JUDGMENT

H.N. Agarwal, Member. - This is a revision against the order dated 13.9.1973 passed by Sri R.C. Nigam, Additional Commissioner, Rohilkhand Division, Bareilly in Appeal No. 74 of 1971.

2. I have heard the learned counsel for the parties and have gone through the record.

3. The revisionists, Tota Ram and Nathoo Lal, had field a suit under Section 229-B, U.P.Z.A. & L.R. Act against the present opposite parties Smt. Leelawati, the State of U.P. and the Gaon Sabha. The suit as contested by Smt. Leelawati and was dismissed by the Sub-Division Officer by his order dated 4-1-71. The present revisionists filed an appeal before the Commissioner. When the appeal came up for hearing, they moved an application that the suit suffered from formal defect and prayed for permission to withdraw the suit with the liberty to file a fresh suit. The Additional Commissioner has rejected this application by his order dated 13-9-73. This order has been challenged in revision.

4. The grounds taken in the revisions are, firstly that the impugned order is no order in the eyes of law; Secondly that in view of the fact that no notices under Section 80 C.P.C. and 106 Panchayat Raj Act had been given to the State Government and the Gaon Sabha, the Plaint itself was liable to be rejected on this formal defect and the Additional Commissioner was bound to allow the application under order 23 Rule 1 of the C.P.C. thirdly, that the courts below erred in law in holding that as the State Government and the Gaon Sabha had taken on objection, the suit cannot fail, and lastly, that the courts below have based their judgment on surmises and conjectures.

5. Order 23 Rule 1 of the Civil Procedure Code reads as follows:-

"23. R. 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 here the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII 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 person.

(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 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 precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit of a claim under sub-rule(1) or to withdraw under sub-rule(1) any suit or part of a claim without the consent of the other plaintiffs".

6. It has to be seen whether the requirements of the above rule were fulfilled in the present case. Sub-rule(3) requires that the Court must be satisfied either(a) that the suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fre