BRAJAMOHAN SABATO Vs. SAROJINI PANIGRAHI

JUDGEMENT

(1.) This appeal is by the plaintiff from the reversing decision of the lower appellate court. To understand the plaintiff's case it is necessary to set out a short genealogy. In the year 1956 there was a partition of the joint family properties and in evidence thereof a deed of partition dated 11-1-56 was registered. Defendant 1 also adopted the plaintiff on 10-1-56 and Executed and registered a deed of partition on 11-1-56. In the year 1962, defendant No. 1 filed a suit, T. S. No. 2/62, for declaration that the plaintiff was not her adopted son. The plaintiff a minor then, contested the suit represented by his natural father, defendant No. 2. That suit was decreed on 13-4-63 and defendant No. 2 filed an appeal therefrom beyond the period of limitation of 30 days provided therefor. The plaintiff represented by his natural mother has filed the present suit (T. S. No. 46/56 of 1964/1966) for a declaration that he is the adopted son of defendant No. 1 and, as such, entitled to the suit properties alleging that his natural father was grossly negligent in conducting his defence in the previous suit. The trial court decreed the suit on 30-7-66. His finding was that the natural father of the plaintiff was negligent only in not preferring the appeal from the decree in T. S. No. 2 of 1962 in time and declared that the decree passed in T. S. No. 2 of 1962 was not binding on the plaintiff and that the defendant No. 1, if so advised, might file a necessary petition to revive the previous suit in the proper court. Defendant No. 1 appealed and the appellate court reversed the decision. From that decision the plaintiff has come up to this Court in this second appeal.

(2.) During the course of hearing of the appeal it was detected that the present suit has not been properly framed inasmuch as the reliefs claimed that he is the adopted son of defendant No. 1 and that he is entitled to the suit schedule properties cannot be granted in view of the decree passed in T. S. No. 2/62 without first of all seeking to avoid or set aside that decree. Mr. Pal on behalf of the appellant has, therefore, filed a petition under Order 23, Rule 1, C.P.C. for withdrawing the suit (T. S. No. 46/56 of 1964/ 1966) with permission to file a fresh suit on the same cause of action. This application has been resisted by Mr. Misra for the respondents. Mr. Pal relies upon clause (b) of sub-rule (2) of Rule 1 of Order 23, C.P.C. which provides that if the court is satisfied 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 grant, on such terms as it thinks fit, permission to the plaintiff to withdraw from the suit with liberty to institute a fresh suit. Mr. Misra relying upon decisions reported in the case of Tarachand Bapuchand v. Gaibihaji Ahmed Bagwan, AIR 1956 Bom 632 and in the case of Eleavarthi Nadipatha v. Eleavarthi Pedda Venkataraju, (1966) 1 Mad LJ 359 : (AIR 1966 Mad 346) contended that the two clauses have to be read by applying the rule of ejusdem generis and a cause which is sufficient within the meaning of O. 23, Rule 1 (2) (b) must be similar or alike to the cause mentioned in Order 23, Rule 1 (2) (a). As, in the instant case, the ground put forth is not analogous to the grounds specified in clause (a) of Rule 1 (2) of Order 23, C.P.C., the application must be rejected. It was, however, brought to my notice that a decision of this Court in the case of Atul Krushna Roy v. Rajkishore Mohanty, ILR (1956) Cut 1 : (AIR 1956 Orissa 77) has taken a different view. It has been held there that failure of the plaintiff's counsel to incorporate a prayer in the plaint was a defect constituting 'sufficient ground' for permitting the plaintiff to withdraw his suit with liberty to file a fresh suit. Relying upon a decision of the Madras High Court in the case of Balide Kamayya v. Pragada Papayya, ILR 40 Mad 259 : (AIR 1918 Mad 1287) (FB), it was held that "the expression 'other sufficient grounds' occurring in clause (b) of Order 23, R. 1 (2), C.P.C. is not necessarily restricted to defects of a formal character but is wide enough to embrace other defects as well". I am not inclined to differ from the view taken by this court. I, therefore, accept the view of this Court and am of opinion that the mistake committed by the plaintiff in not seeking the appropriate relief in the suit constitutes a sufficient ground. I, therefore, grant the plaintiff permission to withdraw from the present suit with liberty to file a fresh suit on the same cause of action. It would, however, be open to the defendants to resist the fresh suit, when filed by the plaintiff, on all available grounds including ground of limitation. In allowing the application, I will, however, direct that the appellant shall pay a sum of Rs. 100 to Mr. Misra on or before 8-5-74, in default, this application shall stand dismissed without further reference to the Bench.

(3.) In the result the second appeal is dismissed as the suit has been withdrawn but without costs. Appeal dismissed.