LALLU Vs. BOARD OF REVENUE U P ALLAHABAD

JUDGEMENT

(1.) THE main question which arises for determination in this writ petition is whether the present suit, under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act, filed by the Gaon Sabha against the petitioner is barred by Order XXHI, Rule 1 (3), Civil Procedure Code. An earlier suit under the same provision being Suit No. 22 was filed by the Gaon Sabha against the petitioner. The Gaon Sabha made an application to the trial Court for permission to withdraw the suit. In the application the Gaon Sabha also prayed that it might be granted permission to file a fresh suit. On January 17, 1966, the trial Court p_assed the following order on this applica tion:- "Allowed to be withdrawn on pay ment of Rs. 8/- as costs." It is to be noticed that the order was completely silent whether the permission was or was not granted to file a fresh suit The present suit was filed on July 6, 1966. It was under the same provi sion and for the same relief. The petitioner contested the suit, inter alia, on the ground that it was barred on account of the earlier suit having been withdrawn, without any permission having been granted to file a fresh suit. The trial Court held that the present suit was barred and accordingly, dis missed it. On appeal by the Gaon Sabha, the Commissioner held that the suit was not barred by Order XXHI, Rule 1 (3), Civil Procedure Code. On merits, he found that the petitioner bad to claim to the land in dispute. He, accordingly, allowed the ap peal, set aside the judgment and decree of the trial Court and decreed the suit of the Gaon Sabha. The petitioner then filed a Second Appeal, but the Second Appeal hat been dismissed by the Board of Revenue. Hence this writ petition.

(2.) THE learned counsel for the peti tioner has urged that the present suit is clear ly barred by Order XXIH, Rule 1 (3), Civil Procedure Code. Order XXIII deals with the withdrawal and adjustment of suits. Rule 1 (1) empowers the plaintiff, at any time after the institution of the suit, to with draw his suit or abandon any part of hit claim against all or any of the defendants. Sub-rule (2) of Rule 1 then provides:-

(3.) IF any amount has been deposited In pursuance of the stay order, the same will be refunded to the petitioner. Petition allowed.