KULKARNI, J. ( 1 ) THIS is a plaintiff's revision against the order dated 28-5-1986 passed by the 7th Additional city Civil Judge, Bangalore City in O. S. 2795/86 dismissing. A. 1 filed under Order 23, Rule 1 (3) C. P. C. ( 2 ) THE respondent, who was the defendant in the Court below, had died before the institution of the suit in the lower Court itself. Therefore, the question of serving notice on her does not arise. It is undisputed that the defendant against whom the suit has been filed, had died prior to the institution of the suit itself. The plaintiff realised the same after the institution of the suit. Hence, he filed the Petition under Order 23, Rule 1 (3) C. P. C seeking permission to withdraw from the suit with liberty to file a fresh suit on the same cause of action. The Trial Court thought that the death of a party prior to the institution of the suit did not amount to a formal defect and so it refused permission to the plaintiffs to withdraw from the suit. ( 3 ) ORDER 23, Rule 1 (3) C. P. C. reads as : " (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) 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, it may, on such terms as thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit, in respect of the subject-matter of such suit or such part of the claim. " This Court had an occasion to deal with the matter where the sole defendant against whom the suit was filed had died before the filing of the suit. It is reported in C. Muthu v. Bharath Match works, 1963 (2) Mys. L. J. 341. This Court came to the conclusion that the suit brought against a person who is later discovered to have been dead at the time the suit was filed cannot be amended by substituting another person as defendant. It is reported in C. Muthu v. Bharath Match works, 1963 (2) Mys. L. J. 341. This Court came to the conclusion that the suit brought against a person who is later discovered to have been dead at the time the suit was filed cannot be amended by substituting another person as defendant. Clause (a) speaks about formal defect while Clause (b) speaks about there being sufficient grounds for allowing the plaintiff to withdraw from the suit with liberty to file a fresh suit. The distinction between these two phraseologies has been brought cut in Basappa Tippaca Durgannavar v. Bhimappa Ramappa durgannavar, 1968 (2) Mys. L. J. 355. This Court has held in the said decision as : "where the first suit was for possession and mesne profits in respect of one item of property claiming to be the heir of the last-holder and the second suit was for partition and possession of several items of properties on the ground that defendant was in possession as manager, and the first suit was withdrawn with liberty to file the second suit. Held the order giving permission was valid. " It has been further laid down as : "the words 'sufficient grounds' occurring in Order 23, Rule 1 (2) (b) CPC, should be read independently of the words 'formal defect' occurring in Clause (a ). The meaning to be given to the words should not be limited to the grounds afforded by defects which are analogous to formal defects referred to in Clause (a ). " ( 4 ) THE plaintiff has filed an affidavit stating that he did not know while filing the suit that the sole defendant against whom the suit was filed, had died. Therefore, this would amount to a sufficient ground within the meaning of Order 23, Rule 1 (3) (b ). Therefore, it was a case wherein the lower Court ought to have granted permission to the plaintiff to withdraw from the suit with liberty to file a fresh suit in respect of the same subject matter of the suit. ( 5 ) THEREFORE, the Order passed by the Court below is set aside. The plaintiff is permitted to withdraw from the suit with liberty file a fresh suit in respect of the same subject matter. The court-below may consider the application filed by the plaintiff for refund of the Court-fee.