Teja Singh, C.J. - (1.) THIS revision petition by the defendants arises out of a suit for a declarations that the site in dispute belonged to them (plffs.?) & the defendants had no right to interfere with their possession. They alleged that they bought the site from Arjan Mai Defendant 2 who with its original owner and since then they had been in possession. The contesting defendants denied the Plaintiff's title and possession and pleaded that they had been in adverse possession of the site for more than 12 years. They also contended that because the Plaintiffs had previously brought a similar suit for declaration and had withdrawn it without obtaining the permission of the Court for bringing a fresh suit, they were debarred from maintaining the present action. The trial Court held that the Plaintiffs were the owners of the site and overruling the defendants' pleas granted them the decree prayed for. The defendants appealed to the District Judge but failed. Hence they have filed this revision petition.
(2.) THE only question upon which arguments -have been addressed before me is whether the present suit was barred by the provision of Order 23 Rule 1 (3). The facts of the previous case are as follows: In Katik 2001 Samvat which corresponds to November 1944, Arjan Mal applied to a Magistrate for proceedings under Section 145 Cr. P.C. against Kulwant Rai and another who are contesting defendants in the present case. The Magistrate dismissed his application and directed him to seek his remedy in a civil Court. On this Arjan Mal brought a suit for possession of the site in the Panchait and obtained a decree on 4 -2 -2004 (17 -5 -47). On 9 -2 -2004 Arjan Mal applied for execution of the decree but on the application of the contesting defendants the execution proceedings were stayed. Afterwards Arjan Mai sold the site to the present Plaintiffs. On 27 -6 -2004 corresponding to 13 -10 -47 Arjan Mal and present Plaintiffs filed a suit for declaration against the present defendants that they were the owners of the site in Question and the defendants had no concern with it. The allegations that they made in the plaint were that Arfan was the owner of the site though the defendants had taken it from him for use that Arjan brought a suit for possession in the Panchait and after his claim had been decreed, he obtained possession and that Arjan had sold the site to the other Plaintiffs. As regards the suit it was stated in the plaint that it was being instituted because of the application made by the contesting defendants to the Panchait under Sections 34 and 35. (Evidently they meant Sections 37 and 38 of the Panchait Act, 2000). After the suit had been going on for some time i.e. on 26 -8 -2004 corresponding to 11 -12 -1947 the present Plaintiffs applied for permission to withdraw from the suit on the plea that since they had obtained possession of the site they did not consider it necessary to go on with the suit or to obtain a relief from the Court. A notice of the application was given to the contesting defendants and their counsel made a statement that he had no objection to the Plaintiffs' withdrawing from the suit under Order 23 Rule 1, but urged that his clients should be given their costs. The concluding words of the court's order are: "The Plaintiff is allowed to withdraw the case under the said provision. The case be filed." On 1 -9 -2004 the present contesting defendants sued the present Plaintiffs for possession of the site under Section 9 Specific Relief Act on the allegation that they had been forcibly dispossessed of the site within six months of the date of the suit. The trial Court dismissed the suit but a learned Judge of this Court set aside the trial Court's order in revision and granted the said defendants the decree for possession. It was on this that the present Plaintiff's instituted this suit on 2 -6 -1950.
(3.) ORDER 23, Rule 1 Sub -rule (1) lays down that at any time after the institution of the suit the Plaintiff may withdraw the suit or abandon part of his claim. Sub -rule (2) is to the effect that where the Court is satisfied that a suit must fail by reason of some formal defect or that there are some other 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 following are the words of Sub -rule (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. In the present case the Plaintiffs did apply for permission to withdraw from the first suit and the same was granted, but it was not stated in the order that they were at liberty to institute a fresh suit in respect of the subject -matter of the suit For this reason the contesting defendants maintained that the present suit was hit by Sub -rule (3). It was urged on behalf of the respondents that Sub -rule (3) had no applicability because the subject -matter of the present suit was different from that of the previous .;