AMITAV K.GUPTA,J. - (1.) This writ application has been filed for issuance of appropriate writ or direction upon the respondent No.3 to allow the application filed by the petitioner under Order 23, Rule 1 of the Code of Civil Procedure for abandonment and withdrawal of this case filed under Section 71A of the Chotanagpur Tenancy Act in S.A.R. Case No.122 of 2010-11, pending before the respondent No.3 for adjudication.
(2.) Learned counsel for the petitioner submits that he has filed S.A.R. Case No.122 of 2010-11 for restoration of land, but subsequently he came to know that the land has never been recorded in the names of his ancestors and has filed an application for withdrawal of the said S.A.R case, but till date no order has been passed on the said application. It is submitted by the learned counsel that the writ application may be disposed off with a direction to the S.A.R court, i.e., the respondent No.3, to pass appropriate order in the light of the opinion given by the Government Pleader dated 30.04.2013 (Annexure - 13), which reads as under:- "1. Withdrawal of suit or abandonment of part of claim - (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. 2. An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other persons. 3. Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are 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 such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. 4. Where the plaintiff,- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim. Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs. Further, with regard to application of the provisions of CPC in a proceeding under section 71A of CNT Act, I find that according to Section 265 - "Untill rules are made under Sub-section (1), and subject to those rules when made and to other provisions of this Act, the provision of the Code of Civil Procedure shall, so far as they are inconsistent, with this Act, apply to all suits, appeals and proceedings before the Deputy Commissioner under this Act and to all appeals from the decision passed in such suits or proceedings. Further according to view laid down by our own Hon'ble High Court reported in 2005 (2) JCR 56 Jhr - "By virtue of the provision of Section 264 of the Act the State of Bihar is to frame rules in relation to the proceeding under the Act. By virtue of Scheduled Area Regulation, 1949, the aforementioned provision of Section 71-A was inserted. Similar, by virtue of Chhotanagapur Tenancy (Amendment) Act, 1969, the provision of Section 46 (4-A was inserted. The State of Bihar although framed rule in relation to the proceeding Under Section 46 (4-A of the Chhotanagpur Tenancy Act, but no such rule has been framed in relation of Section 71-A thereof. In absence of the rules, the proceedings must be governed by virtue of or under the provisions contained in the Code of Civil Procedure as would appear from Section 265 of the Act. In the event the provisions of Code of Civil Procedure are made applicable in relation to a proceeding Under Section 71-A of the Act the respondent No.4 who filed the application for getting his land restored stand in the category of plaintiff and the petitioner would stand in the category of a defendant and such a proceeding should be treated as suit and/or proceeding analogous thereto. Under the circumstances mentioned above, I am of the view that, in absence of any rules with regard to the withdrawal of case under section 71A of the CNT Act, the provision as contained under Order 23, Rule 1 of CP.C would apply and according to the said provision of CPC, plaintiff/petitioner may withdraw his case being SAR Case No.122/10-11 according to the contingencies laid thereunder."
(3.) Md. Shamim Akhtar, learned G.A. - III is in attendance.;