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Withdrawal Of Suits - "Sufficient Grounds" In Order 23 Rule 1(b) CPC Not Limited To Only Formal Defects: Orissa HC [Read Judgment]

Akhil George
18 March 2019 9:36 AM GMT
Withdrawal Of Suits - Sufficient Grounds In Order 23 Rule 1(b) CPC Not Limited To Only Formal Defects: Orissa HC [Read Judgment]
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Answering a reference arising out of conflicting judgments, a division bench of High Court of Orissa held that the expression "sufficient grounds" occurring in Order 23, Rule 1(b) of the Code of Civil Procedure in relation of withdrawal of suits is not restricted to formal defects only.

This ruling was made in the case Trinath Basant Ray & Another v. Sk. Mohamood & Another.

The question referred to the bench was whether the expression should be construed ejusdem generis with the words "formal defect" mentioned in Order 23 Rule 1 (3)(a) so as to permit withdrawal of suits with liberty to file a fresh suit on the same subject matter only if the defect is analogous to a formal defect.

Conflicting views were expressed in the case of Babrak Khan v. A. Shakoor Muhammad (1954) 20 CLT 642 and Atul Krushna Roy v. Raukishore Mohanty and others AIR 1956 Orissa 77.

In Babrak Khan, a Single Judge, relying on the decision of the Privy Council in the case of Chhaju v. Neki AIR 1922 P.C 112, held that "sufficient grounds" occurring in clause (b) of sub- rule (2) of Rule 1 of Order 23 should be construed ejusdem generis with the words "formal defect" mentioned in clause (a) of the said sub-rule and withdrawal could be permitted only if the defect was analogous to a "formal defect".

However, in Atul Krushna Roy, the court held that the expression "other sufficient grounds" need not be restricted to only formal defects or those analogous thereto. The words are wide enough to embrace other defects as well. It was held that the provisions of Order 23 Rule 1 CPC have been specifically enacted in order to remove any possible doubt as to the meaning of words "formal defect". Though the decision in Babrak Khan was drawn to the attention of the court, it was ineffectual in persuading the court to concur with the dictum in Babrak Khan.

Dealing with the reference, the bench of Chief Justice M.S Jhaveri and Justice Dr. A.K Rath drew its attention to the judgment of the apex court in V. Rajendran and another v. Annasamy Pandian (2017) 5 SCC 63, where the court held that "In interpreting the words "sufficient grounds", there are two views: One view is that these grounds in clause (b) must be "ejusdem generis" with those in clause (a), that is, it must be of the same nature as the ground in clause (a), that is, formal defect or at least analogous to them; and the other view was that the words "other sufficient grounds" in clause (b) should be read independent of the words a "formal defect" and clause (a). Court has been given a wider discretion to allow withdrawal from suit in the interest of justice in cases where such a prayer is not covered by clause (a)."

The court observed:

The expression "formal defect" has not been defined in CPC. The subject of enumeration belongs to a broad based genus as well as narrow based genus. Thus the question of application of principle of "ejusdem generis" does not apply. Clause (b) cannot be constricted by clause (a), when two alternatives are provided. The expression "other sufficient grounds" occurring in clause (b) of sub- rule (3) of Rule 1 Order 23 CPC cannot be restricted to defects of a formal character. The words are wide enough to take within its sweep other defects as well.

The court accordingly overruled Babrak Khan and held that the view taken in Atul Krushna Roy is correct enunciation of law. 

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