ORDER
B. Prakash Rao, J.
1. Heard Sri K.V. Subrahmanya Narasu, learned Counsel for the petitioner and Sri A, Ramalingeswara Rao, Sri K. Someswara Kumar and Sri T.S. Anand, learned Counsel for the respondents and at their request the main revision petition itself is taken up for disposal.
2. The petitioner herein is the plaintiff in O.S. No. 70 of 2003, on the file of the VII Additional District Judge (Fast Track Court), Visakhapatnam. He seeks to assail, by way of this revision under Article 227 of the Constitution of India, the order dismissing I.A.No. 217 of 2005 purported to have been filed under Order 23 Rule 1(3) read with Section 151 C.P.C. seeking permission to withdraw the suit with liberty to file a fresh one.
3. Few facts necessary for disposal of this revision petition are that, in the suit, the plaintiff sought for partition of the suit schedule properties and the respondents filed their written statement, inter alia, stating various pleas, including a specific version that the plaintiff himself has relinquished all his interests, as per the Relinquishment Deed dated 23-5-1970, etcetera. That apart, the respondent also raised a plea as to the correctness of share as claimed by the plaintiff.
4. With this background, the petitioner has come out with the present application much before the matter has come up for trial stating that having regard to certain defects, as noticed, especially in regard to the correctness of the share as pointed out, it necessarily calls for filing a fresh suit rather than seeking any amendment of the pleadings. The said application was contested by the respondents herein on various grounds, including that the application itself is not a bona fide one and no valid grounds have been made out to warrant such a withdrawal, as contemplated under law.
5. The Court below, by taking into consideration the submissions made on either side, dismissed the application, mainly on the ground that any permission as contemplated under Rule 1(3) of Order 23 C.P.C. is to be read with Clause (a) thereof and further that the defects expressed by the petitioner do not appear to be true and no sufficient grounds have been made under the aforesaid Rule.
6. Having heard the learned Counsel on either side and also on a perusal of the material, the question that arises for consideration is as to whether under the facts and circumstances of the case, the present application seeking permission to withdraw the suit is permissible.
7. There is no dispute as to the fact that the petitioner sought for partition of schedule properties in question. The respondents contested the suit on the ground that the petitioner himself has relinquished his share. During the course of arguments, it has been pointed out by the learned Counsel for the petitioner that in regard to the said plea, the petitioner has already filed a separate suit O.S. No. 2526 of 2005, which is pending on the file of the III Junior Civil Judge, Visakhapatnam. It is also not in dispute that the prayer as sought for in the plaint is virtually contrary to the shares held by the parties. There is also no dispute that certain properties have not been included and some of the third persons, who purchased several properties have to be brought on record.
8. In support of his case, the learned Counsel for the petitioner contends that the aforesaid provision has to be construed depending upon the facts and circumstances of the given case.
9. On the other hand, the learned Counsel for the respondents sought to place reliance on a decision reported in K.S. Bhoopathy v. Kokila (2000) 5 SCC 458, wherein, considering the provisions of Order 23 Rule 1(3) C.P.C., the Apex Court held that allowing such an application at the appellate stage is not permissible.
10. There is no dispute as to the fact that the plaint virtually runs contrary to the rights held by the parties. Even with regard to the question of alleged relinquishment, a separate suit is already said to be pending.
11. In the present facts and circumstances of the case, the provision which is relevant for consideration is Rule 1(3) of Rule 23, which reads as follows:
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 plaintiff permission to withdraw from such suit or such part of the claim with a liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
12. The above provision consists of two limits i.e., (a) and (b). Under the first limb, it gives a ground for such withdrawal of cause, subject to the satisfaction, as to the existence of some formal defect, whereas under the latter one, it gives another ground for such withdrawal of the cause subject to the satisfaction of the Court that there are sufficient grounds to withdraw the suit and file a fresh one. Therefore, in the light of the above provisions, 1 feel that while considering the issue involved, the provisions under the two limbs cannot be read together, inasmuch as different causes of action arose under them.
13. Both the limbs under the above provisions cannot run on the same plane and as such, the Courts cannot approach on some grounds in view of the different expressions on two different grounds as contemplated under the provisions. In this view of the matter, I am of the view that while considering the relief sought for by the petitioner, the Court below has misconstrued the provisions by considering the same together.
14. The principle of ejusdem generis conveys a well-laid guiding factor. When particular words pertaining to a class, category or genus are followed by general words, the latter are construed as limited to things of the same kind, as those specified. The attempt is only to reconcile the confusion, which may arise having regard to the expressions so used.
15. The principles in this regard have been considered in a decision reported in Amar Chandra v. Collector of Excise, Tripura , wherein it has been laid down thus:
The Rule applies when
(1) the statute contains an enumeration of specific words;
(2) the subjects of enumeration constitute a class or category;
(3) that class or category is not exhausted by the enumeration;
(4) the general terms follow the enumeration; and
(5) there is no indication of a different legislative intent.
16. On a reading of the provision in question, it is crystal clear that Sub-clauses (a) and (b) totally stand on a different context. As such, they cannot be read together for considering the relief in question.
17. For the reasons in the foregoing paragraphs and in the light of the provisions under Order 23 Rule 1(3), I am of the view that the lower Court is not justified in holding that the expression used in Clause (a) has to be read together with Clause (b).
18. In view of the questions as to whether there is any dispute as to the quantum of share of the petitioner and whether the petitioner has not impleaded the necessary parties, who are the alleged purchasers of the properties and whether the petitioner has relinquished his right of share in the properties, it has to be held that instead of resorting the petitioner to get the pleadings or the plaint amended, it is more apt to allow him to withdraw the suit in question for the purpose of adjudication of the issues involved, in an affective manner.
19. In the circumstances, it is to be held that the petitioner has made out sufficient grounds as required under the provisions of Rule 1(3)(b) of Order 23, warranting such exercise of discretion to be granted in his favour.
20. The civil revision petition is accordingly allowed. No costs.