The revisional court has the power to grant permission to withdraw the suit under Order xxiii, Rule 1, Civil Procedure Code.

( 1 ) HEARD Sri A. C. Tewari, counsel for the petitioner and Shri Krishna Mohan, counsel appearing for contesting respondent Nos. 2 to 7.

( 2 ) COUNTER and rejoinder-affidavit have been exchanged and with the consent of the parties, the writ petition is being decided finally.

( 3 ) FACTS of the case as emerge from the pleadings of the parties are ; petitioners filed a suit under section 229b of U. P. Zamlndari Abolition and Land Reforms Act praying for declaration of their title. Along with the plaint, an application for granting of leave under Section 80 (2) of civil Procedure Code and Section 106 of U. P. Panchayat Raj Act was given by the plaintiff. It was prayed that leave be granted to file the suit without notice. The trial court on 30. 5. 1997 passed an order after hearing objection of the defendants. By the said order, the trial court allowed the plaintiff to file suit without notice and fixed date for written statement. A Revision no. 473 of 1996-1997 was filed by defendant-respondents under Section 333 of U. P. Zamindari abolition and Land Reforms Act. Against the order dated 30. 5. 1997 passed by trial court in the aforesaid revision, an application was filed on 14. 10. 1998 by the petitioners who were respondents in the revision under Order XXIII. Rule 1 and Section 151 of C. P. C. praying that suit be permitted to be withdrawn with liberty to file fresh suit. Revision was heard by the revisional court and was decided by the order dated 30. 11. 1998. While deciding, the revision, the revislonal court allowed the application of the plaintiffs for withdrawal of the suit with liberty to file fresh suit. Before the revislonal court, it was stated on behalf of the respondent that if the plaintiffs are granted permission to withdraw the suit, the said permission be granted with conditions that they will not file any suit in future. The revisional court took the view that trial court itself has accepted that due to mistake, the leave for filing the appeal could not be granted initially by the Court which was subsequently granted by the trial court. Revisional court also held condition that no suit shall be filed in future is not acceptable and the plaintiffs are entitled for withdrawal of the suit with the liberty to file a fresh suit. Against the order of revisional court dated 30. 11. 1998, a revision was filed by the respondents which revision has been allowed by board of Revenue vide its order dated 7. 12. 2000. The petitioners have challenged the order dated 7. 12. 2000 passed by Board of Revenue.

( 4 ) THE counsel for the petitioners raises following submissions :

(1) The Additional Commissioner has rightly allowed the application of petitioners for withdrawal of the suit with the liberty to file fresh suit in the facts of the present case, which order has been illegally interfered with by the Board of Revenue. (2) The question of non-giving of notice under Section 80, could have been objected by the State and the State having not objected the aforesaid want of notice, it was not open to the respondents to raise objection regarding want of notice. Counsel for the respondent Shri Krishna Mohan refuting the submission of the counsel for the petitioners has raised following submissions in support of the impugned order : (i) The revisional court i. e. , Additional Commissioner had no jurisdiction to allow the application of the petitioners for withdrawal of the suit. (ii) The application was in fact not maintainable before the revisional court. (iii) The order of the Additional Commissioner giving liberty to the petitioners to file fresh suit is without jurisdiction. Reliance has been placed on the judgment of the Apex Court in K. S. Bhoopathy and Ors. v. Kokila and Ors. JT 2000 (6) SCC 212.

( 5 ) AFTER having heard the counsel for the parties and after perusing the record, following two issues arise for determination in the present case :

(A) Whether while deciding a revision under Section 333 of U. P.