ORDER
P.S. Narayana, J.
1. Heard Ms. Arshia Khatoon representing Smt. Sesharajyam and Mr. M.V. Nagaraj representing Mr. Rajalingam, the Counsel representing both the parties in the CRP.
2. The CRP is filed against an order dated 26-7-1999 made in IA No. 9 of 1999 in OS No. 504 of 1991 on the file of the Principal Senior Civil Judge, Visakhapatnam.
3. The revision petitioner who is the plaintiff in the suit filed an application under Order XXIII, Rule 1 C.PC to permit the plaintiff to withdraw the suit with a liberty to file a fresh suit. The Court below by an order dated 26-7-1999 had allowed the application in part granting permission to the petitioner to withdraw the suit, but refusing liberty to file a fresh suit. Therevision petitioner aggrieved by the said order had preferred the present CRP.
4. The facts of the case in brief are as follows:
The revision petitioner-petitioner-plaintiff filed a suit for recovery of Rs. 29,531.48 ps., and the registration certificate of the firm was not readily available on the date of presentation of the plaint and on oral enquiry with the Registrar of Firms, the petitioner was informed that the registration was completed and after the petitioner had got the registration certificate of the firm, it was found that the date of registration was subsequent to the filing of the suit and since by the date of the institution of the suit, the limitation did not expire and as much as the cause of action survived. The petitioner filed IA No. 9 of 1999 in OS No. 506 of 1991 on the file of Principal Senior Civil Judge, Visakhapatnam to withdraw the suit for the purpose of filing a fresh suit. The suit was filed on 1-6-1991 and the office had taken an objection regarding the registration of the firm and since the objection had been complied with, the suit was numbered on 13-11-1991. The Court below, no doubt, observed that only after the office had taken objection, the petitioner-plaintiff had taken steps for registration of firm by submitting the necessary statement to the Registrar of Finns on 24-6-1991. It is also clear from the facts of the case that there is undue delay on the part of the petitioner-plaintiff in making an application to permit the petitioner to withdraw the suit giving liberty to institute a fresh suit. The Court below allowed the application only in part granting permission to the petitioner to withdraw the suit, but liberty to file a fresh suit on the same cause of action was specifically refused.
5. Ms. Arshia Khatoon, the learned Counsel representing the revision petitioner had contended that the impugned ordersuffers from legal infirmity since an order of this nature granting permission to withdraw and further rejecting liberty to institute a fresh suit is unsustainable in law especially in the light of the view expressed by this Court in CRP No. 691 of 1969, dated 25-2-1970. The learned' Counsel also had contended that even otherwise under Order XXIII, Rule 1(3) CPC, the present case falls under the expression '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'. The learned Counsel also had submitted that in matters of this nature, the Courts are expected to adopt a liberal approach instead of adopting a very narrow and technical approach.
6. Mr. Nagaraj, the learned Counsel representing the respondent on the contrary had contended that the impugned order does not suffer from any illegality or jurisdictional error and the Court below is justified in making such an order in the facts and circumstances of the case. The learned Counsel also had submitted that Order XXIII, Rule 1(3) (a) and (b) CPC are to be read together in ejusdem generis and even if the expression 'sufficient ground' had to be construed liberally, those grounds should be analogous or similar to some formal defect or the like nature specified in Order XXIII, Rule 1(3)(a) CPC. The learned Counsel also had placed reliance on Kancherla Sarveswara Rao and Ors. v. Kancherla Veerraju and Ors., AIR 1957 AP 303, Somaraju Sree Kama Mohana Rao v. Somaraju Thulasi Prasada Rao and Ors., : AIR1963AP390 , Khatana and Anr. v. Ramsewak Kashinath, Partnership Firm and Anr., : AIR1986Ori1 , T. Savarira Pillai v. R.S.S. Vastrad and Company, : AIR1990Mad198 ; and also Annapoorna Fertilisers and General Stores v. Arunodaya Fertilisers and General Stores and Anr., : AIR1994AP157 .
7. The facts not in dispute arc that an application in IA No. 9 of 1999 in OS No. 506 of 1991 on the file of the Principal Senior Civil Judge, Visakhapatnam, was allowed in part granting permission to withdraw the suit only but not giving liberty to institute a fresh suit. The suit was instituted by a firm. The controversy arose because of the non-registration of the said firm on the date of the presentation of the suit. It appears that the said application was thought of by the petitioner-plaintiff in view of the decision reported in Atmuri Mahalakshmi and Ors. v. Jagadeesh Traders, : AIR1990AP288 , to the effect that the registration of a firm during the pendency of the suit will cure the defect. However, this view was not followed in a subsequent decision reported in Annapurna Fertilisers and General Stores v. Arunodaya Fertilisers and General Stores and Anr. (supra). All these aspects relate to the merits or demerits of the main suit. As far as the present application is concerned, the Court below had followed a via-media method of allowing the application in part and refusing the application in part. In T. Savariraj Piliai v. R.S.S. Vastrad and Company (supra) while dealing with the requirements of Section 69 of the Indian Partnership Act, under Order XXIII, Rule 1(3) of the Code of Civil Procedure, it was held that the non-compliance of requirement of the Section 69 of the Indian Partnership Act will render the suit void and permission to withdraw the same with liberty to file a fresh suit cannot be granted. In Khatauna and Anr. v. Ramsewak Kashinath, a Partnership Firm and Anr. (supra) it was held that the non-registration of a firm on the date of the institution of the suit is not a formal defect and hence, the provisions under Order XXIII, Rule 1 CPC, are not attracted. In A.V.S. Perumal v. Vadivelu Asari, : AIR1986Mad341 , it was held that if the plaintiff was unable to show how requirements of Order XXIII, Rule 1(3) CPC are satisfied, an order permitting withdrawal of suit is unsustainable.
8. In Somaraju Sree Rama Mohana Rao v. Somaraju Thulasi Prasada Rao and another (supra) it was held that though 'other sufficient grounds' need not be construed ejusdem generis with 'formal defect', grounds which are not at least analogous to what is meant by 'formal defect', should not weigh with Courts in granting permission. In Kancherla Sarveswara Rao and others v. Kancherla Veerraju and others (supra) it was held that the ejusdem generis rule does not apply to the construction of the words 'other sufficient grounds' and the formal defect mentioned in Order 23, Rule 1(2)(a) is illustrative of the grounds referred to in Clause (b) and although the grounds need not be ejusdem generis with the grounds mentioned in Clause (a), they must be 'atleast analogous' with them.
9. The learned Counsel for the respondent had strenuously contended that inasmuch as the registration of a firm is not a formal defect or it does not even fall under the expression 'sufficient grounds', the provisions of Order 23, Rule 1(3)(a) and (b) of the Code of Civil Procedure are not attracted at all in this matter. The learned Counsel for the respondent had also brought to my notice a decision reported in Delhi Development Authority v. Kochhar Construction Work and Anr., : (1998)8SCC559 , to the effect that initial defect of bar of institution of the suit by or on behalf of the unregistered firm cannot be cured by a subsequent registration of the firm. Even if the contentions of the learned Counsel for the respondent are accepted, then the impugned order in toto will be unsustainable and the consequence will be that the parties will be relegated to the original position as on the date of passing of the impugned order. The Court below in all fairness could have dismissed the application in toto and permitted the revision petitioner-plaintiff to further proceed with the suit tobe decided on merits. Instead the Court below had adopted a method of allowing the application in part and dismissing the application in part. In Marudhachala Nadar v. Chinna Muthu Nada and Anr., AIR 1932 Mad. 155(1), it was held that the application under Order 23, Rule 1(2) of the Code of Civil Procedure, 1908, must be treated as indivisible. In CRP No. 691 of 1969 by an order dated 25-2-1970 it was held that the Court has no jurisdiction to dissect the application of this nature into two separate individual portions and grant permission to withdraw and refuse permission to file a suit afresh. In the light of the foregoing discussion, since I am of the considered opinion that even allowing the application in part by the Court below is not sustainable, I am inclined to set aside the impugned order in toto by directing the Court below to consider the suit by permitting the parties to adduce necessary evidence and decide the suit on merits. Accordingly, the impugned order dated 26-7-1999 made in IA No. 9 of 1999 in OS No. 506 of 1991 on the file of the Principal Senior Civil Judge, Visakhapatnam, is hereby set aside in toto and consequently the application seeking permission to withdraw itself is dismissed and hence the consequence will be that the suit in OS No. 506 of 1991 on the file of the Principal Senior Civil Judge, Visakhapatnam shall have to be proceeded with further in accordance with law. Accordingly, the CRP is allowed to the extent indicated above with the directions specified supra. In the facts and circumstances of the case, no order as to costs.