FOR RAJASTHAN AT JAIPUR BENCH ORDER S.B. CIVIL WRIT PETITION NO.3402/2012 (Ramjilal v. Board of Revenue & Ors.

Mr. Babu Lal Gupta, for the petitioner. Mr. Sharad Joshi, for respondent Nos.2 to 6. BY THE COURT This petition has been filed against the order dated 17.06.2011, passed by the Board of Revenue in a second appeal filed before it at the instance of the respondent Nos.2 to 6 under Section 224 of the Rajasthan Tenancy Act, 1955 (hereinafter 'the Act of 1955'). The contention of the counsel for the petitioner is that even while the Board of Revenue refused to interfere in the appeal and dismissed it holding that a second suit filed by respondent Nos.2 to 6 was not maintainable in law, the Board of Revenue wrongly allowed the appellants therein Shri Gulla Ram & Ors. (herein respondent Nos.2 to 6) to withdraw the earlier suit No.83/2010 filed before the SDO, Amer and thereafter file a fresh suit including all the lands in dispute. Counsel would submit that the liberty granted by the Board of Revenue to the appellants before it was wholly 2 without jurisdiction and the Board of Revenue ought to have confined itself to the subject matter of the appeal. It is submitted that the liberty granted by the Board of Revenue under its order dated 17.06.2011 of which the petitioner is aggrieved tantamounts to circumventing the provisions of Order 2 Rule 2 CPC. Counsel for the respondent Nos.2 to 6 would submit that following the order dated 17.06.2011 of the Board of Revenue holding that a second suit filed subsequent to an earlier suit No.83/2010 before the SDO, Amer was not maintainable, the earlier suit No.83/2010 before the SDO, Amer was withdrawn with liberty to file afresh and thereafter a fresh suit has indeed been filed on

04.07.2011 and is pending before the SDO, Amer. Counsel submits that all these facts were in the knowledge of the petitioner at the time of filing of the writ petition on

12.03.2012 as the earlier suit was withdrawn on 29.06.2011 and a fresh suit was filed on 04.07.2011. It is submitted that even otherwise the observations of the Board of Revenue in the impugned order dated 17.06.2011 of which the petitioner states to be aggrieved are innocuous because plaintiffs always have a right under Order 21 Rule 1 CPC to move an application for withdrawal of the pending suit with liberty to file afresh on the same cause of action. 3 I have heard the counsel for the parties and perused the writ petition as also the impugned order dated

17.06.2011, passed by the Board of Revenue. The order passed by the Board of Revenue on

17.06.2011 in the second appeal even while dismissing it merely observed that the appellants in the said appeal could withdraw the earlier suit and file it afresh including all land in dispute therein which right was always available in law. Each plaintiff has a right to file an application for withdrawal of the suit with liberty to file afresh. The Board of Revenue was merely stating the obvious in observing that the appellants before it (herein respondent Nos.2 to 6) could avail of their remedy in accordance with law. The observations of the Board of Revenue were gratis and did not confer any legal right qua the respondent Nos.2 to 6. There is no occasion for the petitioner to be aggrieved of such an innocuous observation which conferred no extra legal right on the respondents. Further, as pointed out by the counsel for the respondents that the earlier suit was withdrawn on

29.06.2011 with liberty to file afresh and a fresh suit has already come to be filed on 04.07.2011. I find no force in the writ petition which deserves to be dismissed with costs 4 for having been filed without any legal foundation and in fact contrary to the provisions of Order 21 Rule 1(3) CPC which allows a Court, on its satisfaction, to permit a plaintiff to withdraw a pending suit with liberty to institute a fresh suit on the same cause of action. Further the petitioner in this petition has suppressed the fact of the withdrawal of the suit earlier filed by the respondents Nos.2 to 6 on

29.06.2011 with liberty to file afresh granted by the SDO, Amer and the subsequent filing of another suit on

04.07.2011 before the SDO, Amer even though they were aware of these facts at the time of the filing of this petition on 12.03.2012. The petition is in the facts therefore deserving of dismissal with cost of Rs.10,000/- to be paid to the Rajasthan State Legal Services Authority. Copy of the order to Rajasthan State Legal Services Authority. (ALOK SHARMA), J MS/- All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. - Manoj Solanki, Jr. P.A.