Wort, J.

1. This Rule was directed against the order of the Munsif of Gaya allowing the plaintiff to withdraw a suit and to bring a fresh suit. The learned Judge purported to act under O. 23, R. 1, Civil P.C., in making that order. The matter seems to me to be a very clear case, and I have no doubt whatever that the order of the Judge in the Court below was wrong. But the only question which arises is whether this Court has power to set aside the order in revision as relating to a matter of jurisdiction It is contended by the advocate appearing on behalf of the respondent to this application that the question which the Judge had to decide was one within his jurisdiction and therefore the application before this Court must fail. In this connexion however I propose to and indeed I must follow the decision of this Court more particularly in Nathuni Ram v. Sheo Koer, 1918 Pat 452 = 46 I C 170 = 3 Pat L J 460 and Uchant Ahir v. Basawan Ahir, 1921 Pat 42 = 61 I C 639 = 6 Pat L J 112. But in addition to following those authorities I propose shortly to state my reasons. The case of Robert Watson & Co. v. Collector of Rajshahye, (1869) 13 M I A 160 = 12 W R 43 = 3 Beng L R 48 = 2 Suther 269 = 2 Sar 500 (PC) is important only in the sense that it decided that the mofussil Courts in India had no jurisdiction to enter a non-suit as the Courts in England had at that time. Therefore the only jurisdiction that a Court in the mofussil can possibly have in these matters is contained in the Civil Procedure Code, O. 23, R. 1, and any attempt to make an order such as this, which in effect is an order of a non-suit, unless it can be brought within the specific provisions laid down by the legislature, must be held to be without jurisdiction.

2. Now what the Judge in this case has done is to discuss the grounds upon which the plaintiff's suit must fail, or, in other words, the grounds upon which the plaintiff ought to be allowed to withdraw his suit. Had the matter rested there, the petitioner before this Court would be in a very considerable difficulty, because it might be argued that what the Judge was deciding was merely a question of law. But what actually happened was that the Judge discussing the grounds upon which the suit must fail, which were certainly not grounds under Cl. (a), sub-R. 2, R. 1, goes on to state that he found it a fit case in which leave to bring a fresh suit should be granted to the plaintiff. In other words, he proceeded first of all to decide on what grounds the suit would fall under Cl. (a) and then made his order under Cl. (b), for let it be noted that the two sub-clauses are disjunctive. Now it is obvious that there was no formal defect in the suit.

3. It was a matter of evidence, and had the matter gone on and been heard and determined, it is quite possible the plaintiff's suit would fail not for some formal defect but fail by reason of the lack of evidence. That does not bring it under Cl. (a). Now the Judge has come to no conclusion whatever which would appear to be the basis or can be the basis of his order that it was a fit case in which leave should be given to bring a fresh suit. Some of the authorities have purported to hold that Cl. (b) must be read ejusdem generis with Cl. (a), and there is a great deal to be said for that point of view ; because there can be no ground for bringing a fresh suit unless it be that the plaintiff has got evidence to support his cause of action, and that indeed cannot be a ground for holding that the plaintiff's action should be withdrawn and a fresh suit to be allowed. Therefore from that point of view it seems clear that Cl. (b), although disjunctive as I have said, must be read ejusdem generis to Cl. (a). But I do not purport to decide the case on that ground. I decide it on the ground that the Judge has not brought the case within Cl. (a) quite clearly, and has set out no grounds at all why the plaintiff should be allowed to bring a fresh suit. Unless he does one or the other of those, the Judge certainly had no jurisdiction to make the order. That being so, the order of the Munsif will be set aside with costs ; hearing fee two gold mohurs.