JUDGMENT
Jackson, J.
1. The petitioner seeks to revise the order of the District Munsif of Periyakulam in I.A. No. 273 of 1923 in O.S. No. 1395 of 1920.
2. The plaintiff sued in 1920 to set aside a sale effected by his guardian in 1895 four years before he reached his majority in 1899. In paragraph 8 of his plaint he has stated that his guardian informed him that she sold the, property because she was deceived by plaintiff’s elder brother. In paragraph 7 it is alleged that the sale deed contains fraudulent conditions. There is no other mention , of fraud. In his written statement the defendant contended that plaintiff having failed to file a suit within 3 years of his attaining majority is barred by limitation (paragraph 11). Issues were framed, the second issue being : “Is the suit in time in so far as it seeks to avoid the sale ?” One witness was examined and then plaintiff applied under Order 23, Rule 1 Civil, P.C. to withdraw his suit with leave to institute a fresh suit. His difficulty was that he was bound to fail on the second issue. The District Munsif allowed the application because ” to refuse him the liberty he asks for would be virtually to decide the question of fraud against him without an actual trial, and would work out manifest injustice.” As the Munsiff observes in his opening sentence there is no allegation of fraud to bring the case under Section 18 of the Limitation Act and there is no such question of fraud in the case to be decided for or against the plaintiff. It cannot be said to be manifestly unjust to decide that no fraud has been proved as required by Section 18 when no such fraud has ever been alleged.
3. What really happened is that after the defendant had succeeded in showing that certain facts were lacking which were essential to the plaintiff’s cause of action, the plaintiff said that if he was allowed to re-draft his plaint he would add these essential facts; and the Munsif thought it just to allow him to try a second plaint after the plaintiff had manifestly failed. It did not occur to the Munsif how very unjust it would be to the defendant, to allow the plaintiff to take up new ground on matters of fact in this fashion as soon as his original ground was proved untenable. The order has no merits and the only remaining question is whether this Court ought to interfere under Section 115 of the Code of Civil Procedure. In these matters the Court of trial has a limited jurisdiction. It is not unconditionally empowered to permit a plaintiff to with-draw his plaint under Order 23, Rule 1, Civil P.C. If the plaint is defective the only sort of defect which attracts this rule is a formal defect. The other sufficient grounds in Rule 1(2)(b) do not include defects of substance, otherwise there would be no object in inserting the earlier clause, The statute could not run: (a) by reason of some defect in form (b) by reason of some defect in substance ; and if that were the intention it would simply enact by reason of any defect, and if an illustration were required explaining why defects are limited to formal defects, a better case could’ hardly be found than that now in question. It would be intolerable if, as soon as defendant had established that on the facts pleaded the plaintiff must fail, the plaintiff were at liberty to take back his plaint and supply additional facts. A. law suit would then be like one of those combats in ancient mythology where the wound as soon as it is inflicted is miraculously healed.
4. I must find that in permitting the plaintiff to withdraw his plaint by reason of a defect not in form but in substance the District Munsif exercised a jurisdiction not vested in him by law. It is finally argued that this Court should not interfere because the fresh suit which the plaintiff was unjustifiably allowed to institute has progressed to some extent. The fact that injustice is about to fructify is no argument in its favour. As regards the legal rulings on this question I have nothing to add to my judgment in a similar case reported in Venkataramayya v. Veeraswami A.I.R. 1925 Mad. 617. The order of the District Munsif is set aside with costs to petitioner.
