Judgement ORDER:- This is an application under Section 115 of the Code of Civil Procedure (hereinafter called the Code). The application has been made on behalf of the two defendants, the Union of India and the District Commercial Superintendent, N. F. Railway, Lumding and is directed against an order passed by the Assistant District Judge No. 2, Gauhati, under Order 23 Rule 1 of the Code. 2. The plaintiff instituted the suit in the Court of the Assistant District Judge, aforesaid, for a declaration that the plaintiff was "entitled to the assessment delivery of the goods under the Rule 1843 of the Indian Railway Commercial Manual Volume II", that the proposed sale of the goods on auction was illegal and void, and for a perpetual injunction. 3. The facts of the case, briefly stated, are that one consignment of 100 cases of Biri was booked self by one Khaliluddin Abdul Sattar of Ballygunge Railway Station on 13-8-1971 under Invoice No. 63, R/R No. C-743687 to be delivered at Karimganj Railway Station. The consignment arrived at the destination on 28-3-1972. The plaintiff was the endorsee of the railway receipt. So he demanded assessment delivery of the consignment, but the defendants refused to do so on the ground that assessment delivery was not warranted. The plaintiff, therefore, refused to take delivery of the consignment. Thereafter the consignment was brought to New Gauhati Railway Station for disposal by public auction under the provisions of Sections 55 and 56 of the Indian Railways Act. 4. The plaintiff then instituted in the Court of the Assistant District Judge, aforesaid, a suit being T. Suit No. 39/37 of 1972 for the reliefs mentioned above. Along with the plaint he also filed an application for granting a temporary injunction restraining the defendants not to sell the consignment in public auction and got an order in his favour. The order of temporary injunction was made absolute by the Court after hearing both the parties. The order of injunction was challenged before the High Court in M. A. (F) No. 63 of 1972 and the High Court eventually vacated the order of injunction. The defendants then sold the consignment by public auction on 26-2-1973 for a sum of Rs. 43,100/-. The order of injunction was challenged before the High Court in M. A. (F) No. 63 of 1972 and the High Court eventually vacated the order of injunction. The defendants then sold the consignment by public auction on 26-2-1973 for a sum of Rs. 43,100/-. The plaintiff then filed before the Assistant District Judge an application under Order 23 Rule 1 of the Code praying for permission to withdraw the suit with liberty to institute a fresh suit. The learned Court allowed the plaintiff to withdraw the suit with liberty to bring a fresh suit. The plaintiff was also directed to pay a cost of Rs. 30/- to the defendants. This order has been challenged by this application. 5. Shri P.P. Duara, learned counsel appearing for the defendant-petitioners, makes two submissions before me: (i) that "other sufficient grounds" within the meaning of clause (b) of sub-rule (2) of Rule 1 of Order 23 must be grounds analogous to the ground covered by clause (a) of the said sub-rule. His submission is that the ground on which the learned court below granted permission to allow the plaintiff to withdraw the suit with liberty to file a fresh suit must be a ground of the nature of formal defect and in the instant case it was not so. (ii) His second submission is that "other sufficient grounds" do not include a ground on which permission may be given to the plaintiff to file a fresh suit, which is barred by some provision of law. His submission is that in the instant case the Court has given the plaintiff liberty to file a fresh suit, which is barred by Order 2 Rule 2 of the Code. 6. There was divergence of opinion on the question whether other sufficient grounds within the meaning of clause (b) of sub-rule (2) of Rule 1 of Order 23 meant grounds analogous to the grounds within the meaning of clause (a). The Bombay and the Allahabad High Courts in their decisions reported in AIR 1940 Bom 121 (FB) and AIR 1951 All 845 (FB) supported the contention of the petitioners, while some other High Courts held the opposite view. So far as this Court is concerned, the law is well settled by a Division Bench decision of this Court reported in 1970 Assam LR 278, which has dissented from the view taken by Bombay and Allahabad High Courts. So far as this Court is concerned, the law is well settled by a Division Bench decision of this Court reported in 1970 Assam LR 278, which has dissented from the view taken by Bombay and Allahabad High Courts. This Court held: "We are, therefore, clearly of opinion that under Order 23, Rule (2), when the Court is satisfied that a suit must fail by reason of some formal defect, or defects analogous thereto, or when there are other sufficient grounds independent of formal defects or those analogous thereto entailing dismissal of a suit, it may allow the plaintiff to withdraw the suit or part of his claim with liberty to institute a fresh suit in an appropriate case." 7. When confronted with this decision, Shri P.P. Duara, learned counsel far the petitioners, very fairly concedes that in view of the above decision he cannot press his first submission. 8. Learned counsel then strenuously urges his second submission. His submission is that the relief, the plaintiff is going to seek in the proposed suit, was the relief which could have been sought in the present suit, but as he has not done so, the relief will be barred under Order 2 Rule 2 of the Code. The effect of the permission given by the Assistant District Judge would be, he submits, to enable the plaintiff to file a suit for a relief barred by law. 9. Order 2 Rule 2, sub-rule (3) of the Code provides : "(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." The bar of the relief contemplated by sub-rule (3) of Rule 2 of Order 2 is against a relief, which has been omitted in an earlier suit but is sought in a subsequent suit. This can be examined only in the subsequent suit and not in an application under Order 23 Rule 1 of the Code, inasmuch as the plaint of the proposed suit is not before the Court. This plea may be taken only in the subsequent suit. 10. Order 23 Rule 1 (2) (b) of the Code provides : "(2) Where the Court is satisfied- (a).... ..... ..... This plea may be taken only in the subsequent suit. 10. Order 23 Rule 1 (2) (b) of the Code provides : "(2) Where the Court is satisfied- (a).... ..... ..... (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim." The satisfaction with regard to the sufficiency of the ground is of the Court concerned and when it considers all the facts and circumstances before it and comes to the conclusion that there are sufficient grounds for allowing the plaintiff to institute a fresh suit it can pass the order. This Court in 1970 Assam LR 278 observed : "Whether there are sufficient grounds will always be a question for consideration of the Court and no exhaustive rule can be indicated". The learned Assistant District Judge has observed that in view of the fact that the consignment of Biri has already been sold in auction, the present suit would be infructuous and the proposed suit of the plaintiff for compensation could be the only alternative. By this finding the learned Assistant District Judge has committed no error of jurisdiction and as such cannot be interfered with in an application under Section 115 of the Code. 11. In the result this application is rejected with costs and the Rule is discharged. Hearing fee Rs. 50/-. Petition dismissed.