ATUL KRUSHNA ROY Vs. RAUKISHORE MOHANTY

JUDGEMENT

(1.) THIS is a petition under Section 115 of the Civil P. C., directed against an order passed by the Munsif, Puri, permitting the plaintiff to withdraw his suit for accounts with liberty to institute a fresh suit. The facts are that the plaintiff and defendant were partners of an unregistered firm. The plaint had been so drafted that the suit was bound to fail as there was no prayer for dissolution of the partnership before accounts could be taken. After the written statement was filed, the plaintiff discovered that on account of this defect the suit was bound to fail and therefore applied for leave to withdraw it. The learned Munsif held that the plaintiff had been put to the risk of losing his entire claim on account of the faulty drafting of the plaint by his lawyer, and following the decision reported in 'Gurprit Singh v. Punjab Government', AIR 1946 Lah 429 (A), permitted the plaintiff to withdraw the suit with liberty to institute a fresh suit. It is against this order of the learned Munsif that the defendant has come up in revision.

(2.) THE first point that needs consideration is whether the failure to include a prayer for dissolution of the partnership, which would inevitably lead to the dismissal of the suit, is to be regarded as a 'formal defect' or can be held to be one of the 'other sufficient grounds' within the meaning of Order 23, Rule 1 of the Civil P. C. There has been considerable divergence of opinion among Judges as to the meaning to be given to the expression 'other sufficient grounds' used in Clause (b) of Rule 1 (2) of Order 23. One view is that the expression should be read ejusdem generis with the expression 'formal defect' occurring in Clause (a); while according to the other view the expression 'other sufficient grounds' in Clause (b) should be taken to mean, that the ground should be in the nature of a'formal defect' mentioned in Clause (a). It is unnecessary to refer to all the cases cited at the Bar as the decision in each case can be justified on the facts of that particular case. After all the question is - - what is a formal defect?

(3.) THE case reported in - - 'Abdul Ghafoor v. Abdul Rahman', AIR 1951 All 845 (FB) (C), has been strongly relied on by learned counsel for the appellant, and I am asked to put a strict interpretation on the language of Clause (b). But there is also a Pull Bench decision of the Bombay High Court reported in - - 'Ramrao Bhagwantrao v. Appanna Samage', AIR 1940 Bom 121 (FB) (D), where it has been held that the expression 'other sufficient grounds' need not, be read ejusdem generis with the grounds mentioned in Clause (a) of Rule 1 (2) and the grounds mentioned in Clause (b) need not necessarily be fatal to the suit, in order to attract the provisions of that clause, but must be analogous to a formal defect. My attention has also been drawn to a judgment of Narasimham J. reported in - - 'Babrak Khan v. Shakoor Muhammad', 20 Cut LT 643 (E), where reliance was placed on a Privy Council decision reported in - - 'Chhajju Ram v. Neki'. AIR 1922 PC 112 (F), in which their Lordships held that the expression 'other sufficient reasons' occurring in Order 47, Rule 1, Civil P. C., should be construed ejusdem generis with 'mistake or other error apparent on the face of the record'. It should be remembered that the expression 'for other sufficient reasons' occurring in Order 47, Rule 1, is used so as to convey the impression that the mistake or error apparent on the face of the record, mentioned in the rule is not exhaustive of all the reasons which may afford a ground for applying for review of the judgment. It was therefore held by the Privy Council in the context of that rule that 'other sufficient reasons' must be read ejusdem generis with 'mistake or error apparent on the face of the record'. I do not see any justification for importing that construction into the language ofOrder 23, Rule 1. It will be noticed that the expression 'other sufficient grounds' used in Clause (b) of Rule 1 (2) of Order 23 is not enacted as a part of, or as a continuation of, Clause (a) so as to connote a formal defect, but is separately classified and mentioned under a separate rule. I do not therefore see any justification for restricting the meaning of that expression only to formal defects or those analogous thereto. This doctrine of ejusdem generis has been pushed too far in some cases. In my humble opinion it should be restricted, only to cases where the generic words follow specific words in the very same clause or sentence. But where the object of the Legislature has been clearly expressed and the intention is to extend the scope of the general words a wider meaning should be given to the succeeding words. It may be seen that the word 'other' before'sufficient, grounds' is capable of the interpretation 'other than a formal defect'. As atpresent advised, therefore, I am inclined to theview that the expression 'other sufficientgrounds' need not necessarily be restricted todefects of a formal character and that thewords are wide enough to embrace other defectsas well.