CHERUKURI NAGAMMA Vs. CHERUKOORI LAKSHMINARASU

JUDGEMENT

(1.) This is an application to revise the order of the District Munsif of Ongole giving leave to the plaintiffs to withdraw the suit with permission to bring a fresh suit. The contention of Mr. Raghava Rao for the petitioners is that the order of the District Munsif was without jurisdiction as none of the grounds mentioned in Order 23, Rule 1 were present in the case. The facts of the case are: The plaintiff brought a suit for declaration that they were reversioners to one Venkatappayya and that a will said to have been executed by him was not executed by him in favour of the defendants. Defendant 1, the mother of Venkatappayya, set up a will and contended that the property was devised to her and defendant 2 absolutely. Daring the course of the suit both the parties agreed that the matters in dispute should be referred to arbitration, and the District Munsif acceded to the request of the parties and sent the case to an arbitrator for passing an award. The arbitrator made an award by which the plaintiffs were to get a small portion of the property and the rest of the property was to be enjoyed by defendant 1 absolutely. When the award came up before the District Munsif the defendants objected to the validity of the award on the ground that the award was much wider than the submission and that in the submission there was no reference to the division of the property. The District Munsif held that the award was much wider than the scope of the suit and that he could not pass a decree for the division of the property in a suit which was only for a declaration. He therefore refused to pass a decree in terms of the award, and on an application by the plaintiffs he allowed the suit to be withdrawn with permission to bring a fresh suit on the basis of the award. It is this order that is now challenged in this civil revision petition. Under Order 23, Rule 1, where the Court is satisfied that a suit must fail by reason of some formal defect, or that there are other 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 on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim, with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of a claim.

(2.) The contention of Mr. Raghava Rao is that the suit, as brought, could not fail by reason of a formal defect, and there were no other grounds of like nature to justify the order of the lower Court. Other sufficient grounds must be grounds of a like nature as those mentioned in Rule 1 (2) (a). In Aiya Goundan V/s. Gopanna Manradiyar a Bench of this Court held that the sufficient grounds 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.

(3.) It cannot be disputed that the sufficient ground must be of the nature indicated in Clause 1 (2) (a). The question is whether the ground assigned for giving leave in this case is one of the grounds which can be brought under Rule 1 (2) (b), The contention of Mr. Somayya for the respondents is that, by reason of the award, they could not carry on the present suit, but could only file a suit on the basis of the award for the relief granted to them under the award. No doubt, if the award was a bar to the present suit, his contention would prevail, but I am not prepared to hold that the award is a bar to the present suit as it is framed. No doubt the award may give him a fresh cause of action about which I express no opinion as the matter is sub judice, but I cannot see how the fact that there is an illegal award which could not be embodied in a decree in a pending suit, could be pleaded in bar of the suit in which the award is given, which by reason of its illegality cannot put an end to the suit by being made a decree of Court.