Amitava Lala, J. - (1.) THIS writ petition has been filed by the petitioners challenging the order impugned dated 23rd October, 2007 passed by the respondent No. 2 granting licence to respondent Nos. 3 and 4 for running cattle market in village Kheri Karamu, District Muzaffar Nagar. It appears to us that the petitioners prayed relief in the nature of mandamus directing the respondents not to permit holding of any cattle market on Tuesday within the radius of'8 kilometres of the plot of the petitioners.
(2.) MR. B. D. Mandhyan, learned senior Counsel appearing for the respondents Nos. 3 and 4 in whose favour the licence was granted, had taken preliminary objections in respect of maintainability of the writ petition. Firstly, a suit was instituted by the petitioners herein for certain reliefs in connection with their cattle market and an application for injunction was also filed therein. Although the application for withdrawal of the case has been made appropriate Civil Court but since the suit is pending, they cannot proceed with the writ petition for the similar reliefs in connection with their cattle market. In support of his contention, MR. Mandhyan has relied upon a Division Bench decision of this Court rendered in the case of Shri Ram Dutt and other v. New Okhla Industrial Development Authority and others, 1993 AIICJ 80. Paragraph-3 of the said Judgment as relevant for the said purpose is as follows : "3. Learned Counsel for the petitioner has in the end submitted that the petitioner is ready to give an under taking to withdraw the civil suit so as to enable him to pursue the remedy of writ under Article 226 of the Constitution. Such an undertaking will not help the petitioner. It is open to a person to choose the forum for redress of his grievance but having once selected the forum for resolving the dispute, it is not open to him to give it up without any rhyme or reason, it is against the public policy to permit a person to give up the remedy which he has a valid of without any just cause and then permit him to file a writ petition for the same relief. " Sri Anurag Khanna learned Counsel appearing for the petitioners submitted this Court that since the application for withdrawal of the suit has already been filed, the said Judgment has no much relevance. In support of his case, he has also cited a Judgment of this Court rendered in the case of Smt. Raisa Sultana Begam and others v. Abdul Qadir and others, AIR 1966 All 318,. Paragraph-8 of the said Judgment which is relevant for due consideration is quoted hereunder: "8. Since withdrawing a suit is a unilateral act to be done by the plaintiff, requires no permission or order of the Court and is not subject to any condition, it becomes effective as soon as it is done just as a compromise does. Any information of it given to the Court is no part of it, so also any order passed by the Court on receiving the information. The act is like a point and not continuous like a line having a beginning and an end. Either it is done or not done; there is nothing like its being done in completely or ineffectively. The consequence of an act of withdrawal is that the plaintiff ceases to be a plaintiff the Court. If he is the only plaintiff and withdraws the whole of the suit, the suit come to an end in and nothing remains pending the Court; if he is only one of several plaintiffs, he ceases to be a party and the suit of only the other plaintiffs continues. If he withdraws only a part of the suit that part goes out of jurisdiction of the Court and it is left with only the other part. This is the natural consequence of the act; a further consequence imposed by sub-rule (3) is that he cannot institute any fresh suit in respect of the subject-matter. He becomes subject to this bar as soon as he withdraws the suit. It follows as a corollary that he cannot revoke or withdraw the act of withdrawal. If he is absolutely barred from instituting a fresh suit, it means that he is absolutely barred from receiving his status as a plaintiff the Court. The bar on his instituting a fresh suit would be meaningless if he were permitted to revoke the withdrawal and get himself restored to the status of a plaintiff in respect of the withdrawn suit. There is no provision allowing revocation of the withdrawal. We respectfully agree with Horwill J. in Rajgopala Rao v. Bhanoji Rao, AIR 1940 Mad. 765, where he observed at page 766: "0. 23does not make any provision for withdrawing a withdrawal; and so it would seen that there is no provision in the Code whereby the withdrawal of a suit can be cancelled. The only thing that can now be done for the plaintiff is to grant her permission to file a fresh suit. " Therefore, we have to consider that point first, going into the merit of the case. According to us, the maintainability of the writ petition in this occasion will be guided by the observation of the Judgment as well as the provisions provided under the Code of Civil Procedure itself. Order XXIII Rule 1 of the Code of Civil Procedure, 1908 says that parties are entitled to withdraw the suit or make an abandonment of any part of the claim. The Division Bench of our High Court has held in Raisa Sultana's case (supra) that if the withdrawal is unilateral and as a corollary he cannot revoke or withdraw the act of withdrawal. Therefore, the law is clear to that extent. However, the Supreme Court has held in the case of Shri Ram Dutt (supra) only to the extent of such persons, who are wrong and taking the advantage of the situation and to protect the law Courts from such type of litigants. However, at the time of consideration no reference has been made as it has been held by the well considered Judgment of Raisa Sultana's case (supra). Next question as raised by Mr. Mandhyan is whether the appeal could lie against the order impugned or not. In that case, we have gone through the provisions of appeal as provided under Section 251 of the U. P. Kshettra Panchayat and Zila Panchayat Manual, 1961 (in short as the Manual, 1961). Section 251 of the said Manual is as follows : ' "251. Appeals from order of Zila Panchayat, - (1) Any person aggrieved by any order or direction made by a Zila Panchayat or a Kshettra Panchayat, as the case may be, under the powers conferred upon it by Sections 165 (1), 171, 184, 191 (6), 193,202,216,218,221 or under a bye-law made under sub-head (a) of Heading D and under Heading E of sub-section (2) of Section 239, may within thirty days from the date of such direction or order, exclusive of the time requisite for obtaining a copy thereof, appeal to such officers as the State Government may appoint, for the purpose of hearing such appeals or any of them or, failing such appointment, to the District Magistrate. "
(3.) SECTION 239 (2) H (I), of the Manual, 1961, provides as under: (I), regulating fairs, cattle markets, agricultural shows and industrial exhibition held under the authority or a Zila Panchayat or a Kshettra Panchayat, or otherwise, to which the public is allowed to access;" Mr. B. D. Mandhyan, learned senior Counsel and Mr. Krishna Mohan learned Counsel appearing for the respondents contended that case of the petitioners comes under the provisions of Section 239 (2) D (a) of the said Manual, which is as follows: "D-Markets Slaughter-houses, sale of food, etc. (a) Prohibiting the use of any place as a slaughter house, or as a market or shop for a sale of animals instead for human food or of meat, or of fish, in default of a licence granted by the Kshettra Panchayat or otherwise then in accordance with the conditions of a licence so granted;";