- (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 On January 17, 1966, the trial Court p_assed the following order on this applica tion:- "Allowed to be withdrawn on pay ment of Rs. 8/- as costs."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petitioner contested the suit, inter alia, on the ground that it was barred on account of the earlier suit having been withdrawn, without any permission having been granted to file a fresh suit.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:- "(2) Where the Court is satisfied- (a) that a suit must fail by reason of tome formal defect, of (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 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 consequence of the withdrawal are pro vided 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 imp leading the State Government has not been rejected, while the_ condition of pay ment of costs has been imposed." This view of the Board of Revenue is mani festly erroneous in law. The Court is em powered 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 predict granting liberty to institute a fresh suit. If no such specific order is passed granting liberty to institute a fresh suit, it is not per missible to infer such an order by "construc tive interpretation, " as the Board has done. Where two relief's are prayed for and the Court specifically grants one relief, the only inference that can be drawn is that the others relief has been refused, that being to, it must be taken that the trial Court in the earlier suit refused to grant permission to file a fresh suit. In the absence of such a permis sion, - the present suit is clearly barred by sub-Rule (3) of Rule 1 of Order XXII, C. P. C. The present suit being clearly barr ed, the Commissioner as well as the Board of Revenue have not only committed a mani fest 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. 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.
(3.) IF any amount has been deposited In pursuance of the stay order, the same will be refunded to the petitioner. Petition allowed.;