JUDGMENT Sangeeta Chandra, J. 1. This writ petition has been filed praying for quashing of the orders dated 18.9.2018 and 4.10.2017 passed by the Additional Commissioner (Administration), Lucknow Division, Lucknow and Up-Ziladhikari Mahmoodabad, District Sitapur, respectively. 2. It has been submitted by the learned Counsel for the petitioners that the' property in dispute relates to one Singhara Singh s/o. Bhan Singh. Gur-deep Singh, the late husband of the petitioner No. 1, being the son of Singhara Singh had laid the claim to the property of Singhara Singh, but before he could lay such claim, one Balkar Singh, the real brother of Singhara Singh had got his name mutated in P.A.-11 on 24.12.2003. The late husband of the petitioner No. 1 filed a declaratory suit on 31.3.2004 under section 229-B of the U.P. Z.A. & L.R. Act in the Court of Sub-Divisional Magistrate, Mahmoodabad, Sitapur. In the said suit, notice had been given on 19.3.2004 to the Gram Panchayat Surjanpur as well as to the State of U.P. but the suit was filed without waiting for the mandatory period of 60 days. An application under section 80(2) of the C.P.C. was also filed along with the plaint for giving exemption of notice. The Up-Ziladhikari, Mehmooda-bad, Sitapur, considered the urgency and ordered for registering of the case and issued summoned to the defendants (the contesting respondent Nos. 3 and 4 to this writ petition). The defendants filed the written statement also on 9.8.2004. After written statement was filed raising objection to the maintainability of the suit and also on merits, the suit was dismissed on 22.12.2004 on the grounds of maintainability has having been instituted before the expiry of the prescribed period of notice under section 106 of the U.P. Panchayat Raj Act and also on merits making certain observations with regard to the alleged misrepresentation by the plaintiff Gur-deep Singh. 3. On account of legal advice, Gurdeep Singh again after giving due notice to the State of U.P. under section 80 of the C.P.C. and the Gram Panchayat, Surjanpur under section 106 of the U.P. Panchayat Raj Act, filed a declaratory suit under section 229-B of the U.P. Z.A. & L.R. Act on 2.5.2014 in the Court of Sub-Divisional Magistrate, Mahmoodabad, Sitapur. The defendants i.e. the respondent Nos. The defendants i.e. the respondent Nos. 3 and 4 herein filed their written statement on 20.11.2014 saying that since on an earlier occasion in the declaratory suit filed by Gurdeep Singh certain observations were made on merits also in the order of dismissal dated 22.12.2004, the second suit was not maintainable. 4. The petitioners filed an application on 12.6.2017 under Order XXIII Rule 1 of the C.P.C. for granting permission to withdraw the suit and with a liberty to file a fresh suit. The said application was opposed by the defendants. The Sub-Divisional Magistrate, Mahmoodabad, by his order dated 4.10.2017 has partly allowed the said application regarding withdrawal of the suit but he has not given any relief to the writ petitioners for filing a fresh suit in the matter. 5. On legal advice, the petitioners challenged the order dated 22.12.2004 in Appeal as the same had made observations on merits of the case while dismissing the suit as not maintainable, whereas against the order dated 4.10.2017 the petitioners filed a Revision, which Revision has been rejected by the order dated 18.9.2018. 6. It has been submitted that the Appeal that was filed on 15.5.2018 against the order dated 12.12.2004 has been rejected on the ground of delay alone which was challenged in Writ Petition No. 29906 (M/S) of 2018 and which petition has been dismissed as withdrawn today by this Court. 7. With regard to the orders passed on 18.9.2018 and 22.12.2004, learned Counsel for the petitioners has made his submissions that the only course open for the trial Court while accepting the application under Order XXIII Rule 1 of the C.P.C. was to either allow it in its entirety or reject the same. There could not have any liberty granted to the plaintiffs to withdraw the suit without granting them liberty to file a fresh one. 8. There could not have any liberty granted to the plaintiffs to withdraw the suit without granting them liberty to file a fresh one. 8. Learned Counsel for the petitioners has placed reliance upon the judgment rendered by this Court in Naresh Kumar v. State of U.P. and others 2017 : 2017 (136) RD 163 : 2017 (123) ALR 661, wherein this Court after placing reliance upon several judgments of Hon'ble Supreme Court and of the Coordinate High Courts has held that the dismissal of a suit as withdrawn cannot constitute a decree as there is no observation on merits of the case and when the application under Order XXIII Rule 1(3) of the C.P.C. is considered, it should be treated as a whole and if the Court finds that there is no good reason for withdrawal, or if the case of the respondent would in any way be prejudiced by allowing the withdrawal, it should refuse the application in its totality and should proceed with the suit/appeal on merits. However, it is not open for the Court to split up the prayer made by the plaintiffs in his application under Order XIII Rule 1 by allowing the withdrawal of the suit and refusing the liberty to institute a fresh suit in respect of the same subject matter. 9. Sri Vimal Kishore Verma, learned Counsel for the respondent, does not dispute the legal proposition as laid down in the judgments cited by the learned Counsel for the petitioners, but he says that one suit was dismissed as not maintainable and also on the ground of misrepresentation on 22.10.2004 against which Appeal has been rejected and the orders have attained finality after dismissal of Writ Petition No. 29906 (M/S) of 2018 as withdrawn. 10. Now with respect to the second suit that is the subsequent suit filed by the plaintiff. If this Court directs fresh consideration, it would amount to unending hardship for the respondents to the said suit. 11. This Court is not considered with the hardship of the respondent No. 3 and 4. This Court is only concerned with the legality of the order dated 4.10.2017, where the application under Order XXIII Rule 1 has only been partly allowed without granting any liberty to the plaintiff to file a fresh suit. 11. This Court is not considered with the hardship of the respondent No. 3 and 4. This Court is only concerned with the legality of the order dated 4.10.2017, where the application under Order XXIII Rule 1 has only been partly allowed without granting any liberty to the plaintiff to file a fresh suit. This Court is also concerned with the legality of the order passed in Revision dated 18.9.2019, where certain observations have been made that the respondent would be unnecessarily prejudiced if the plaintiffs are allowed to get the suit dismissed as withdrawn with a liberty to file a fresh suit as they would fill up a lacunae and the submissions in a fresh suit to be filed. 12. The orders dated 18.9.2018 and 4.10.2017 been passed against the law settled by Hon'ble Supreme Court as well as by this Court are set aside. The application under Order XXIII Rule 1 C.P.C. filed before the Sub-Divisional Magistrate, Mahmoodabad, Sitapur, shall be considered afresh by the Sub-Divisional Magistrate and the orders shall be passed thereon after hearing both the parties. 13. The writ petition stands partly allowed.