Judgment.-

I have no doubt that the order of the learned District Munsiff granting leave to the plaintiff to institute a fresh suit for the same subject matter is incorrect. It is not necessary to go into the question whether the expression “other sufficient grounds” in sub-rule (2)(b) of rule 1 of Order 23 is ejusdem generis with the expression “some formal defect” in sub-rule (2)(a). This is a case where an appreciable portion of the material evidence was adduced and the plaintiff found that the evidence was insufficient to establish the case propounded by him in the plaint. To permit the plaintiff in these circumstances to institute a fresh suit on the same subject matter would be contrary to the letter as well as the spirit of sub-rule (2). The revision petition is allowed with costs and the order of the District Munsiff granting leave is reversed. O.S. No. 71 of 1945 will be restored by the District Munsiff to his file and proceeded with from the stage at which it was discontinued on granting leave. The costs deposited by the respondent-plaintiff in the lower Court as a condition precedent to the order granting leave may be refunded to the plaintiff if it is in Court. If it has been paid over to the defendant, it should be called in and paid to the plaintiff.

Petition allowed.