The court has the discretion to grant permission to a plaintiff to withdraw a suit with liberty to file a fresh suit on the same cause of action, even if the grounds for withdrawal are not analogous to the formal defect mentioned in O. 23, R. 1, sub-clause (a), provided that the grounds are sufficient and the withdrawal will not prejudice the defendants.

ORDER :- This civil revision Petition arises out of an order made by the learned District Munsif, Sirkali, granting permission to withdraw the suit filed by the plaintiff as a pauper with liberty to file a fresh suit. The order is purported to have been made under O. 23, R. 1, Civil P. C.

2. The plaintiff is a widow and there was an earlier suit brought by her for maintenance against the estate of the joint family. She is the widow of the deceased brother of the first defendant. Her husband had predeceased her father-in-law. The suit was O. S. No. 231 of 1945 and there was a compromise decree in that suit. Maintenance was agreed to be paid at the rate of 24 kalams of paddy and cash of Rs. 60 per year, as the father-in-law was bound to maintain her under a moral obligation.

3. The present suit is for maintenance against the defendants filed after the death of her father-in-law for 60 kalams of paddy and cash of Rs. 60 per annum. The suit also comprised a claim for past maintenance from April 1952 to the date of the plaint. After the suit was instituted and the written statement was filed and issues were framed, the plaintiff put in the present application, out of which this revision has arisen, to withdraw the suit with liberty to file a fresh suit under O. 23, R. 1.

The learned District Munsif in an elaborate order, after considering all the authorities that were placed before him, came to the conclusion that it was a fit case where permission should be granted to the plaintiff to withdraw the suit and institute a fresh suit on the same cause of action, if she so chose. One of the reasons shown for withdrawing the suit was that after the death of the father-in-law, the plaintiff had become entitled to file a suit for partition of the share to which her husband was entitled to in the joint family estate and, obviously at the time she actually filed the suit, after the expiry of her father-in-law, she was not aware that instead of or in addition to the suit for maintenance she could also claim partition of the estate so far as her husbands interest was concerned.

She claimed this right under the law which extended the right of the widow to her husbands share in the immoveable property of the estate of the joint family including agricultural lands. The amendment to Hindu Womens Right to Property Act extending the right to agricultural lands was made in 1947.

4. The application to withdraw the present suit with liberty to bring a fresh suit was resisted by the defendants on the ground that O. 23, R. 1 (2) was not applicable to the circumstances set forth in the application for permission to withdraw. The learned District Munsif overruled the objection and granted the permission.

5. Mr. Kuppuswami Iyer, appearing on behalf of the petitioner, takes the same objection and contends that when it is conceded that there was no formal defect in the plaint by reason of which it could be apprehended that the suit would fail and any other sufficient ground shown to enable the Court to grant such permission must be ejusdem generis with the formal defect referred to in O. 23, R. 1, sub-cl. 2 (a). He has relied upon a series of decisions, namely, Aiya Gounden v. Gopanna Mauradiyar, 27 Mad LJ 480 : (AIR 1915 Mad 480) (A); Jagadambal v. Sundarammal 1940-2 Mad LJ 398 : (AIR 1941 Mad 46) (B) and Varadarajulu Naidu v. Narayanaswami Naidu, 1949-2 Mad LJ 457 : (AIR 1950 Mad 40) (C).

In all these decisions the permission to withdraw was asked for and granted at a very later stage, when the parties had entered upon trial of the suit and evidence had been let in. In these decisions three learned Judges of this Court, namely, Justice Oldfield, Justice Seshagiri Aiyar and Justice Horwill, took the view that is now pressed by the learned counsel for the petitioner, namely, that the term "other sufficient grounds" must be at least analogous to the formal defect contemplated in O. 23, R. 1, sub-cl. 2 (a), if not ejusdem generis with the formal defect But in