- (1.) SHYAMLAL This is an application in revision against an appellate order of the Additional Commissioner, Jaipur, dated 25. 9. 1951 confirming an appellate order of the Collector Alwar, whereby the findings of the trial court on issues numbers I and 2 as regards the maintainability or the suit were upheld.
(2.) THE learned counsel appearing on behalf of the appellant has frankly conceded before us that the principle of res judicata is not applicable to the present case, and hence the contention as regards the suit being barred by res judicata was not pressed before us. Thus the only point involved for determination now is whether the suit is barred by Order 23 Rule 1 (3) of the Civil Procedure Code or not. THE facts of the case are not at all in dispute. THE opposite party (Plaintiff) filed a suit in respect of this very cause of action which was decided on 23. 7. 1949 by the following order (our translation ). "bhagwan has stated that he has filed an application before the S. D. O. Dies not want to prosecute the suit. May be consigned to record. " It appears that subsequent to the institution of the suit Bhagwana had presented an application before the S. D. O. Behror under sec. 7 of the Ordinance on 15. 7. 1949. The application referred to by Bhagwana in his above statement dated 23. 7. 1949 is obviously this application under the Ordinance. This application under the Ordinance did not meet with any success and was ultimately rejected by this Board on 21. 2. 1950. It was after this decision i. e. on 7. 3. 1950 that the present suit was instituted wherein the plea of res judicata and bar under order 23 rule 1 Civil Procedure Code was raised. It is true that sec. 20 of the Alwar State Revenue Code 1925 expressly makes the provisions of the Civil Procedure Code applicable to recording of statements and execution of decrees. This section is contained in Chap. 3 of the Code comprising 9 sections. Sec. 14 deals with persons by whom appearances and applications may be made before a revenue officer. Sec. 15 gives the power to revenue officers to summon persons. Sec. 16 prescribes the mode of service of summonses. Sec. 17 is about mode of service of notice. Sec. 18 gives mode of making proclamations. Sec. 19 gives powers of Minister regarding cases heard by subordinate revenue courts beyond their jurisdiction. Sec. 20 as pointed out above, makes the provisions of the Civil Procedure Code applicable to recording to statements and execution of decrees mutatis mutandis. Sec. 21 bars judicial suits in respect of certain revenue matters. sec. 22 relates to reference to a civil court by a revenue court. It would thus appear that the chapter is silent on other procedural matters, e. g. trial of suits, judgment, decrees etc. As laid down in sec. 4 of the Civil Procedure Code it is only when anything in the Civil Procedure Code is in confict with anything in the special or local law or with any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law, that the Code will not prevail so as to override such inconsistent provisions. Otherwise the Code will apply. Sec. 5 authorises the State Government to notify modifications regarding the application of the Civil Procedure Code to revenue courts. The Code is, therefore, applicable to the procedure of the revenue courts except where its operation is negatived by the special or local law governing such suits or by notification under sec. 5. As pointed out above Alwar State Revenue Code 1925 gives the procedure in respect of a few matters only e. g. recording of statements, execution of decrees, summonses, notification etc. Other matters have no mention in that Code and the natural presumption would be that those were left to be governed by the Civil Procedure Code. If there could be any doubts in this matter they have been set at rest finally by the adaptation of the Civil Procedure Code in the then Alwar State in 1947, We have therefore, no hesitation in holding that the original suit having been withdrawn without obtaining the requisite permission of the court the plaintiff opposite party, is precluded from filing a fresh suit in respect of the same cause of action. We, therefore, allow the revision, set aside the order of Che lower courts and direct that the suit shall stand dismissed on the ground that it is barred under Order 23 Rule 1 (3) Civil Procedure Code.;