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Lallu Vs. the Board of Revenue, U.P., Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 3938 of 1970
Judge
Reported inAIR1973All195
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 1(2) and 1(3); Constitution of India - Article 226
AppellantLallu
RespondentThe Board of Revenue, U.P., Allahabad and ors.
Appellant AdvocateG.N. Verma, Adv.
Respondent AdvocateR.S. Singh and ;R.B. Gargh, Advs.
DispositionPetition allowed
Excerpt:
.....fresh suit - order 23, rule 1 (2) and (3) of code of civil procedure, 1908 - liberty to institute fresh suit can be granted after examination of full circumstances - specific order must be passed - inferring such order by positive interpretation of order. - - 2. the learned counsel for the petitioner has urged that the present suit is clearly barred by order xxiii, rule 1 (3), civil procedure code. --(2) where the court is satisfied- (a) that a suit must fail by reason of some formal defect, or (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 op abandon such part of a claim with liberty..........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 xxiii, 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 on january 17, 1966, the trial court passed the following order on this application:-- 'allowed to be withdrawn on payment of rs. 8/- as costs.'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.....
Judgment:
ORDER

G.C. Mathur, J.

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 XXIII, 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 passed the following order on this application:-- 'Allowed to be withdrawn on payment 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 provision and for the same relief. The petitioner contested the suit, inter alia, on the ground that it was barred on account of the earlier wit 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, dismissed it. On appeal by the Gaon Sabha, the Commissioner held that the suit was not barred by Order XXIII, Rule 1 (3), Civil Procedure Code. On merits, he found that the petitioner had no claim to the land indispute. He, accordingly, allowed the appeal, 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 has been dismissed by the Board of Revenue. Hence this writ petition.

2. The learned counsel for the petitioner has urged that the present suit is clearly barred by Order XXIII, 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 withdraw his suit or abandon any part of his claim against all or any of the defendants. Sub-rule (2) of Rule 1 then provides:--

'(2) Where the Court is satisfied-

(a) that a suit must fail by reason of some formal defect, or

(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 op 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 consequence of the withdrawal are provided by Sub-rule (3) of Rule 1, which reads thus:--

'(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub-rule (2), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.'

The order in the earlier suit was silent about the granting of permission to institute a fresh suit. The Board of Revenue thought that this was not a complete order and observed:--

'The constructive interpretation which can be placed on this is that the prayer of the Gaon Sabha to bring a fresh suit after impleading the State Government has not been rejected, while the condition of payment of costs has been imposed.'

This view of the Board of Revenue is manifestly erroneous in law. The Court is empowered to grant the liberty to institute a fresh suit only after finding that the suit must fail by reason of some formal defect or that there are other sufficient grounds for granting the liberty. After recording these findings the Court must pass a specific order granting liberty to institute a fresh suit. If no such specific order is passed granting liberty to institute a fresh suit, it is not permissible to infer such an order by 'constructive interpretation,' as the Board has done. Where two reliefs are prayed for and the Court specifically grants one relief, the only inference that can be drawn is that the other relief has been refused. That being so, itmust be taken that the trial Court in the ear-lier suit refused to grant permission to file a fresh suit. In the absence of such a permission, the present suit is clearly barred by sub-Rule (3) of Rule 1 of Order XXIII, C. P. C. The present suit being clearly barfed, the Commissioner as well as the Board of Revenue have not only committed a manifest error of law in holding that suit was not barred but have also committed an error of jurisdiction in entertaining the suit and in decreeing the same.

3. The writ petition is, accordingly, allowed and the judgments and decrees of the Commissioner and of the Board of Revenue are quashed. There will be no orders as to costs.

4. If any amount has been deposited in pursuance of the stay order, the same will be refunded to the petitioner.


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