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The division bench of High Court of Orissa while dealing the case of “TrinathBasant Ray & Another v. Sk. Mohamood& Another” has held that the expression "sufficient grounds" occurring in Order 23, Rule 1(b) of the Code of Civil Procedure in relation of withdrawal of suits is not restricted to formal defects only.
There was a question raised that whether the expression should be construed ejusdem generis with the words "formal defect" mentioned in Order 23 Rule 1 (3)(a) so as to permit withdrawal of suits with liberty to file a fresh suit on the same subject matter only if the defect is analogous to a formal defect.
In the case of “Babrak Khan v. A. Shakoor Muhammad (1954) 20 CLT 642” and “AtulKrushna Roy v. RaukishoreMohanty and others AIR 1956 Orissa 77” there were conflicting views expressed, where it was seen that in the first case the court has held that "sufficient grounds" occurring in clause (b) of sub- rule (2) of Rule 1 of Order 23 should be construed ejusdem generis with the words "formal defect" mentioned in clause (a) of the said sub-rule and withdrawal could be permitted only if the defect was analogous to a "formal defect".
But, however in the second case the court held that the expression "other sufficient grounds" need not be restricted to only formal defects or those analogous thereto. The words are wide enough to embrace other defects as well. It was held that the provisions of Order 23 Rule 1 CPC have been specifically enacted in order to remove any possible doubt as to the meaning of words "formal defect".
Court in the present case has observed that the expression “formal defect” is not defined under CPC. The subject belongs to broad based genus and narrow based genus. Thus the question of application of principle of "ejusdem generis" does not apply. Clause (b) cannot be constricted by clause (a), when two alternatives are provided. The expression "other sufficient grounds" occurring in clause (b) of sub- rule (3) of Rule 1 Order 23 CPC cannot be restricted to defects of a formal character. The words are wide enough to take within its sweep other defects as well. The court accordingly overruled Babrak Khan and held that the view taken in AtulKrushna Roy is correct enunciation of law.
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