, and not with similar or analogous situations. Otherwise there seems to be no need for having introduced the terms "other and sufficient" in Sub-clause (b) in contra-distinction from the terms contained in Sub-clause (a). Some meaning and significance should be attached in the context in which they appear. The first ground is stated to be the possibility of a failure of the suit by reason of formal defect. If it was the case that any other ground shown for withdrawal of the suit with liberty to file a fresh suit should also be more or less the same or analogous to the formal defect, then the terms other and sufficient" lose all meaning and significance in the context.
The Clause seems to read and convey sufficient meaning even if it is read without the words "other" and "sufficient". Therefore is will not be doing any violence to the language or to the spirit and object underlying the same, if we were we hold that a wider discretion is sought to be given to the courts under Sub-clause (b) than under Sub-clause (a). I do not see any justification to restrict the scope of Sub-clause (b) when the courts is satisfied on other and sufficient grounds to give leave to withdraw on those contained in Sub-clause (a).
Mr. Justice Horwill in two decisions referred to above, namely Jagadambal v. Minor Sundarammal (1940) 2 M.L.J. 389.A.I.R. 1941 Mad. 46 and VaradarajuluNaidu v. Narayanaswamy (1949) 2 M.L.J. 457, has persistently held that view that the term "other sufficient grounds" must be ejusdem generis with the grounds under the Sub-clause 2(a) or at any rate they must be analogous to the formal defect mentioned therein.
At the same time he has taken the view that if once lower court in exercising its discretion has granted permission to the plaintiff to withdraw from the suit on other and sufficient grounds, the High Court need not interfere in revision against the order of that type, when once it has been a considered order passed on taking into account all the merits of the case and as well as the authorities placed before the court. I am inclined to agree with this view and it accords with my own reading of the import of Sub-clause (b) of R.I. (7) In this case the learned Counsel, Mr. T.R. Srinivasan on behalf of the respondent relied on the decision in Chidambara Mudali v. Kozhandavelu Mudali, Ind. Case 395 Mad., a decision in which Justice Sundarsam Aiyer and Justice Sadasiva Aiyar have agreed that permission could be granted to withdraw the suit under Order 23, Rule 2, with liberty to file a fresh suit even at a very late stage at the second appeal. This decision has not been dissented from in any of the decisions cited by the learned Counsel for the petitioner. In Munuswami Pillai v. Jagathambal I.L.R. 41 Mad. 731: AIR. 1919 Mad. 1071 : 8 L.W. 145, also the two Judges, namely, Oldfield and Sadasiva Aiyar, J. 33, stuck to their respective views one holding that the term "other and sufficient grounds" should be interpreted as being ejusdem generis with the formal defect and the other holding that it should not be so interpreted. The Bombay view seems to be in accordance with the view taken by Justice Sadasiva Aiyar as can be seen from the decision in Bai Mahakore v. Shikabai Sankalchand Shah I.L.R. 59 Bom. 114 : A.I.R. 1935 Born. 29, following the decision in Narandas Raghunath-das v. Shantilal Bholabai I.L.R. 45 Bom. 377: A.I.R. 1921 Bom. 267.
I am myself inclined to agree with the view that seeks to give a more liberal interpretation to the Sub-clause (b) of Rule 1 as that will have the effect of causing less hardship to the plaintiff seeking leave to withdraw the suit.
22. In Rakki v. Samaiyan, 78 L. W. 618, Ramamurti, J. held that it is settled law that if the plaintiffs suit fails on the merits after a detailed adjudication by the court, the plaintiff cannot get over the effect of that adjudication, by withdrawing the suit with liberty to file a fresh suit.
23. In Nadipatha v. Pedda Venkataraju , Natesan, J. held that a mis-description or inaccurate description of the property in the plaint is not a formal defect necessitating the withdrawal of the suit after the trial court has given a decision in the matter. The learned Judge observed that the appellate court should be slow and cautious to exercise the powers under Order 23, Rule 1 and permit a defeated plaintiff to withdraw his suit with liberty to file a fresh suit and reagitate the matter over once again. It was also observed that when the defect, if any, could be cured by an amendment, the court should not ordinarily permit the withdrawal of the suit with liberty to institute a fresh suit.
24. In Charles Samuel v. Board of Trustees (1978)2 M.L.J. 243 : 91 L.W. 320, Balasubramanyam, J. held that the grant of permission to withdraw a suit would always be a matter for the discretion of the court whether it is moved under Clause (a) or Clause (b). While dealing with the question of withdrawal at the appellate stage, the learned Judge observed thus:
It seems to me, however, that even at the appellate stage, the way must be clear for the plaintiff to withdraw his suit without prejudicially affecting the position of the other parties to the litigation. I can very well visualise a situation where the plaintiff succeeds in the trial court in obtaining a decree, and in the appeal against his decree by the defendant the plaintiff might wish to withdraw the suit, forging the decrees on hand in his favour. If such a situation could be visualised, a withdrawal of the suit at the appeal stage, although it may amount to withdrawal nullification of the trial court's decree also, might still not hurt any party other than the withdrawing plaintiff, excepting on the question of costs, for which the court may make suitable provision or reservation in the order granting leave to withdraw.
On the interpretation of Clauses (a) and (b) the learned Judge has stated thus:
Clause (b) of the Rule says that the court may allow a suit to be withdrawn if it is satisfied that sufficient grounds' exist therefor in the case. This clause does not say what grounds may be regarded as sufficient. It is in this context that Clause (a) and its specific reference to 'formal defects' becomes clear. By enacting this clause, the legislature has only relieved the court from having to decide whether a formal defect can be a sufficient ground for exercising its discretion. But thereby the legislature has not enacted a different rule for the exercise of the discretion itself. In my view, whether the court is moved under Clause (a) or Clause (b), what is invoked for exercise is the court's discretion.
Though the learned Judge has not expressly stated so, his view appears to be that 'sufficient grounds' in Clause (b) have a wider scope than formal defects in Clause (a) and that the discretion of the court under Clause (b) is not fettered by the language used in Clause (a).
25. In Ram Dhan v. Jagat Prasad , the question of granting permission to withdraw the suit at the appellate stage was considered in detail. Justice Kasliwal, after referring to the various authorities, observed that the plaintiff has no absolute right to withdraw from the suit where some vested right had accrued to the defendant. Making a distinction between withdrawal of a suit during the trial and withdrawal during the appellate stage, the learned Judge observed thus:
The position for a plaintiff to withdraw his suit without any reservation i.e., without any prayer to allow him to bring a fresh suit in respect of the same subject-matter, would be considered under the provisions of Sub-rule (1) of Rule 1 of Order 23 but in my view the considerations would be different if such request is made during the trial of a suit and during the stage of first appeal or second appeal where the plaintiff has lost his case in the lower courts. There can be no manner of doubt that the appeal is a continuation of the suit, but at the same time a court of first appeal or second appeal may not even admit the appeal and can dismiss at the admission stage. It would be certainly unfair to the defendant if a plaintiff having lost in the two courts below and after making arguments for admission of second appeal in the High Court and having not been able to succeed in getting the appeal admitted, may be allowed to withdraw the suit itself by way of absolute right and thus negative the benefit of long trial having culminated in favour of the defendant. It is no doubt correct that there is provision under Sub-rule (3) of Rule 1 of Order 23 that the plaintiff shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim, but in my view the award of costs along can hardly be a just and proper solace to the defendant. It is right that the plaintiff will be precluded from bringing a fresh suit on the same subject matter, but it also cannot be denied that the defendant would not be entitled to use the findings given in such a suit, as res judicata in subsequent proceedings.
26. In K. Chinna Vaira Thevar v. S. Vaira Thevar , a Division Bench of this Court held that the failure or inability of the plaintiff to secure necessary evidence to support his case will not be a ground contemplated in Clause (b) and that the object of the rule is not to enable the plaintiff after he has failed to establish his case by adducing requisite evidence to have a further opportunity to file a fresh suit to reagitate the matter so as to prejudice the other side. The Bench also pointed out that if such a thing is permitted, there will be no end to litigation.
27. In Khatuna v. Ramsewak Kashinath , it is held that the expression formal defect' in Clause (a) even if given a wide and liberal meaning, must be deemed to connote every kind of defect which does not affect the merits of the case or does not strike at the root of the plaintiffs case. On the facts it is held that non-joinder of a necessary party is not a formal defect, but it strikes at the root of the case.
28. An analysis of the above judgments shows that it has been generally accepted by the courts that permission to withdraw a suit with liberty to file a fresh suit can be granted if the suit has to fail by reason of a formal defect or a ground analogous thereto. But, courts are uniform in holding that a plaintiff who has failed to establish his case on merits, is not entitled to as right to withdraw the suit and file a fresh suit. On a reading of the two clauses in Sub-rule (3) of Order 23, Rule 1 of the Code of Civil Procedure, it is clear that the legislature has advisedly used a distinctly different language. While Clause (a) refers to the pending suit which must fail by reason of some formal defect, Clause (b) refers to the suit it is instituted with the leave of the court. If a matter falls under Clause (a), the court is concerned only with the question whether the suit must fail by reason of a formal defect. On the other hand, if Clause (b) is invoked by a party, then the court must address itself to the question whether there are sufficient grounds for allowing the party to institute a fresh suit for the same subject matter or part thereof. Hence, in my view, it is not correct to say that sufficient grounds' should be read ejusdem generis with 'formal defect or that they should be analogous thereto. 'Sufficient grounds' would cover a wider field and not restricted to a 'formal defect' or a similar defect. However, when the question arises before an appellate court after the adjudication of the matter on merits by one court or two courts, the test will be whether the court is justified in depriving the defendant of the benefit of a finding rendered in his favour after a full trial. It is well known that when a court grants leave to file a fresh suit on the identical cause of action, the withdrawn suit has no existence in the eye of law. It is not available for any purpose and the parties are relegated to the same position which they occupied before the suit was brought. Hence, the court has to consider in each case when an application is filed in the appellate stage for withdrawing the suit with liberty to file a fresh suit, whether the defendant should be driven back to original position in which he was prior to the filing of the suit, even though he has come out successful after a full trial.
29. Applying the above tests to the case, it is clear that there is no ground for granting the permission sought by the petitioners. With reference to the first ground urged by the petitioners that they have been advised that the Government is a necessary party, the objection was taken by the respondents at the earliest stage in the written statement. An issue was framed in the trial court as to whether the suit was bad for non-joinder of necessary parties. The issue was answered against the petitioners. In the lower appellate court also, the point was considered again and answered against the petitioners. In the Second Appeal, the question was argued before me. Learned Counsel for the petitioners contended that the Government is not necessary party. It is only after I indicated my view against the said contention, the present petition has been filed alleging that the petitioners are advised that the Government is a necessary party. I have already referred to the uniform view taken by the courts that non-joinder of necessary parties is not a formal defect. Hence, I hold that the first ground urged by the petitioners is not sufficient for granting permission to them to withdraw the suit.
30. The second ground is that material documents have been discovered. These documents have been filed along with an application for admitting them as additional evidence in the second appeal. (Vide: C.M.P. No. 10808 of 1990). When the appeal was argued, the civil miscellaneous petition was also argued Learned Counsel for the respondents pointed out that none of the documents would be of any use to the petitioners in the present case. It has been repeatedly held, as seen already, that permission to withdraw a suit cannot be granted for the purpose of enabling the plaintiff to adduce fresh evidence or more evidence in a fresh suit. Thus, the second ground also fails.
31. The third ground urged in the course of arguments though not set out in the affidavit filed in support of the petition, is that the plaint is defectively framed. There is no substance in this contention. In the course of argument in the appeal learned Counsel for the appellants contended that even if the plaintiffs have not made out a case for declaration of their title, an injunction should be granted on the basis of their possession. It was then pointed out by the court that the prayer for injunction was only consequential to the prayer for declaration. That does not mean that the case of the petitioners that they are in possession has been accepted. There is no defect in the framing of the prayers to such.
32. Thus, all the three grounds urged in support of the petition are unsustainable. I do not find any justification in this case for permitting the petitioners to withdraw the suit and thereby setting at nought the findings of the suits below enabling them to file a fresh suit with a clean slate particularly when the suit instituted in 1980, was disposed of after full trial and the petitioner had an opportunity in the lower appellate court with a further opportunity in this Court in second appeal to establish their claim.
33. In the circumstances, the petition is dismissed. There will be no order as to costs.