The words "other sufficient grounds" in Order 23, rule 1(2)(b), Civil Procedure Code, should be interpreted to mean grounds analogous to a formal defect.

BHIMASANKARAM, J. : These Civil Revision Petitions arise out of the two applications under Order 23, rule 1, Civil Procedure Code, filed in two different suits by the 1st respondent in both the Civil Revision Petitions, who was the plaintiff in both of them for permitting him to withdraw the suits with liberty to file a fresh consolidated suit. The earlier of the suits O. S. No. 53 of 1950 was filed against the plaintiffs brother, the 4th defendant and his sons defendants 1 to 3 for partition and separate possession of the plaintiffs share in A, B and C schedule properties, for an account, for future profits, etc. The claim to those properties was rested on a will, dated 22nd August, 1948, executed by the father of the plaintiff and 4th defendant.

The plaintiff alleged that his brother, the 4th defendant, took possession of the properties after the death of their father on 21st August, 1950, since defendants 1 to 3 were also given a life-interest under that will in the A schedule properties and absolute interest in the other half of the B and C schedule properties. The second suit O. S. No. 77 of 1951 was for the recovery of possession of A schedule properties, for division of B, C and D schedule properties, for delivery of possession of his half share therein, and for an injunction in respect of E schedule properties or for possession thereof in the alternative. The plaintiff alleged that the defendants were giving out that late Sarvesalingam had executed a will, dated 4th June, 1950, superseding the prior will, dated 22nd August, 1948 and that under the latter will he conveyed to defendants 1 to 3 (same as defendants 1 to 3 in the other suit) rights in some properties not included in the first suit.

In the common affidavit filed in support of the applications in the Court below, the respondent stated that as the defendants raised the plea in O. S. No. 77 of 1951 that it was barred under Order 2, rule 2, Civil Procedure Code, on account of the properties therein not having been included in the first suit, he may be permitted to withdraw from both the suits in order that he may file a comprehensive and consolidated fresh suit for all the properties claimed in either suit. The learned Sub- ordinate Judge allowed both the applications with the result that a new suit has been instituted covering all the properties and its trial has been stayed by this Court pending the disposal of these revision petitions. The learned Subordinate Judge was of the opinion that the second suit must fail by reason of the provisions of Order 2, rule 2, Civil Procedure Code and such a failure he held would be by reason of a formal defect" within the meaning of sub-clause (a) of sub-rule 2 of rule 1 of Order 23, Civil Procedure Code. As regards the first suit, he held that under clause (b) of the same sub-rule there were other sufficient grounds for allowing the plaintiff to institute a fresh suit. He said :

"Though the first suit need not fail on account of any formal defect, there is sufficient ground for permitting the plaintiff to withdraw the first suit, since he is likely to lose his claim for the properties included in the second suit not having been included in the first suit also."

2. The propriety of the orders of the Subordinate Judge granting leave as aforesaid is questioned in these Civil Revision Petitions. It is argued for the petitioners that the liability of a suit to fail because of the bar imposed by Order 2, rule 2, cannot be attributed to a formal defect and that in any case whatever meaning may be given to the words other sufficient groundsit cannot extend to the point of enabling the Court to grant the permission sought on the ground mentioned by the Subordinate Judge. On the construction to be put upon the language of Order 23, rule 1, sub-rule (2), two decisions of the Madras High Court have been cited to us to both of which Oldfield, J., was a party. In Aiya Goundan v. Gopanna Mauradiyar 27 Mad LJ 480 at p. 481 : (AIR 19