The expression "other sufficient grounds" in O. 23, R. 1(2) of the Civil Procedure Code, 1908 is not limited to defects of a formal character, but includes other defects as well.

ORDER :- This is a petition under S. 115 of the Civil P.C., directed against an order passed by the Munsif Puri, permitting the plaintiff to withdraw his suit for accounts with liberty to institute a fresh suit. The facts are that the plaintiff and defendant were partners of an unregistered firm. The plaint had been so drafted that the suit was bound to fail as there was no prayer for dissolution of the partnership before accounts could be taken.

After the written statement was failed, the plaintiff discovered that on account of the defect the suit was bound to fail and therefore applied for leave to withdraw to fail and therefore applied for leave to withdraw it. The learned Munsif held that the plaintiff had been put to the risk of losing his entire claim on account of the faulty drafting of the plaint by his lawyer, and following the decision reported in - Gurprit Singh v. Punjab Government, AIR 1946 Lah 429 (A), permitted the plaintiff to withdraw the suit with liberty to institute a fresh suit. It is against this order of the learned Munsif that the defendant has come up in revision.

2. The first point that needs consideration is whether the failure to include a prayer for dissolution of the partnership, which would inevitably lead to the dismissal of the suit is to be regarded as a "formal defect" or can be held to be one of the "other sufficient grounds" within the meaning of O. 23, R. 1 of the Civil P.C. There has been considerable divergence of opinion among Judges as to the meaning to be given to the expression "other sufficient grounds" used in cl. (b) of R. 1(2)of O. 23.

One view is that the expression should be read ejusdem generis with the expression "formal defect" occurring in cl. (a); while according to the other view the expression "other sufficient grounds" in cl. (b) should be taken to mean that the ground should be in the nature of a necessary to refer to all the cases cited at the Bar as the decision in each case can be justified on the facts of that particular case. After all the question is - what is a formal defect ?

3. My attention was drawn to the case of - Watson and Co. v. Collector of Zillah Rajshahye 13 Moo Ind App 160 (PC) (B), in which the Privy Council referred to a few circumstances which would come under the category of a "formal defect" so as to non-suit a plaintiff. Those grounds are limited to cases of misjoinder either of parties or of the matters in contest in the suit to cases in which a material document has been rejected, and to cases in which there has been an erroneous valuation of the subject-matter of the suit. Their Lordships said :

"In all those cases the suit fails by reason of some defect of form. But their Lordships are aware of no case in which, upon an issue joined and the party having failed to produce evidence which he was bound to produce in support of that issue, liberty had been given to him to bring a second suit."

In that case, however, no reference was made to the provisions of the Civil Procedure Code of 1859.

It should be remembered that the provisions of O. 23, R. 1, have now been specifically enacted in order to remove any possible doubt as to the meaning of the words "formal defect". I am inclined to think that the Legislature, in putting the two expressions separately in the two sub-rules intended that the "other sufficient grounds" occurring in cl. (b) need not be of a formal character like the ones mentioned in the Privy Council case cited above.

In my opinion a formal defect is a defect of form which is prescribed by rules of procedure such as misjoinder of parties, of causes of action, non-payment of proper court-fee, failure to disclose cause of action and so forth. All these details must be mentioned in the plaint under the rules of procedure, but there may also be other sufficient grounds which would render the suit liable to be dismissed by reason of a defect or defects which may not necessarily be of a formal character such as those enumerated above. It is