The wider discretion granted to the court under clause (b) of 0.23 R.1 (3) CPC is intended to advance the cause of justice and prevent the shutout of a fair trial of a suit on merits due to a bona fide error or omission.

1. The controversy is about the scope of 0.23 R.1 (3) CPC., and the facts are these:

2. Claiming themselves to be the owners of a building let out to the revision petitioner and her children, respondents (1) and (2) herein tiled R.CO P. 114/72 for eviction, on grounds of arrears of rent. The tenants contended that the site of the building was taken out on "karaima" right and that the building was put up by them. Landlord-tenant relationship within the meaning of Act 2/65 was thus denied, and a tenancy within the meaning of the Land Reforms Act (1/64) was set up. The Rent Control Court thought that there was a bona fide dispute regarding title and referred the parties to a civil suit. Respondents (1) and (2) then filed O. S.2/74 for recovery of possession of the building with arrears of rent. The suit was also based on the contract of letting. The trial court held that the contract was not established. The plaintiffs filed an appeal (A. S.120/78) before the Sub Court. During the pendency of the appeal, they sought the permission of the appellate court to withdraw the suit with liberty to file a fresh suit on title. The court allowed this request by order dated 17-12-80, and it is this order which is now being challenged in

revision

3. The appellate court has taken the view that the failure of the plaintiffs to sue on the strength of title was a mistake and that such mistake would be "sufficient ground" within the meaning of 0.23 R.1 (3). And the contention of the revision petitioner (defendant) is that this approach is erroneous.

4. 0.23 R.1 (3) as it now stands reads: "Where the Court is satisfied,

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

(b) that there are 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 such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim."

Prior to Amending Act 104/76, both "abandonment" and "withdrawal" of a suit were covered by sub-rule (2) of 0.23 Rule I, reading as follows:

"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."

After the amendment, the present sub-rule (3) deals with withdrawal alone separately.

5. Mrs. Dandapani for the revision petitioner contends that "sufficient grounds" referred to in clause (b) of sub-rule (3) must be read ejusdem generis with "formal defect" in clause (a) so that grounds for permission under clause (b) must be analogous to "formal defects" in clause (a). A number of decisions have been cited, but the flow of case law has not been uniform. Some decisions adopt the ejusdem generis rule. Some others stop short of it, but still hold that the grounds in clause (b) must be similar. A third view is that clause (b) is wider and is not controlled by clause (a). Counsel on both sides assure me that there are no decisions of this Court or of the Supreme Court directly covering the point. Before examining the case law, therefore, I propose to examine the language of the statutory provisions.

6. Clause (a) of sub-rule (3) provides that where the court is satisfied that the suit must fail by reason of some formal defect, it can permit the plaintiff to withdraw it. 'Formal defect' in the context can only mean a defect unconnected with the merits. As will presently be seen, there is conflict as to what will constitute a formal defect itself, though the current of judicial opinion seem