R. M. S. KHANDEPARKAR, J. :- When the matters came up for hearing, a preliminary objection was sought to be raised on behalf of the respondent No.1 about the non-maintainability of these appeals on the ground that the appellants had earlier preferred similar appeals against the impugned orders and they were withdrawn unconditionally and, therefore, the present appeals against the same orders which was sought to be impugned in the earlier appeals and which were withdrawn, are not maintainable.

2. The learned Advocate for the appellants drawing the attention to the averments in the appeal memo submitted that the earlier L.P.As. were withdrawn as this Court had opined that the appellants could seek review of the orders which were sought to be impugned in those appeals and that the appellants were allowed to withdraw those appeals. Attention has also been drawn to the decision of Apex Court in Haryana State Co-op. Land Development Bank vs. Neelam, (2005) 5 SCC 91 in support of the contention that the principle of res judicata is not applicable when the appeals were withdrawn without any adjudication of the matter on merits and therefore the second L.P.A. would be maintainable.

3. The present L.P.As are filed against the orders of 29-10-2004 in Writ Petitions No.2337 and 2338 of 2004 respectively whereby the learned Single Judge has dismissed those writ petitions. It is not in dispute and it is also a matter of record that earlier L.P.As. No. 209 and 210 of 2004 respectively were filed against the impugned orders and both the L.P.As. came up for hearing on admission on 15-12-2004, on which date upon hearing the Advocate for the appellants, the following orders were passed -

"On the motion made by the learned counsel for appellant, the appellant is allowed to withdraw the appeal. The same is disposed of as withdrawn. No order as to costs."

4. It is the case of the appellants that after the withdrawal of the appeals, the appellants filed Review Application against the impugned orders. However, the same came to be dismissed by the orders dated 7-7-2005 and that there being no alternative remedy left to the appellants, they have filed the present appeals.

5. In the memo of appeals, it has been specifically stated thus:

"The said appeal was listed before the Division Bench of this Hon'ble Court for admission on 15-12-2004 and after hearing the appellants, the Hon'ble Division Bench was of the opinion that the appellants may seek review of the said order and on that understanding, the Hon'ble Division. Bench granted liberty to the appellants to withdraw the said appeal with oral liberty/suggestion to move an application for review before the Single Judge."

6. As already seen above, the order dated 15-12-2004 in both the earlier appeals specifically recorded withdrawal of the appeals on motion being made in that regard by the counsel for the appellants. There is no whisper about any suggestion being made by the Court or opinion having been expressed by the Court regarding the availability of remedy of review to the appellants in relation to the impugned orders. It is not understood on what basis the alleged understanding was arrived at by the appellants for the purpose of withdrawal of the appeals. Be it as it may, the fact remains that the appeals were withdrawn unconditionally. The record of the Court in that regard in both the appeals is very clear.

7. Order XXIII, Rule 1(4) of the Code of Civil Procedure provides that 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 precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. This provision of law, therefore, clearly provides that in case of abandonment of any suit or even a part of such claim or withdrawal of such suit or part of such