Judgment Madan Mohan Prasad, J. 1. This application in revision is directed against an order dated the 16th November 1976 passed under section 11-A of the Bihar buildings (lease, Rent and Eviction) Control Act, 1947. 2. It is said that opposite-party nos.1 and 2 (plaintiffs) filed a suit alleging that the house in question belonged to them and defendant first party their interest being 2/3rd and 1/3rd respectively and it had been let out to the petitioner-defendant second party on a monthly rental of Rs.150. the plaintiffs alleged that the defendant second party had not paid rent of the house to them for the period beginning with January, 1972. Accordingly, notice under section 106 of the Transfer of Property Act was served but the tenant did not vacate the premises and for that reason he became a trespasser. Thus on the 27th February 1974 the present suit was filed for eviction of the tenant and a decree for arrears of rent for the period January 1972 to April 1972 and for, damages with effect from May 1972 at the same rate. The plaintiffs, therefore, claimed Rs.400 as their 2/3rd share of the amount of Rs.600 the rental of the aforesaid months and Rs.2100 as their share of the damages of Rs.3,150, for the period May 1972 to January 1974. 3. During the course of the suit, the opposite party filed a petition under section 11-A of the Act praying for an order to deposit the rent and damages amounting to Rs.2,500 as mentioned in the plaint. It was further said that no payment had been made even during the pendency of the suit and thus a sum of Rs.2800 was claimed in that respect. Further prayer was made for deposit of monthly rental month by month. 4. A rejoinder was filed by the petitioner saying that the petition was not maintainable that unless fair rent had been determined, the prayer; could not be allowed that the rental originally being Rs.100 and having been unlawfully increased to Rs, 150 in violation of the provision of section 4 of the Act of the prayer could not be granted and further that the defendant had paid up to April 1976 the arrears of rent at the rate of Rs.50 per month to defendant first party. 5. 5. The learned Subordinate Judge relied upon the admission alleged to have been made by the petitioners Counsel that there was no prohibition in law against the order for deposit of rent due from January 1972. The court below found the rent from Jannary 1972 to be at the rate of Rs.150 per month due. Accordingly it ordered the defendant to deposit rent from January 1972 to October 1976 by the 1st December 1976 and the monthly rental from november 1976 onward by the 15th of the every next month. This order was passed on the 16th November 1976. 6. It appears that against this order the petitioner came up to this Court in its revisional jurisdistion. The application was filed on 8th November 1976 and was numbered as Civil Revision no, 1393 of 1976. It appears next that on the 14th December 1976, the application was placed for admission. It was, however, adjourned to the next date On that date, it appears, Counsel prayed for permission to withdraw the application and such permission was granted. Thereafter it appears that the petitioner filed an application for review of its order before the court below on the 16th December 1976. It was, however, fixed for hearing on 17th January 1977. Not waiting until that date, on the 5th January 1977 itself, the present application in revision was filed and it was admitted on the 6th January 1977. 7. Before I deal with the arguments of the learned Counsel for the petitioner in support of the application. I would like to dispose of the preliminary objection raised by Mr. Mahesh Prasad learned Counsel for the opposite party. He contends that in view of the withdrawal of the earlier application in revision, the present application is not maintainable. In this connection jt has been urged that the withdrawal of the earlier revision application should be deemed to be at par with withdrawal of a suit and, therefore, it is governed by order XXIII Rule 1 of the Code of Civil Procedure. Next it is said that even an appellate court by virtue of the power under section 107 (2) of the Code can exercise powers under Order XXIII Rule 1 of the Code of Civil Procedure and the High Court while excrcising its revisional jurisdiction exercises the powers of the appellate court. Next it is said that even an appellate court by virtue of the power under section 107 (2) of the Code can exercise powers under Order XXIII Rule 1 of the Code of Civil Procedure and the High Court while excrcising its revisional jurisdiction exercises the powers of the appellate court. On these grounds, it is said, that the withdrawal of the civil revision application must be deemed to be a withdrawal of the claim under order XXIII Rule 1 and the petitioner is thus precluded from raising the same claim by the present application. 8. On the other hand, Mr. Rajgarhia appearing for the petitioner has urged that Order XXIII Rule 1 has no application, that the principle upon which the aforesaid Rule is founded is not application in revision, that this Court in the case of Nasiruddin Haider V/s. Hakim Mahammed Tahir and others, A. I. R.1936 Patna 119), has decided that second application in revision is not barred by the rejection of an earlier one and that the matter would not be governed by the principle of res Judicata. 9. The basic question on the arguments of the learned Counsel for the opposite party is whether Rule 1 of order XXIII has any application. It will be necessary to read the Rule for the purpose of deciding the point aforesaid : - "1. (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 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 term 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 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 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. " It is well known that sub-rule (2) of Order XX III Rule 1 relates to granting recognition to the inherent right of a plaintiff to withdrawn his suit, or to abandon any part of his claim. Subject to the cases mentioned in the proviso to sub-rule (1), the Court cannot refuse to grant the right of the plaintiff to abandon his claim or withdraw his suit. Sub-rule (3), however, applies to a case which is different in nature and there the leave of the court has to be obtained in order that the plaintiff may not be precluded from bringing a fresh suit. That happens in a case where the suit is likely to fail by reason of formal defect or for any sufficient ground for allowing the plaintiff to institute a fresh suit. It will appear that under the old Code of Civil Procedure, 1908, sub-rule (2)contained the provisions of sub-rule (3) of the Code of Civil Procedure (Amendment) Act, 1976. The fundamental principle on which Rule 1 is based is to avoid the multiplicity of suits and give finality to litigation. It will appear that under the old Code of Civil Procedure, 1908, sub-rule (2)contained the provisions of sub-rule (3) of the Code of Civil Procedure (Amendment) Act, 1976. The fundamental principle on which Rule 1 is based is to avoid the multiplicity of suits and give finality to litigation. If once a person has instituted a suit in order to assert a claim and once he withdraws it, on principle of public policy, he should not be allowed to raise the same claim over again. In the same manner where a person abandons a part of his claim which he was entitled to, public policy dictates that he should not be allowed to make a claim again for that part which he had abandoned earlier. The point which deserves notice is that it is with regard to proceedings where a claim is made and abandoned, that ws have Rule 1 to take care of it. That leads to the question as to whether a petition asking a court to find that a particular order of a court below which is erroneous in law or on facts is tentamount to the making and asserting of a claim by way of a suit. The answer is obviously in the negative. It is true that even an appellate court can pass an order under Order XXIII Rule 1 of the Code, but the order has, how ever, to refer to the withdrawal of the suit or abandonment of a claim. An analogy has been drawn by learned Counsel between suit and petition in revision. In my view the fallacy lies there. Learned Counsel has not been able to place before me any decision of any Court in support of the proposition of law enunciated by him, nor has he been able to place before me any provision of law apart from Order XXIII Rule 1 itself to show that the same principle can be applied to withdrawals of appeal or withdrawals of petitions in revision or for the matter of that withdrawal of any petition whatsoever. 10 It is, however, well-recognised that the principle of res judicata and even constructive res judicata may be applied where a person has not made a claim which he should have made Order II Rule 2 will debar him from making further claim. That Rule itself contains a part of the general law of res judicata. 10 It is, however, well-recognised that the principle of res judicata and even constructive res judicata may be applied where a person has not made a claim which he should have made Order II Rule 2 will debar him from making further claim. That Rule itself contains a part of the general law of res judicata. Another part is to be found in section 11 of the Code. Yet another part of the same Rule is to be found in section 115 of the Evidence Act. But in order to apply the principle of res judicata in respect of such matters it will have to be seen whether the pre-conditions requisite are complied with. In the present case, a petition in revision was filed and was withdrawn without any adjudication of the matter. Could this operate res judicata. The principle of res judicata was recently discussed in the case of Daryao and others V/s. State of u. P. and others, ( AIR 1961 SC 1457 ). The question there was whether a decision under Article 226 of the Constitution by a High Court operates as res jidicata barring similar application under Article 32 of the Constitution. Gajendragadkar, J. , speaking for the Court, gave illustrations of relevant cases and in that connection, the learned Judge observed that if the petition filed in the High Court under Article 226 of the Constitution is dismissed not on the merit, but because of the laches of the party or because it is held that a party had an alternative remedy available to it, it would not operate as a bar to making of a subsequent petition. The learned Judge went on to say that if a writ petition is dismissed in limine and the order is on the merits, it would be a bar but if the petition is dismissed in limine without passing a speaking order, then such a dismissal cannot be treated as creating a bar ot res judicata. The learned Judge further said that, "if the petition is dismissed as withdrawn, it cannot be a bar to a subsequent petition. . . . . . . . . , because in such a case there has been no decision on the merits by the Court". It is well known that the principle applies only when the matter is heard and finally decided by a competent court. . . . . . . . . , because in such a case there has been no decision on the merits by the Court". It is well known that the principle applies only when the matter is heard and finally decided by a competent court. That being essential to the rule where there has been no adjudication of the matter obviously there will be no application ot res judicata. In the present case, therefore, it is not open to the opposite party to say that the present application is barred on the principle of res judicata by the earlier application to this Court which had been withdrawn. 11. Learned Counsel for the opposite party has also relied on a Bench decision of this Court in the case of Ramautar Thakur and others V/s. State of bihar, (A. I. R.1957 Patna 33) where it was held that the dismissal of a criminal revision in default is not a judgment within the meaning of Sec.369 of the code of Criminal Procedure. This decision has been cited to show that the order allowing withdrawal passed in the instant case cannot be said to be a judgment, and, therefore, it cannot be said to operate as res judicata. The point for consideration in the aforesaid case was whether or not it amounted to a "judgment. " and if it could not be altered on account of section 359 of the Code of Criminal Procedure, it is not necessary to invoke the authority of this decision for the purpose of deciding the issue arising in the present case. Obviously an order allowing a petitioner to withdraw is an order and by no stretch of imagination can it be said to be a judgment or a decree. 12. It has, however, to be found out as to what were the circumstances in which the earlier petition in revision was allowed to be withdrawn. It has been staled in the present application that the learned Subordinate Judge had relied, as stated above, on an admission said to have been made by the Counsel and had based his decision thereon. The ground was taken in that petition refuting that statement of fact, but there was no certificate by the Counsel concerned as to what admission if any, he had made before the court. The ground was taken in that petition refuting that statement of fact, but there was no certificate by the Counsel concerned as to what admission if any, he had made before the court. In these circumstances, it is said that the application was withdrawn and was allowed to be withdrawn. The statement of facts has not been challenged by the other side. It appears that along with the present application a certificate from the lawyer concerned with regard to the statement which he had made before the court below has been annexed. The withdrawal in such circumstances had withdrawn his claim if any. As I have shown above, the claim even in respect of the adjudication of the point at issue was. pressed the very next day before the court below and soon thereafter before this Court by way of second application. Obviously, therefore, there was no giving up of any claim whatsoever deliberately. In such a case the principle underlying Rule 1 of Order XXIII cannot be applied. 13. There is another point of distinction which must be borne in mind. When a suit is failed before a Court it has got to be decided in the manner laid down by law. The right to sue is a right of the person which cannot be denied to him. The litigant when he calls upon the court to adjudicate a petition under section 113 of the Code of Civil Procedure, however, invokes a discretionary power of this Court. The Court may refuse to adjudicate upon a matter which it is called upon to do by a petition under section 115 of the said Code. The analogy between a suit and an application in revision, as I said earlier, is fallacious. For the reasons aforesaid I find no merit in the preliminary objection and, accordingly, overrule it. 14. Turning now to the merits of the case, learned Counsel for the petitioner has raised only two points, namely (1) that the order inasmuch as it asks for deposit of rent prior to the suit is bad and (ii) that the rate at which the arrears have been ordered to be deposited is also incorrect. Learned counsel has given up the point that unless the fair rent of the building was assessed, the Court could not order deposit of rent at the rate at which it was last paid. Learned counsel has given up the point that unless the fair rent of the building was assessed, the Court could not order deposit of rent at the rate at which it was last paid. Learned Counsel for the opposite party has also conceded, in all fairness, that the order of the court below with regard to the first point cannot be sustained. It is obvious from the order passed by the learned Subordinate judge that even though the suit was filed in February 1974, he has directed the petitioner to deposit rent due from January 1972 onwards. The order in respect of the period prior to the suit viz. , the period from January 1972 to january 1974 is accordingly set aside. The order will, however, remain good with regard to the deposit of arrears of rent beginning with February l974 until october 1976, as directed by the learned Subordinate Judge. 15. There is yet another obvious error inasmuch as the learned Subordinate judge has directed the petitioner to deposit rent at the rate of Rs.150 per month. True the rate at which the rent was paid last was Rs 150/- as admitted by the petitioner in his petition before the court below. His case, however, was that he had paid rent to defendant no.1 in so far as his share of Rs.50/-per month was concerned. The court has not gone into this matter and has given no finding as to whether the rent of Rs.50/- per month apart from the share of the plaintiffs was due. In any case defendant no.1 did not make any application before the court below for deposit of his share of rent There was only the petition by the plaintiff before the learned Subordinate Judge in which he had claimed his share of the rent at Rs.100/- per month. I, accordingly, set aside the order of the learned Subordinate Judge with regard to the rate also. It appears that by an order of this Court the petitioner was asked to deposit arrears of rent at the rate of Rs.100/- per month since the date of the institution of the suit up to 31st January 1977 by the 15th February 1977, i am told that this has already been deposited. It appears that by an order of this Court the petitioner was asked to deposit arrears of rent at the rate of Rs.100/- per month since the date of the institution of the suit up to 31st January 1977 by the 15th February 1977, i am told that this has already been deposited. A similar order was passed that the rent for the month of February 1977 and for the subsequent months were to be deposited at the rate of Rs.100/- per month until the decision of the present application in revision. This, also I am told, has been done. In that view of the matter, and in view of the order passed by me, as stated above, the petitioner will in now go on depositing the monthly rent ai the rate of Rs.100/- per month the court below. In view of the fact that upon the records of this case both the matters could be decided by this Court and this Court can pass the same orders which the court below could, it is not necessary to send back the case to pass necessary orders as prayed by the learned Counsel for the petitioner. 16. In the result, the application succeeds in part as Indicated above. There will be no order as to costs. Application allowed.