JUDGMENT : Goutam Bhaduri, J. 1. Heard. 2. This appeal is against the judgment and decree passed by the Court of 2nd Additional District Judge, Raigarh on 19.3.2019 in Civil Suit B No.53/2016 whereby a decree of Rs.11,21,000/- has been passed in favour of the plaintiff. 3. The parties to the appeal i.e., the appellant and the respondent No.1 entered into an agreement on 15.1.2009 for purchase of certain land ad-measuring 39870 square feet situated at village Jagatpur, Patwari Halka No.14, Tahsil and District Raigarh for an amount of Rs. 4,21,00,000/-. Out of such sale consideration, an amount of Rs.11,21,000/- was paid as earnest money by the respondent No.1. When the sale could not materialize, the respondent No.1/plaintiff served a notice on 20.6.2009 and subsequent notice on 10.8.2009 which was replied by the defendant / appellants herein, but, eventually the agreement could not materialize and sometime in the year 2011, Ramdas Agrawal (respondent herein) filed a suit for declaration and injunction against Gagan Rathi and Pawan Agrawal (appellants). Subsequently, the said suit bearing Civil Suit No.44A / 2011 was returned by the learned trial Court invoking the provision under Order VII Rule 10(2) of the Civil Procedure Code (for short “the CPC”) to file it before the appropriate Court under Order VII Rule 10 of the CPC for want of Court fee. The said suit was never filed, however, subsequently, a second civil suit was filed on 13.1.2012 bearing Civil Suit No. 27A/2012. The said suit was filed for specific performance of the contract dated 15.1.2009 and for return of the earnest money. 4. The Civil Suit No. 27A/2012 was withdrawn on 1.10.2016 at the request of the plaintiff on an application filed under Order XXIII Rule 1 (3) (b) of the CPC. The learned District Judge granted permission of withdrawal with a liberty to file a fresh suit in respect of the subject property. Thereafter, the present suit was filed on 3.10.2016 bearing Civil Suit B No. 53/2016 wherein the plaintiff claimed for return of the earnest money and amount of damages to the tune of Rs.10,00,000/- (10 Lakhs). 5. The Additional District Judge, Raigarh framed certain issues. The pertinent issues are No. 4 and 6. Issue No.4 was with respect to the limitation and Issue No.6 was with respect to the fact that whether the suit was barred under Order II Rule 2 of the CPC. 5. The Additional District Judge, Raigarh framed certain issues. The pertinent issues are No. 4 and 6. Issue No.4 was with respect to the limitation and Issue No.6 was with respect to the fact that whether the suit was barred under Order II Rule 2 of the CPC. The learned Court held it in favour of the respondent No.1/plaintiff and decreed the suit for return of the earnest money. Hence, this appeal. 6. Learned counsel for the appellants would submit that prior to the suit in which the decree is under challenge, initially, the plaintiff had filed a suit for permanent injunction which was returned and the suit for permanent injunction (Exhibit D1) was against Pawan Agrawal and Gagan Rathi in their personal capacity. He would further submit that the said suit having been returned invoking the power under Order VII Rule 10 (2) of the CPC, subsequent civil suit was filed against Shri Krishna Builders and Developers, Raigarh through its partners Gagan Rathi and Pawan Agrawal which is Exhibit D2. The said civil suit was withdrawn on an application filed by the plaintiff under Order XXIII Rule 1 (3) (b) of the CPC. It is submitted that the said withdrawal of suit and liberty granted was affirmed by the High Court vide its judgment dated 20.9.2017 passed in WP227 No.790 of 2016. He would submit that subsequent Civil Suit B No.53 of 2016 (the instant one) was again filed by plaintiff not against the partnership firm but against the partners Gagan Rathi and Pawan Agrawal. He would submit that since the subsequent suit was filed on 03.10.2016 which was based on an agreement dated 15.1.2009 and refusal of subsequent civil suit, which was barred by time under Order XXIII as Order XXIII Rule 2 of the CPC would not save the limitation. Further reference is made to Section 14 of the Limitation Act, 1963 to submit that benefit of Section 14 to exclude the limitation can only be given in case the earlier suit filed was adjudicated for defect in jurisdiction or other cause of like nature. 7. Reliance is placed on the judgments passed by the Hon'ble Supreme Court in the matters of Deena (Dead) through LRs. Vs. Bharat Singh (Dead) through Lrs. & Others reported in [ (2002) 6 SCC 336 ], Zafa Khand & Others Vs. 7. Reliance is placed on the judgments passed by the Hon'ble Supreme Court in the matters of Deena (Dead) through LRs. Vs. Bharat Singh (Dead) through Lrs. & Others reported in [ (2002) 6 SCC 336 ], Zafa Khand & Others Vs. Board of Revenue, U.P. & Others reported in [1984 (Supp) SCC 505] and Gurdit Singh & Others Vs. Munsha Singh & Others reported in [ (1977) 1 SCC 791 ] to submit that the defect of jurisdiction or other cause of like nature denotes that the Court must lack jurisdiction to entertain the suit or proceeding, therefore, the exclusion of the period of pendency is granted. It is stated in earlier suit, when was withdrawn by invoking Order XXIII Rule 1 of the CPC it was not on jurisdictional issue and the withdrawal cannot be read in favour as to condone the limitation as the word used in Section 14 of the Limitation Act, 1963 ought to be construed ejusdem generis with the words “defect of jurisdiction” . He would further submit that the subsequent suit for refund of the earnest money shall also be barred under Order II Rule 2 of the CPC, inasmuch as even taking into consideration the first suit in which the liberty was given was against the partnership firm and not against the individual partners. He would further place reliance upon the judgments passed by the Hon'ble Supreme Court in the matters of State Bank of India Vs. Gracure Pharmaceuticals Limited reported in [ (2014) 3 SCC 595 ] and Raptakos Brett And Company Limited Vs. Ganesh Property reported in [ (2017) 10 SCC 643 ] and submit that the finding of the learned Court below is perverse, against the law and needs to be set-aside. 8. Per contra, learned counsel for the respondent would submit that the agreement Exhibit P1 was in between Ramdas Agrawal and Pawan Agrawal & Gagan Rathi in their individual capacity though they were partners of the firm. He would submit that the property in question which is shown in the agreement was property of partnership firm namely Shri Krishna Builders and Developers which was being dealt by the individual partners in their capacity as such. 9. Referring to the notice dated 10.8.2009 (Exhibit P2) and the reply to notice dated 18.8.2009 (Exhibit P4) he would submit that the appellant/ defendant admitted to return the earnest money. 9. Referring to the notice dated 10.8.2009 (Exhibit P2) and the reply to notice dated 18.8.2009 (Exhibit P4) he would submit that the appellant/ defendant admitted to return the earnest money. He would further submit that the first injunction suit was filed against Pawan Agrawal and Gagan Rathi which was returned on 20.6.2011 (Exhibit D1) and thereafter the suit for specific performance and return of advance was filed on 13.1.2012 (Exhibit D2). He would again submit that after filing of the said civil suit, the plaintiff came to know about the mischief by the defendant that the subject property was sold to third parties and certain defects and interpolation in the documents of layout, came to their knowledge, as such, filed an application under Order XXIII Rule 1 (3) (b) with a liberty to file a fresh suit. The liberty to file a fresh suit was granted by the Court in Civil Suit No.27A of 2012 on 01.10.2016 (Exhibit D2) and on the basis of the liberty granted in the earlier suit, the subsequent civil suit was filed. 10. Answering to the issues No. 4 and 6 which pertains to limitation and the bar of the suit respectively, he would submit that when the liberty was granted by the Court inclusive of the entire claim, the earlier suit which included the return of the amount of earnest money, the same cannot be held to be barred. He relied upon the judgment rendered by the Hon'ble Supreme Court in the matters of Gurinderpal Vs. Jagmittar Singh [ (2004) 11 SCC 219 ] and Sucha Singh Sodhi (Dead) through legal representatives Vs. Baldev Raj Walia And Another reported in [ (2018) 6 SCC 733 ] to submit that the cause of action for the cases was also different. 11. Further making a submission on Section 14 of the Limitation Act, 1963 reliance is placed in the judgment rendered by the Hon'ble Supreme Court in the matters of Roshanlal Kuthalia & Others Vs. R.B. Mohan Singh Oberoi reported in [ (1975) 4 SCC 628 ] and Union of India & Others Vs. West Coast Paper Mills Ltd. & Another reported in [ (2004) 3 SCC 458 ] and Mohinder Singh (Dead) through legal representatives Vs. R.B. Mohan Singh Oberoi reported in [ (1975) 4 SCC 628 ] and Union of India & Others Vs. West Coast Paper Mills Ltd. & Another reported in [ (2004) 3 SCC 458 ] and Mohinder Singh (Dead) through legal representatives Vs. Paramjit Singh & Others reported in [ (2018) 5 SCC 698 ] to submit the substantial identity of subject-matter of the lis is a pragmatic test and while interpreting such section liberal touch must be adopted. With respect to the partnership, reference is made to the judgment rendered by the Supreme Court in the matter of Purushottam Umedbhai and Co. Vs. M/s. Manilal and Sons reported in [ AIR 1961 SC 325 ] to submit that when the partners have been sued, the word “firm” or the “firm name” is merely a compendious description of all the partners collectively, therefore, the order is well merited and does not call for interference. 12.We have heard learned counsel for the parties and perused the records. 13. On 15.1.2009, an agreement (Exhibit P1) for purchase of property was entered in between Pawan Agrawal and Gagan Rathi being sellers with Ramdas Agrawal, the purchaser, who is the plaintiff. The perusal of the agreement would show that the subject property to be shown as property of partnership firm Shri Krishna Builders and Developers. It further purports that sale agreement was for Rs.4,21,00,000/- and out of that, Rs.11,21,000/- were paid, as the earnest money. The said agreement could not be honored by the parties which led to dispute, as such the notices were exchanged between them. On 10.8.2009, notice (Exhibit P2) was served to Pawan Agrawal and Gagan Rathi by Ramdas Agrawal which was replied vide Exhibit P4 by them on 18.8.2009. Perusal of the said reply by the appellants shows that they offered to return the sum of earnest money of Rs.11,21,000/-. Subsequently, it appears that, that also did not materialize and eventually a civil suit was filed by Ramdas Agrawal seeking permanent injunction against Pawan Agrawal and Gagan Rathi wherein the learned Civil Judge, Class II by an order dated 20.6.2011, returned the said civil suit with observation that the original lis appears to be for specific performance and since less Court fee was paid, the plaint was returned for presentation to proper Court with adequate Court fees. However, such civil suit was not filed again. 14. However, such civil suit was not filed again. 14. Subsequently thereto a civil suit for specific performance and for return of advance money was filed on 13.1.2012 by respondent (plaintiff) which came to be withdrawn on 01.10.2016 (Exhibit D2). The perusal of withdrawal order would show that description of the parties as defendant is shown as Shri Krishna Builders and Developers through partners Gagan Rathi (appellant No.1) and Pawan Agrawal (appellant No.2). The submission of the appellant that it was exclusively against the partnership firm namely Shri Krishna Builders and Developers cannot be accepted for the reason that perusal of the cause title of the said suit would show that Gagan Rathi and Pawan Agrawal, who are residents of different place Raigarh and Bilaspur respectively were individually arrayed and their status was shown as partners of Shri Krishna Builders and Developers. Further the perusal of the order passed by the Court of District Judge would show that the Court recorded the fact that after filing of the said suit, certain further sales have been executed in favour of the third parties, therefore, it may lead to multiplicity of the proceedings and for the reason the defendants No.1 and 2, who are Gagan Rathi and Pawan Agrawal (not as a partners) since have sold the subject property in favour of the third parties and particulars of such are required to be adjudicated, therefore, as a result, the prayer for withdrawal was found to be proper and eventually the Court directed for withdrawal of the said suit with liberty to file a fresh suit in respect of the suit property and the part thereof in favour of the plaintiff/ respondent. 15. Order XXIII Rule 1 sub Rule 3 of the Civil Procedure Code which allows the withdrawal and adjustment of the suit is reproduced here under:- “(3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) the 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 it 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.” 16. Plain reading of the sub Rule 3 (b) would show that when 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, on satisfaction of the Court, the Court may order accordingly. 17. The second question which falls for consideration as to whether the subsequent suit which was filed for refund of the advance and damages on 03.10.2016 was whether within limitation and whether limitation can be saved or not by virtue of Section 14 of the Limitation Act, 1963. The relevant part Section 14(3) of the Limitation Act, 1963 which would be necessary for adjudication is reproduced here under :- "14 (3). Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.” 18. The Supreme Court in the matter of Roshanlal Kuthalia (Supra) interpreted the scope of Section 14 of the Limitation Act, 1963. The Court held that in order to give the protection benefit of Section 14 (3), the primary issue would be the substantial identity of the subject-matter of the lis would be a pragmatic test which would include within its scope any circumstance legal or factual, which inhibits entertainment or consideration by Court of the dispute on merits and liberal touch must inform the interpretation of the said Section. The paragraph 27 of the said judgment which would be relevant is reproduced here under:- “27. Certainly, Section 14 is wide enough to cover periods covered by execution proceedings (See 1959 SCR 811 at 818 [Raghunath Das v. Gokul Chand, AIR 1958 SC 827 , 831 : 1959 SCR 811 , 818] ). After all Section 47 itself contemplates transmigration of souls as it were of execution petitions and suits. The substantial identity of the subject-matter of the lis is a pragmatic test. Moreover, the defects that will attract the provision are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. After all Section 47 itself contemplates transmigration of souls as it were of execution petitions and suits. The substantial identity of the subject-matter of the lis is a pragmatic test. Moreover, the defects that will attract the provision are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstance legal or factual, which inhibits entertainment or consideration by the court of the dispute on the merits, comes within the scope of the section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right [See (1971) 2 SCR 397 at 401 [India Electric Works Ltd. v. James Mantosh, AIR 1971 SC 2313 , 2316 : (1971) 2 SCR 397 , 401] ]. In the Associated Hotels case (i. e. the very lis in its earlier round on the execution side) this Court pointed out [ (1961) 1 SCR 259 at 272 [Associated Hotels of India Ltd. v. R.B. Jodhu Mal Kuthalia, AIR 1961 SC 156 , 163] that the question was one of initial jurisdiction of the Court to entertain the proceedings. Thus in this very matter, the obstacle was jurisdictional and the exclusionary operation of Section 14 of the Limitation Act was attracted.” 19.The Supreme Court in the matter of Union Of India (Supra) reported in [ (2004) 3 SCC 458 ] has further relied on the principle laid down in the matter of Roshanlal Kuthalia (Supra) and at paragraph 14 has held as under :- “14. In the submission of Mr Malhotra, placing reliance on CST v. Parson Tools and Plants [ (1975) 4 SCC 22 : 1975 SCC (Tax) 185] , to attract the applicability of Section 14 of the Limitation Act, the following requirements must be specified: (SCC p. 25, para 6) ‘6. In the submission of Mr Malhotra, placing reliance on CST v. Parson Tools and Plants [ (1975) 4 SCC 22 : 1975 SCC (Tax) 185] , to attract the applicability of Section 14 of the Limitation Act, the following requirements must be specified: (SCC p. 25, para 6) ‘6. (1) both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) the prior proceedings had been prosecuted with due diligence and in good faith; (3) the failure of the prior proceedings was due to a defect of jurisdiction or other cause of a like nature; (4) both the proceedings are proceedings in a court.’ In the submission of the learned Senior Counsel, filing of civil writ petition claiming money relief cannot be said to be a proceeding instituted in good faith and secondly, dismissal of writ petition on the ground that it was not an appropriate remedy for seeking money relief cannot be said to be “defect of jurisdiction or other cause of a like nature” within the meaning of Section 14 of the Limitation Act. It is true that the writ petition was not dismissed by the High Court on the ground of defect of jurisdiction. However, Section 14 of the Limitation Act is wide in its application, inasmuch as it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to cases where the prior proceedings have failed on account of other causes of like nature. The expression “other cause of like nature” came up for the consideration of this Court in Roshanlal Kuthalia v. R.B. Mohan Singh Oberoi [ (1975) 4 SCC 628 ] and it was held that Section 14 of the Limitation Act is wide enough to cover such cases where the defects are not merely jurisdictional strictly so-called but others more or less neighbours to such deficiencies. Any circumstance, legal or factual, which inhibits entertainment or consideration by the court of the dispute on the merits comes within the scope of the section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right.” 20. The Supreme Court recently in the matter of Mohinder Singh (Supra) further reiterated the said view at paragraph 23 which is reproduced here under:- “23. The Supreme Court recently in the matter of Mohinder Singh (Supra) further reiterated the said view at paragraph 23 which is reproduced here under:- “23. The expanse of Section 14 of the Act, therefore, is not limited to mere jurisdictional issue but also other cause of a like nature. Taking cue from this decision, the appellant would contend that the plaintiff immediately after compromise judgment was pronounced on 20-8-1963 took recourse to Execution Petition No. 433 of 1964 on 23-12-1964 but the same was dismissed by the executing court on 7-8-1965, as being premature. The plaintiff verily believed that the execution of the decree passed in the previous suit would result in getting possession of the property albeit after the death of Ujjagar Singh. Consequently, after the death of Ujjagar Singh on 14-1-1971, the plaintiff moved second execution petition on 18-2-1971 and in those proceedings moved an application for summoning the file with a decree-sheet. It transpired that the decree was drawn and the decree-sheet was made ready on 19-8-1972, but the said execution petition stood dismissed for default on 2-2-1973. For that reason, the appellant on the same day moved the third execution petition i.e. on 2-2-1973 which, however, was dismissed on 2-2-1974 on the ground that the remedy for the plaintiff to get possession of the suit property was to file a suit for possession on the basis of the declaratory decree. It is only thereafter the plaintiff resorted to the subject suit, being Civil Suit No. 173 of 1974 filed on 11-6-1974.” 21.The order of withdrawal by the District Judge dated 01.10.2016 when translated in the facts of the above principle it shows that while allowing the withdrawal, the subject matter of the suit was taken in its entirety including the part thereof which would certainly envelope the claim for part of amount paid as an advance for purchase of the property is earnest money. Therefore, the submission of the appellant that the defect of jurisdiction would be construed as other cause of like nature as ejusdem generis cannot be interpreted as has been advanced by the learned counsel for the appellant. Therefore, the submission of the appellant that the defect of jurisdiction would be construed as other cause of like nature as ejusdem generis cannot be interpreted as has been advanced by the learned counsel for the appellant. In the case in hand the defect in jurisdiction cannot be solely interpreted otherwise when it is read with Order XXIII Rule 3 (b) of the Civil Procedure Code, whereby, the District Judge has exercised his power that sufficient ground exists for the plaintiff to file a fresh suit. In respect of Order II Rule 2 objection that in the earlier suit liberty was given against the partnership firm and the subsequent suit has been filed against the partners alone, we are unable to agree with the submissions of the appellants. The perusal of the cause title of the earlier suit would show that it was not against the partnership firm alone and the presence of the defendant shows their identity being partners of firm and while allowing the application under Order XXIII Rule 1, the District Court evaluated the role played individually by defendants No.1 & 2, and not as a partners of firm. 22. Apart from this fact, as has been laid down by the Supreme Court in the matter of Purushottam Umedbhai (Supra) the word “firm” is the “firm name” which is a merely compendious description of all the partners collectively. When the description of the parties is clear and distinct, this cannot be amalgamated to give a narrow interpretation to hold that the subsequent suit was barred under Order II Rule 2 of the CPC. 23. In view of the aforesaid observation, we are of the view that the judgment and decree passed by learned Court below do not call for any interference and accordingly the appeal is dismissed. 24. Decree be drawn accordingly. No order as to cost.