PRABHAVATHI Vs. KUNHATHABI UMMA

JUDGEMENT

(1.) THE controversy is about the scope of O.23 R.1 (3) CPC., 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 tiled R.CO 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.) 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.