- (1.) THIS revision petition has been filed against the order of the learned Civil Judge, Phalodi dated August 6, 1993 by which the plain-tiff-petitioners have not been permitted to withdraw their suit against the defendant-non- petitioner No. 2, Gram Panchayat, Lphawat. The facts of the case giving rise to this revision petition may be summarised thus.
(2.) THE plaintiff-petitianers have filed a suit for declaration and demolition of the construction made by the defendant No. l Jeet Mal on the land of public way. In their written statement, the defendants raised objection that the suit is not maintainable as. notice required under Section 79, Rajasthan Panchayat Act (hereinafter called the. Act) has not been served upon the Gram Panchayat, Lohawat (defendant No. 2) before filing of the suit, THEreon, the plaintiffs moved an application that they do not want to prosecute their suit against the defendant no,2 and it may be dismissed so far as defendant No. l Gram Panchayat, Lohawat is concerned. Reply was filed by the defendants averring that the suit against the Gram Panchayat is not maintainable for want of notice under Section 79 of the Act, it cannot be withdrawn and got dismissed against it only and it has to be dismissed in toto. After hearing the learned counsel for the parties, the learned trial court dismissed the plaintiff's application for withdrawal of the suit against the Gram Panchayat, Lohawat. It has been contended by the learned counsel for the plaintiff-petitioners that the said application was moved by the plaintiffs under sub-rule (1) of rule 1 and not under sub-rule (3) of rule 1 of Order 23, C. P. C. , as permission to withdraw the suit against the defendant no. 2. was not sought with liberty to institute a fresh suit in respect of the same subject matter against it. The learned counsel for the defendant-non-petitioner no. l supported the order under challenge. He contended that the application under Section 91, C. P. C. has been filed by the plaintiff along with the plaint. Admittedly, the plaintiffs have moved application to withdraw the suit against the defendant No,2 (Gram Panctayat, Lohawat ). It was an application under Order 23 rule 1 (1),. C. P. C. It is hot stated in the application that they may be permitted to withdraw the suit with liberty to institute a fresh suit in respect of the same subject matter against the Gram Panchayat, Lohawat. Thus it was not an application under order 23 rule 1 (3), C. P. C. Admittedly, the proviso to sub-rule (1) of rule 1 of Order 23, C. P. C. is not applicable in this case. The plaintiff may withdraw his suit at any time against all or any of the defendants, if he does not intend to file a fresh suit in respect of the same subject matter. No adjudication or order of the court is required. An application intimating the court of such an intention is needed under Order 22 rule: 1 (1), C. P. C. It is thus clear that the learned trial court has acted with material irregularity in not dismissing the suit against the Gram Panchayat, Lohawat (defendant No. 2) when the plaintiffs had intimated it by moving the said application. Accordingly, the revision petition is allowed. The suit is dismissed, so far as defendant No. 2 (Gram Panchayat, Lohawat) is concerned. No order as to costs. . ;