BABRAK KHAN Vs. A. SHAKOOR MOHAMMAD

JUDGEMENT

(1.) THIS is a revision against the order of the Munsif of Cuttack permitting withdrawal of a portion of the Plaintiff's suit under Order 23, Rule 1(2)(b) Code of Civil Procedure with liberty to institute a fresh suit on the same cause of action.

(2.) THE Plaintiff sued the Defendant for ejectment from a house in Cuttack town and also for recovery of damages for use and occupation of the said premises after the giving of notice to quit. At about the same time the Defendant started a case under the Orissa House -Rent Control Act before the House -rent Controller, Cuttack, for fixation of fair and equitable rent for the premises. I am told that the said case is still pending in the file of the House -rent Controller and it may take some time before it is disposed of.

(3.) ON behalf of the Defendant -Petitioner Mr. Rao urged that there was no formal defect in the suit nor was there any other ground for permitting withdrawal analogous to a formal defect and that consequently the lower Court had no jurisdiction to permit withdrawal under the provisions of Order 23, Rule 1 Code of Civil Procedure He relied on a series of Patna decisions reported in Mahendra Ram v. Singi Lal, 3 P.L.J. 651, Uchant Ahir v. Basawan Ahir, 6 P.L.J. 112 and Dr. Sukumar v. Chairman, Dist. Board, Gaya, A.I.R. 1935 Pat. 251 where it was consistently held that the expression 'sufficient grounds' occurring in Clause (b), Sub -rule (2), Rule 1 of Order 23 Code of Civil Procedure should be construed ejusdem generis with the words 'formal defect' mentioned in Clause (a) of that sub -rule and that withdrawal can be permitted only if the defect was analogous to a formal defect. He also invited my attention to the latest Allahabad decision reported in Abdul Ghafoor v. Abdul Rahman : A.I.R. 1951 All. 845 where the same view was held.