ORDER
M.P. Menon, J.
1. The controversy is about the scope of Order 23, Rule 1 (3), C.P.C., and the facts are these:–
2. Claiming themselves to be the owners of a building let out to the revision petitioner and her children, respondents (1) and (2) herein filed R.C.O.P. 114/72 for eviction, on grounds of arrears of rent. The tenants contended that the site of the building was taken out on “karaima” right and that the building was put up by them. Landlord-tenant relationship within the meaning of Act 2/65 was thus denied, and a tenancy within the meaning of the Land Reforms Act (1/64) was set up. The Rent Control Court thought that there was a bona fide dispute regarding title and referred the parties to a civil suit. Respondents (1) and (2) then filed O. S. 2/74 for recovery of possession of the building with arrears of rent. The suit was also based on the contract of letting. The trial Court held that the contract was not established. The plaintiffs filed an appeal (A. S. 120/78) before the Sub Court. During the pendency of the appeal, they sought the permission of the appellate Court to withdraw the suit with liberty to file a fresh suit on title. The court allowed this request by order dated 17-12-80, and it is this order which is now being challenged in revision.
3. The appellate Court has taken the view that the failure of the plaintiffs to sue on the strength of title was a mistake and that such mistake would be “sufficient ground” within the meaning of
Order 23, Rule 1 (3). And the contention of the revision petitioner (defendant) is that this approach is erroneous.
4. Order 23, Rule 1 (3) as it now stands reads:–
“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 liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.” Prior to Amending Act 104/76, both “abandonment” and “withdrawal” of a suit were covered by Sub-rule (2) of Order 23, Rule 1, reading as follows:–
“Where 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 may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of claim.” After the amendment, the present Sub-rule (3) deals with withdrawal alone separately.
5. Mrs. Dandapani for the revision petitioner contends that “sufficient grounds” referred to in Clause (b) of Sub-rule (3) must be read ejusdem generis with “formal defect” in Clause (a) so that grounds for permission under Clause (b) must be analogous to “formal defects” in Clause (a). A number of decisions have been cited, but the flow of case law has not been uniform. Some decisions adopt the ejusdem generis rule. Some others stop short of it, but still hold that the grounds in Clause (b) must be similar. A third view is that Clause (b) is wider and is not controlled by Clause (a). Counsel on both sides assure me that there are no decisions of this Court or of the Supreme Court directly covering the point. Before examining the case law, therefore, I propose to examine the language of the statutory provisions.
6. Clause (a) of Sub-rule (3) provides that where the Court is satisfied that the suit must fail by reason of some formal
defect, it can permit the plaintiff to withdraw it. “Formal defect’ in the context can only mean a defect unconnected with the merits. As will presently be seen, there is conflict as to what will constitute a formal defect itself, though the current of judicial opinion seems to include misjoinder of parties, erroneous valuation of the subject-matter, rejection of a material document for want of stamp, failure to disclose cause of action etc. among ‘formal defects’ for the purposes of Clause (a). Be that as it may, it is clear that the legislative intention behind Clause (a) is to cover one class of suits which ‘must fail’ for reasons other than those affecting the merits of a case. Any formal defect is not sufficient for attracting Clause (a); the defect must be one which in the opinion of the Court must necessarily lead to the failure of the suit. Having thus dealt with one class of suits where permission to withdraw could be granted by a court, Clause (b) proceeds to deal with other circumstances or cases where also leave can be granted. On simple reading, what Clause (b) appears to lay down is that where the court is satisfied that there are sufficient grounds for allowing a plaintiff to institute a fresh suit, it may grant him permission to withdraw the pending suit, The essential distinction between Clause (a) and Clause (b) is that while the former deals with a class of suits i.e. suits which must fail by reason of formal defect, the latter does not conceive of any such limited class at all. Plainly read, Clause (b) permits a court to allow withdrawal of any suit when “sufficient grounds” to its satisfaction are made out. While satisfaction of the court that the suit must fail by reason of a formal defect is a condition for invoking Clause (a), there is no such condition in Clause (b). The result of holding that “sufficient grounds” in Clause (b) must refer to grounds analogous to ‘formal defects’ will be to restrict its operation to another class of cases just outside the periphery of Clause (a). But there is nothing in the plain language of Clause (b) to suggest that the legislature was thinking of any specific class for its application. It is possible to construe the scope of the clause without the aid of any rule of construction– where a suit must necessarily fail by reason of some formal defect, the court can allow its withdrawal under Clause (a); and in all other cases where a plaintiff is able to make out that there are sufficient grounds for withdrawal, the court can act under Clause (b).
The object of Rule 1 is no doubt to enable a party to cover up all his omissions and failures and attempt a second suit on the same cause of action in order to avoid the result of all his failures; but the rule is equally intended to ensure that a fair trial of a suit on merits is not shut out because of a bona fide error or omission which cannot be cured in the same proceedings. Viewed in this background, the wider discretion granted to the court under Clause (b) to examine the sufficiency of the grounds urged in support of every request for withdrawal is intended to advance the cause of justice. The power is conferred on a court and it is also authorised to put the plaintiff on terms; and there is no guarantee that the second suit would be maintainable. These, in my opinion, are sufficient safeguards against repetition of vexatious litigations.
7. Turning now to the decisions cited, Burathagunta Pentadae v. Rajamma, (1910) 8 Ind Cas 868 (Mad) was one where the suit was based on an agreement to pay certain rent. Plaintiff’s witnesses did not support her. She wanted to withdraw the suit on the ground that the witnesses had been won over and that another cause of action (compensation for use and occupation) had also to be joined. Krishnaswamy Iyer J. held that there was no formal defect and that the use of the word ‘other’ (in Sub-rule (2) (b) as it then stood) suggested that the ‘sufficient ground’ must be one ejusdem generis with ‘formal defect’. It was also alternatively held that the mere inability of the plaintiff to prove her case was not ‘sufficient ground’, and that irrespective of the outcome of the suit for rent, she could institute a fresh suit for compensation. The decision is a short one, without any discussion as such on the applicability of the ejusdem generis rule; and his Lordship was not even prepared to rest his conclusion on that alone. In Aiya Gounden v. Gopanna, (AIR 1915 Mad 480) a Division Bench of the Madras High Court noticed the above decision with approval, again without any discussion, but also observed:–
“But whether or not this interpretation of the phrase “sufficient grounds” be adopted, we must hold that his discretion was not exercised judicially, since it was exercised in spite 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.”
The trial Court had in that case allowed the plaintiff to withdraw the suit on the ground that he had not been able to bestow sufficient attention on its conduct. The Division Bench, so far as I could see, had not finally or firmly accepted the applicability of the ejusdem generis rule, but the subsequent decisions of the Madras High Court mostly seem to proceed on the basis that the decision was binding. Thus, in Jagathambal v. Kannusami, (AIR 1918 Mad 499) a learned Judge held that incorrect valuation of the subject-matter of the suit was not a formal defect, and in Naimathulla v. Abdul Razak, (AIR 1925 Mad 1268) another Judge held that the circumstance that the plaintiff was unable to go on with his case was also not a formal defect. Grant of permission to withdraw a suit where the arbitrator had rendered a decision beyond the scope of the dispute was also held to be not a formal defect in Nagamma v. Lakshminarasu, (AIR 1928 Mad 1085). Varadarajulu v. Narayanaswami, (AIR 1950 Mad 40) was yet another case where it was held that the words “other sufficient grounds” must connote a formal defect, though the request was to withdraw the suit to raise wider questions, and in the opinion of the learned Judge, the same could have been done by amending the plaint.
8. Krishnaswami Iyer J. had emphasised the importance of the word ‘other’ in Clause (b) of Sub-rule (2) for invoking the ejusdem generis doctrine; and significantly enough, that word is also now not there in Clause (b) of Sub-rule (3).
9. It is however interesting to note that in Kamayya v. Papayya, (AIR 1918 Mad 1287) (FB) Spencer J. had observed:
“In the present case the permission was granted in order to permit the plaintiffs to redraft their plaint in such a manner as to contain certain necessary allegations for indicating more clearly what their father’s title was, and this appears to me to be a good ground for the order in the circumstances of the case.”
And Krishnan J. had added:–
“If however, it is open to us to consider the propriety of the order of the
District Judge now, the case in Ganga Ram v. Data Ram, ((1886) ILR 8 All 82) already cited is an authority for holding that there was proper ground in the case for the order made, as the plaintiff’s first suit was going to fail for the formal defect that his plaint did not properly set out his title.”
Thus, failure to properly set out title was considered at least by the learned Judges of the Madras High Court either as sufficient ground, or as formal defect within the meaning of Order 23, Rule 1, justifying grant of permission to withdraw. What the learned Sub Judge has done in the case on hand is to permit withdrawal of the suit on the ground that the plaintiffs had mistakenly omitted to sue on title, and even going by the Madras view afore-noticed, this seems to be permissible.
10. In the Madras High Court itself other learned Judges had taken a different view on the applicability of the ejusdem generis rule. In Kannuswami Pillai v. Jagathambal, (AIR 1919 Mad 1071 (2)) Sadasiva Iyer J. had emphatically expressed himself against pushing the doctrine too far and taken the view that Clause (b) was intended to confer a wider discretion on the court. Basheer Ahmed Sayed J. discussed the entire case law in S. Naicker v. R. Ammal (AIR 1957 Mad 207) and said (at p. 208):–
“…… 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 Ghafoor v. Abdul Rahman, AIR 1951 All 845 (FB), 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. This 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 contradistinction from the terms contained in Sub-clause (a). Some meaning and significance should be attached to the terms “other and sufficient” 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 it will not be doing any violence to the language or to the spirit and
object underlying the same, if we were to 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 Court is satisfied on other and sufficient grounds to give leave to withdraw than those contained in Sub-clause (a).”
11. The decisions of the Bombay High Court also show that opinion was sharply divided, as to whether Clause (a) could be allowed to control Clause (b) by applying rules of construction. In Narandas v. Shantilal, (AIR 1921 Bom 267), Mar-ton J. had declined to import such restrictions, observing that:
“I am very reluctant, speaking for myself, to fetter what appears to me to be the plain words of the Act, and although it may be that one has to read Sub-clauses (a), (b) together, I am as at present advised by no means satisfied that the ejusdem generis rule applies.”
In Bai Mahakore v. Bhikhabai, (AIR 1935 Bom 28), Beaumont, C. J. had said:–
“To my mind the language of the rule is quite plain and there is no scope for the introduction of the ejusdem generis rule. ………… If the ‘sufficient grounds’
within 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 must 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.”
But in Ramrao v. Babu Appanna, (AIR 1940 Bom 121), a Full Bench of that court held that Clauses (a) and (b) were to be read together and that so read, Clause (a) was illustrative of the ‘grounds’ in Clause (b), though the grounds as such need not be ejusdem generis with the ground in Clause (a). Ejusdem generis, their Lordships thought, would contemplate things ‘of the same kind’, while ‘analogous’ would signify ‘resemblance in some respect’. The approach was novel,
because instead of construing Clause (b) in wide terms, their Lordships indicated that the ‘formal defect’ in Clause (a) was to be given a “wide and liberal meaning” whether that defect was fatal to the suit or not.
12. In Gurprit Singh v. Punjab Govt., (AIR 1946 Lah 429), a Division Bench considered the scope of the two maxims, noscitur a sociis and ejusdem generis. The first, it was pointed out, embodied a rule of construction that where two or more words susceptible of analogous meaning were coupled together, they were to be understood to be used in their cognate sense. Each word took its colour, as it were, from the others associated with it. Ejusdem generis was only an illustration of this rule. These doctrines came into play, their Lordships observed, only when words were coupled or associated together, but there was no such coupling of words or association in Clauses (a) and (b). Din Mohammed J. who spoke for the Bench said:
“Here the ‘formal defect’ is provided for in Clause (a)……… and other sufficient grounds in Clause (b) of the same rule. If it was intended by the legislature that sufficient grounds contemplated by this rule be also ejusdem generis with ‘formal defect’, they could easily have enacted both the provisions in one sub-rule. As I read the provision, the words ‘other sufficient grounds’ are much wider and significant and can cover all those cases which appear to court as affording such grounds.”
The case before their Lordships, it” was found, was one where the appellants were running a grave risk of losing a valuable estate merely for the blunder of their counsel in not drafting a proper plaint; and it was held that permission to withdraw the suit under such circumstances was perfectly within the scope of Clause (b).
13. I have already indicated in paragraph (6) above that the language of Rule 1 (3) leaves very little for doubt. If the “sufficient grounds” in Clause (b) are also to be taken as formal defects or defects of an analogous nature, the position will be that the court can grant permission under Clause (a) only when such defects are fatal, which under Clause (b), it can grant permission in similar cases which are not fatal. Such an approach will not only restrict the scope of Clause (b), but will also undermine the effect of Clause (a). This difficulty cannot also be
got over, as the Bombay High Court had done, by construing ‘formal defect’ in Clause (a) liberally. There is no difficulty in construing ‘formal defect’ in Clause (a) as referring to procedural defects fatal to a suit, and the “other” sufficient grounds in Clause (b) as defects or failures other than procedural. If the view is to be taken that Clause (b) operates in a wider field, why should any one try to arrive at the same result by enlarging the scope of Clause (a) simply because the two have to be read together or because a rule of construction with a well-known name tag is handy? As pointed out by Sadasiva Iyer J. in Kannusami Pillai’s case (AIR 1919 Mad 1071 (2)), restrictions can be imposed on words otherwise unrestricted only when;
(a) the general words follow specific words in the very same clause of a sentence; or
(b) where the specific words are all of the same genus: or
(c) where the general object of the enactment conveys a definite intention that a restricted meaning alone should be given to the succeeding general words. Rules of construction would be called in aid of interpretation only when the language is not plain, and it appears to me that Clause (b) is deliberately framed in order to give a discretion to the courts to do justice in all cases, without shutting out a fair trial. The dropping of “other” from Clause (b) of Sub-rule (3) practically clinches the issue.
14. It is well-known that plaints are drafted by counsel; and so long as infallibility is not a universal virtue, a mistake committed by counsel should not be the undoing of the client in every case. Where the court is satisfied that a bona fide error is committed, that high stakes are involved, and that it would be unjust on the facts and circumstances of the case to allow the defendant to take advantage of such an error, it must have the power to do what is just, and that is one thing that Clause (b) permits. In the case on hand, for example, a suit other than on title was clearly foreclosed after the decision of the Rent Control Court in R.C.O.P. 144/72; and if the plaintiffs still happened to file O. S. 2/74 solely on the basis of the contract of tenancy, that could have been on mistaken legal advice. Does not justice require that they be relieved of the consequences of the mistake, particularly when it is seen that the karaima rights set up by the defendants had been negatived in earlier proceedings,
and that an amendment of the plaint, even if possible, could have taken the suit beyond the pecuniary jurisdiction of the trial Court? The answer to my mind can only be in the affirmative, and if that is so, the view taken by the court below does not call for any interference. The C.R.P. is therefore dismissed. Parties will suffer their own costs.
