Patna High Court
Kishori Singh vs State Of Bihar And Ors. on 8 April, 1985
Equivalent citations: AIR1985PAT298, AIR 1985 PATNA 298, (1985) PAT LJR 605
JUDGMENT S.S. Sandhawalia, C.J.
1. Would the unconditional withdrawal of a writ petition under Article 226 of the Constitution operate as a bar to the filing of a second petition on the same facts and in respect of the same cause of action is the somewhat significant question which arises at the threshold in this appeal under Clause 10 of the Letters Patent.
2. Because of the pristinely legal nature of the question aforesaid and the view I am inclined to take thereon, it seems wholly unnecessary to recount the facts in any great detail. Suffices it to mention that the issue arises from a somewhat insignificant dispute about the transfer of the appellant and the contending claims to officiate on the post of a Headmaster between him and the contesting respondent. It seems to be common ground that earlier the appellant had preferred Civil Writ Jurisdiction Case No. 4505 of 1982 in the High Court for challenging the identical impugned order which was, however, unconditionally withdrawn on 2-12-1982. Thereafter he preferred yet another Civil Writ Jurisdiction Case No. 4875 of 1982. This came up before the learned single Judge and he recorded the following order :
"13.12.82-- It appears that the petitioner had earlier filed a writ application against the impugned order which after hearing was permitted to be withdrawn. Now a fresh application has been filed. In view of the fact that the petitioner had already filed a writ application and withdrawn the same, I am not inclined to entertain a second application in respect of the same grievance. This application is dismissed."
3. Learned counsel for the appellant in assailing the aforesaid order had contended that a litigant is entitled to approach the Writ Court at any time and for any number of times for the same relief because a constitutional right had been given to him under Article 226 of the Constitution. In other words, the somewhat tall submission forcefully pressed was that till the time a petition filed by the litigant was disposed of on merits by passing a speaking order, the right of the litigant was not taken away nor could he be precluded from filing the petition under Article 226 if his earlier petitions were disposed of without dealing with the controversy on merits.
4. It appears to me that the line of approach in the aforesaid argument is oblivious of a factor which is fundamental. It is settled beyond cavil that from its very origin the writ jurisdiction is discretionary. There is no vested right in a writ petitioner to secure the relief which he claims. It is well settled that the same may be denied to him for a wide variety of reasons other than the pristine merits of the controversy. It is unnecessary to be exhaustive and only a few facets of this aspect may be recounted. A long line of precedents of the final Court has now established the rule that a litigant approaching a Writ Court with gross and unexplained laches for a stale claim may be denied relief without even adverting to the merits of the case. Similarly, the Court may relegate the writ petitioner to an alternative remedy where it exists before rushing to this constitutional forum. Equally a designed and calculated suppression of material facts in order to get an interim relief may disentitle the writ petitioner at the very threshold from the consideration of the merits of the controversy on the golden rule that the litigant must approach the Writ Court with clean hands. The residuary rule that where interest of justice does not demand it necessarily, the Court may decline the issuance of a writ is equally well known. Consequently, the threshold question is whether the refusal to entertain a second writ application on the identical facts and cause of action is a sound exercise of discretion. I am of the view that it is clearly so.
5. What would next call for notice is the fact that this High Court under Article 225 has framed rules for the disposal of applications under Articles 226 and 227 of the Constitution contained in Chap. XXI-C, Patna High Court Rules. It is true that these rules do not in terms make the provisions of the Civil P.C. applicable to the writ jurisdiction mutatis mutandis. However, it is well settled that under Article 226 the High Court may draw upon the principles enunciated in the Civil P.C. which in essence are based on equity, justice and good conscience. It is in this context that the penultimate part of Rule 1 of Chap. XXI-C of the Patna High Court Rules which is in the following terms has to be construed :
"It shall also state whether an application on the same facts had been previously filed before this Court and if so, with what result."
It needs no great erudition that the aforesaid provision is, inter alia, a directive for securing the factual information so that the same and the identical cause of action is not being reagitated in the same forum. This, in essence, would attract the wholesome rule in Order 23 Rule 1 Civil P.C. to the effect that where a lis is withdrawn without express liberty to institute a fresh action in respect of the same subject matter, the litigant would be precluded from instituting a second case in respect of the same subject matter. That the principle enunciated in Order 23 Rule 1 is a sound guideline for justice, equity and good conscience in the realm of procedure seems to be so well accepted that it is unnecessary to either elaborate the matter or cite precedent therefor. Even otherwise it would tend to provide a sound safeguard against the abuse of process and the multiplicity of litigation on the identical cause of action. This aspect was also considered by a Full Bench of five Judges in Teja Singh v. Union Territory of Chandigarh, AIR 1982 Punj and Har 169. It is true that in Writ Jurisdiction (Punjab and Haryana) Rules it is provided by Rule 32 that in the matters which had not been specifically provided, the provisions of Civil P.C. shall apply mutatis mutandis in so far as they are not inconsistent with these Rules. Whilst in our Court there does not exist an identical corresponding rule, yet it appears to me that irrespective of the literal application of Order 23 Rule 1 the larger observation made in the following terms by the Full Bench would be equally attracted in the context of the prevention of any abuse of the Court's process (at p. 180) :
"It may be noticed that the applicability of the provisions of Order 23 Rule 1 shall have a very salutary effect as it would minimise to a great extent the chances of the abuse of the process of this Court. To elucidate the point further, I take an example. A litigant files a petition in this Court which comes up for motion hearing. During the arguments an impression is gathered that the Bench is not agreeing and the petition is likely to be dismissed and on the basis of that impression, the petition is got dismissed as withdrawn. Thereafter, on same facts and in respect of the same cause of action a second writ petition is filed. Now in such case, if the contention of Mr. Anand Swarup is accepted, then the second writ petition must be entertained and disposed of on merits one way or the other by passing a speaking order. Such a course, if adopted, would, in my opinion, not only result in the abuse of the process of the Court, but would also give handle to a dishonest and unscrupulous litigant to harass his opponent."
Yet again, the contention of the learned counsel for the appellant that unless the merits of the controversy are disposed of by a speaking order, the right of litigant to present successive writ petitions on the identical cause of action cannot be taken away is so well answered by the binding precedent of the final Court that it seems unnecessary to elaborate the matter. In Workmen Cochin Port Trust v. Board of Trustees of the Cochin Port Trust, AIR 1978 SC 1283 it has been held unequivocally as under (at p. 1288) :
"Of course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. Similarly, even if one writ petition is dismissed in limine by a non-speaking one word order 'dismissed' another writ petition would not be maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court". Another writ petition from the same order or decision will not lie."
Equally in the case of Teja Singh v. Union Territory of Chandigarh AIR 1982 Punj & Har 169 (supra), the Full Bench on deep consideration of the matter had also concluded as under (at p. 181) : .
"Further, a second petition on similar facts and in respect of the same cause of action by the same party would not be maintainable even if his earlier petition has been disposed of by one word 'dismissed'."
6. To conclude, the answer to the question posed at the very outset is rendered in the affirmative and it is held that the unconditional withdrawal of a writ petition would operate as a bar to the filing of a second petition on the same facts and in respect of the same cause of action.
7. Now, applying the aforesaid rule, it would appear that the order of the learned single Judge is impeccable and beyond the scope of any meaningful challenge. He rightly declined to entertain the second writ application in respect of the identical cause of action. This appeal is consequently without merit and is hereby dismissed with costs.
B.P. Jha, J.
8. I agree.