Sri Yasin Mia, an Advocate by profession, filed a suit on 28th of October, 1957, in the Court of Subordi­nate Judge, Agartala, for possession by partition of a large number of proper­ties mentioned in the schedule attached to the plaint. As many as 26 persons were cited as defendants. A preliminary decree for partition was passed in the suit on 22-6-1960. An appeal lodged against that decree by one of the defend­ants was rejected by this Court on 20th of November, 1967. Thereafter, the trial Court took steps for effecting partition of the various properties by metes and bounds.

In the meantime, a large number of applications were made containing various prayers primarily arising out of transfers of certain properties by way of sales and gifts by defendants on the record. In one application moved on 22-5-1970 by a set of the defendants, the revision petitioners herein, the prayer made was that since the plaintiff had taken no active steps to secure partition of the properties for a long time, they should be transposed as plaintiffs to en­able them to pursue the matter with vigour. Before this set of applications could be disposed of, the plaintiff Yasin Mia presented an application on 16-6-1970 requesting the trial Court for per­mission to withdraw from the suit with liberty to institute a new suit on the same cause of action. That prayer of the plaintiff was opposed by some of the defendants, particularly who are now the revision petitioners, but the Court by its order dated 25-6-1970 allowed the same. The petitioners having felt ag­grieved have come up in this Court to assail its validity.

2. This revision petition had to be heard ex parte because the plaintiff-respondent failed to put in appearance despite service. Sub-rule (2) of R. 1 of O. 23 of the Civil Procedure Code provides that where the Court is satisfied:-

(a) that a suit must fail by reason of some formal defect, or

(b) 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. Ex facie the trial Court allowed the withdrawal of the suit with liberty to institute another one in terms of Cl. (b) of sub-rule (2). A perusal of the order of the trial Court reveals that the withdrawal was allowed on the follow­ing grounds:-

(1) That the decree "is not likely to be executed"}

(2) That a number of persons, who had moved miscellaneous applications, had not filed sale deeds and gift deeds "on the strength of which they want to be added as parties to the suit and the genuineness of the said transactions is also challenged on behalf of the defend­ant No. 1";

(3) "It Is also an admitted fact that some of the defendants left for Pakistan for good and it is, therefore, absolutely necessary for the ends of justice that fresh evidence about the right, title and interest of the parties in the suit land is necessary";

(4) That the suit which was filed in the year 1957 A. D. "is being dragged till today and as many as 8 petitions are filed for impleading the applicants as parties to the suit"; and

(5) "There are as many as 26 defend­ants in the suit and it is likely that some more applications may be filed taking advantage of the absence of the defend­ants who left for Pakistan for good and it is not known how long it will take to dispose of the case when it is pending for the last 13 years." The question that arises for determina­tion is whether all or any of the grounds on which the withdrawal was permitted fall within the ambit of Cl. (b) of sub-rule (2). It is well settled that the ex­pression "other sufficient grounds" used in that clause has to be construed ejus-dem generis with the expression "formal defect" mentioned in CL (a) of the sub-rule. In some judicial

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