(1.)These Civil Revision Petitions arise out of the two applications under Order 23, rule 1, Civil Procedure Code, filed in two different suits by the 1st respondent in both the Civil Revision Petitions, who was the plaintiff in both of them for permitting him to withdraw the suits with liberty to file a fresh consolidated suit. The earlier of the suits O. S. No. 53 of 1950 was filed against the plaintiff's brother, the 4th defendant and his sons defendants 1 to 3 for partition and separate possession of the plaintiff's share in A, B and C schedule properties, for an account, for future profits, etc. The claim to those properties was rested on a will, dated 22nd August, 1948, executed by the father of the plaintiff and 4th defendant.
The plaintiff alleged that his brother, the 4th defendant, took possession of the properties after the death of their father on 21st August, 1950, since defendants 1 to 3 were also given a life-interest under that will in the A schedule properties and absolute interest in the other half of the B and C schedule properties. The second suit O. S. No. 77 of 1951 was for the recovery of possession of A schedule properties, for division of B, C and D schedule properties, for delivery of possession of his half share therein, and for an injunction in respect of E schedule properties or for possession thereof in the alternative. The plaintiff alleged that the defendants were giving out that late Sarvesalingam had executed a will, dated 4th June, 1950, superseding the prior will, dated 22nd August, 1948 and that under the latter will he conveyed to defendants 1 to 3 (same as defendants 1 to 3 in the other suit) rights in some properties not included in the first suit.
In the common affidavit filed in support of the applications in the Court below, the respondent stated that as the defendants raised the plea in O. S. No. 77 of 1951 that it was barred under Order 2, rule 2, Civil Procedure Code, on account of the properties therein not having been included in the first suit, he may be permitted to withdraw from both the suits in order that he may file a comprehensive and consolidated fresh suit for all the properties claimed in either suit. The learned Sub- ordinate Judge allowed both the applications with the result that a new suit has been instituted covering all the properties and its trial has been stayed by this Court pending the disposal of these revision petitions. The learned Subordinate Judge was of the opinion that the second suit must fail by reason of the provisions of Order 2, rule 2, Civil Procedure Code and such a failure he held would be "by reason of a formal defect" within the meaning of sub-clause (a) of sub-rule 2 of rule 1 of Order 23, Civil Procedure Code. As regards the first suit, he held that under clause (b) of the same sub-rule there were other sufficient grounds for allowing the plaintiff to institute a fresh suit. He said :
"Though the first suit need fail on account of any formal defect, there is sufficient ground for permitting the plaintiff to withdraw the first suit, since he is likely to lose his claim for the properties included in the second suit having been included in the first suit also."
(2.)The propriety of the orders of the Subordinate Judge granting leave as aforesaid is questioned in these Civil Revision Petitions. It is argued for the petitioners that the liability of a suit to fail because of the bar imposed by Order 2, rule 2, cannot be attributed to a formal defect and that in any case whatever meaning may be given to the words 'other sufficient grounds'it cannot extend to the point of enabling the Court to grant the permission sought on the ground mentioned by the Subordinate Judge. On the construction to be put upon the language of Order 23, rule 1, sub-rule (2), two decisions of the Madras High Court have been cited to us to both of which Oldfield, J., was a party. In Aiya Goundan v. Gopanna Mauradiyar 27 Mad LJ 480 at p. 481 : (A.I.R. 1915 Madras 480 at p. 481) the earlier of the two, the Bench of which Seshagiri Ayyar, J., was the other member, stated as follows:-
"We are prepared to hold that the 'sufficient ground'referred to in Order 23, rule 1 (2) (b) must be ejusdem generis with the defect referred to in Rule 1 (2) (a) with reference to the usual interpretation of these words elsewhere in the Code, and to the explicit authority of Burathgunta Pentadee v. Rajamma 1911 Mad WN 105, and that it is clear that the District Munsif acted on nothing in any way resembling a formal defect and that his order is unsustainable. But whether this interpretation of the phrase "sufficient ground" be adopted, we must hold that his discretion was 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".
While sitting with Sadasiva Ayyar, J., in the latter case of Kannuswami Pillai v. Jagathambal ILR 41 Mad 701 , Oldfield, J. stated that he was disposed to re-consider the principle referred to in 27 Mad LJ 480 , Sadasiva Ayyar, J., was inclined to the view that the words "other sufficient grounds" should be interpreted ejusdem generis with "a formal defect". Inasmuch as both of them agreed that on the facts before them the trial Court had no jurisdiction to pass the particular order which was canvassed before them this difference did affect the result of the case. Sadasiva Ayyar, J., however expressed strong dissent from the dictum of Mukerji, J., in Kharda Co., Ltd., v. Durga Charan Chandra 11 Cal LJ 45 and Mabulla Sardar v. Hemangiri Debi 11 Cal LJ 512 that the words "other sufficient grounds" mean grounds analogous to a "formal defect". He was personally disposed to give a very wide meaning to the words. These Civil Revision Petitions have been placed before us, because of the aforesaid conflict of views in the Madras High Court. Since the decisions above referred to, there have been on this point two Full Bench decisions of other High Courts, one of the Bombay High Court reported in Ramrao v. Appanna AIR 1940 Bombay 121 and another reported in Abdul Ghafoor v. Abdul Rahman AIR 1951 Allahabad 845. In the Bombay case their Lordships took the view that though the ejusdem generis rule did apply to the construction of the words "other sufficient grounds", the formal defect mentioned in clause (a) is illustrative of the grounds referred to in clause (b), and although the grounds need be ejusdem generis with the grounds mentioned in clause (a), they must be "at least analogous" with it. They proceeded to say:-
"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 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 Co. v. Collector of Zillah Rajshahye 13 Moo Ind App 160 include misjoinder of parties or of the matters in suit, rejection of a material document for 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 affect the merits of the case, whether that defect be fatal to the suit or not".
The question decided by the Full Bench of the Allahabad High Court was formulated in these words:-
"Whether the words 'other sufficient grounds'in rule 1(2) (b) of Order 23 Civil Procedure Code, cover grounds other than those mentioned in Rule 1 (2) (a)"?
The question does seem to have been happily phrased, but the Full Bench considered the question of the bearing of the words 'formal defect'in Clause (a) on the interpretation of other 'sufficient grounds'in clause (b). They ultimately agreed with the view of the Bombay High Court as laid down in the Full Bench decision in AIR 1940 Bombay 121 and held that the words 'other sufficient grounds'can only refer to grounds analogous to those mentioned in clause (a). The above decisions indicate that though there is a general disinclination to apply the technical rule of ejusdem generis, there is a consensus of opinion that the words in the latter clause should be interpreted with reference to the words in the earlier clause. As Asquith, J., observed in Allen v. Emmerson 1944-1 KB 362 the modem tendency of the law is 'to attenuate the application of the ejusdem generis rule'. Further, for the application of the rule, there must be a distinct genus or category. The force of the criticism of Sadasiva Ayyar, J., as to the application of ejusdem generis rule seems to have been generally recognised. But the Courts have felt that some limitation should be imposed upon the words "other sufficient grounds" with reference to the phrase 'formal defect'. Reference may be usefully made in this connection to the construction put by the Privy Council upon similar words in Order 47, rule 1. The words therein are 'any other sufficient reason'following upon the two specific grounds previously mentioned, namely, the discovery of new and important matter or evidence, or some mistake or error apparent on the face of the record. Their Lordships held in Chajju Ram v. Neki ILR 3 Lah 127 , that 'any other sufficient reason'means a reason sufficient on grounds at least analogous to those specified immediately previously. The view taken in the above Full Bench decisions also finds support from the history of the rule in question. As Craies in his book on Statute Law (Fifth Edition, page 172) states :
"Although it often happens that the words used in a statute are, as Coleridge, J., observed in Clayton v. Fenwick 1856-6 El and Bl 114, 'so general that they must receive some limitation', it is difficult........to lay down any general rule for arriving at the intention of the Legislature as to the precise limitation which must be put upon the meaning of general words used in a statute. In cases where some limitation is called for the Court may be influenced by the history, the mischiefor the intention of the statute".
It is to be noticed that section 97 of the Code of Civil Procedure , 1859, did contain the words 'some formal defect'now occurring in clause (1). The section at the time ran as follows :
"If the plaintiff at any time before final judgment satisfied the Court that there are sufficient grounds for permitting him to withdraw the suit, with liberty to bring a fresh suit for the same matter, it shall be competent for the Court to grant such permission on such terms as to costs or otherwise as it may deem proper".
Though their Lordships of the Privy Council in 13 Moo Ind App 160 (H) were dealing with liberty to bring a fresh suit granted in the year, 1856 (and therefore before the above section was enacted) they evidently had in mind the terms of section 97 of the Code which was in force at the time their decision was rendered, when in that case they observed as follows:-
"There is a proceeding in those Courts called 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 mis-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 borne the proper stamp and 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 cases 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".
As Mr. Mulla points out in his commentary, this passage indicates the view of their Lordships as to the meaning of the words "sufficient grounds". It is to be noted that the phrase "by reason of some formal defect" appeared for the first time in Code of 1877. It cannot for a moment be contended that this addition was intended to widen the scope of the words "sufficient grounds" beyond the meaning attached to them by their Lordships of the Judicial Committee in this decision. Having regard, therefore, to the historical background there is little room for doubt that some limitation should be imposed upon the meaning of the words "sufficient grounds". It is also reasonable to suppose that such a limitation must have some relation to the nature of the defect mentioned in the earlier clause. We, therefore, respectfully agree with the views of the Full Benches of the Bombay and the Allahabad High Courts. We may observe that though perhaps, as the learned Judges of the Bombay High Court point out, there is, in theory, some difference between applying the ejusdem generis rule and interpreting the words in the above said manner, the adoption of either course in this case seems likely to make little difference in practice. Whether the grounds are to be of the same genus as a formal defect or whether the grounds are to be such as are at least analogous to a formal defect, there will be in our judgment little difficulty in actual practice in distinguishing between cases to which the rule could be applied and those which are beyond its remedial operation.
(3.)Now coming to facts of the case before us, it is necessary to see in the first instance whether the lower Court is right in its view that the second suit must fail by virtue of Order 2, rule 2, Civil Procedure Code, a formal defect. Assuming that the property involved in the second suit should have been included in the earlier suit, it seems to us that the plaintiff might have sought such inclusion in the first suit by way of an amendment of the plaint and we see on the record no reason to doubt that such an application made in the first suit at the time when the second suit was filed would have been allowed by the trial Court. The plaintiff seems to have been ill-advised to start a second suit when he might very well have sought the inclusion in the first suit of the properties covered by the second Mr. Lakshmayya for the petitioners draws our pointed attention to the language of Order 2, rule 2(2) Civil Procedure Code :
"Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall afterwards sue in respect of the portion so omitted or relinquished".
An objection under this rule may prove fatal in some cases; but when two suits are actually pending one of which is liable to dismissal thereunder, what is the nature of infirmity to which that suit is exposed? Is it a formal defect? It is true in one sense, that is, if that suit is viewed independently of the earlier suit, there is no defect at all. Still, viewed in relation to the earlier suit, it suffers from a defect which is certainly fatal but which as certainly is not a defect of substance. It has nothing to do with the 'merits of the claim. It does not affect the jurisdiction of the Court. It is one relating to the 'frame of suit'(vide the heading of Order 2). The Court can very well try the claim to the property in question, except for the fact that it was not included in the earlier suit. The mistake or omission is also such as can be rectified by an amendment of the earlier plaint. It surely therefore is properly describable as a defect of form. Strong reliance was placed by Mr. Chandrasekhara Sastri appearing for the respondents, on the decision in K. E. A. K. A. Sahib and Co. v. K. M. Adamsa ILR 2 Rang 66 (A.I.R. 1924 Rangoon 249. In that case, two separate suits were originally instituted for the recovery of the price of goods sold and delivered by the same plaintiff to the same defendant. Objection was taken to the later suit on the basis of Order 2, rule 2, Civil Procedure Code. Thereupon the Plaintiff made two applications to the trial Court under Order 23, rule 1 (2) seeking permission to withdraw from both the suits with liberty to institute a fresh suit in respect of the subject-matter of both the suits. Those applications having been rejected by that Court, revisions were filed against its orders before the High Court and the learned Judge who dealt with them allowed the revisions. He held firstly that the latter suit must fail because of a formal defect and secondly that there were sufficient grounds for allowing the plaintiff to withdraw from the first suit in order to file a fresh suit combining both the claims. The learned Judge remarked that if the plaintiff could be allowed to amend his plaint in the first suit so as to include the claim in his second suit, there was no reason why the plaintiff should not be allowed to withdraw from both the suits and effect that amendment in the new suit. He referred to two cases, one of the Madras High Court, and another of the Allahabad High Court in support of his view. The Allahabad case was a decision of Straight and Broadhurst, JJ., in Mulchand v. Bhikari Das ILR 7 All 624. There a plaintiff suing for a share of profits arising for three years out of land, omitted to include the share of profits for the second and third years and realising the defect he sought leave to withdraw from that suit in order to institute a fresh one. Such leave was granted. To the new suit thus launched, objection however was taken under section 43 of the Code of 1882 (corresponding to Order 2, rule 2 of the present Code) and in repelling the objection, Straight, J. observed as follows :
"I do not see anything in law to prevent the plaintiff from bringing the present suit. At any rate, before the case was struck off he could have so amended his plaint as to have induced the present claim. If he could do so, a fortiori I do not see any reason why he should not do the same in a fresh suit". In Venkata v. Ranga ILR 10 Mad 160, the plaintiff was permitted to withdraw a suit laid for the recovery of interest only under a mortgage-bond in order that he might file a fresh suit for both principal and interest. In rejecting the contention that the second suit should be held barred under section 43 of the then Code, the learned Judges said :
"Section 373 (corresponding to Order 23, rule 1 of the present Civil Procedure Code) was presumably intended to allow of mistakes or omissions being corrected, within the discretion of the Courts concerned, and we do not think it necessary to hold that section 43 is a bar to the entertainment of the present suit".
We are inclined to agree with the reasoning of the learned Judges in ILR 2 Rang 66 : (A.I.R. 1924 Rangoon 249 and we think it derives support from the decisions above cited of the Madras and Allahabad High Courts.